In his latest book, “The Rule of Nobody: Saving America from Dead Laws and Senseless Bureaucracy,” Philip K. Howard writes about how American lawmakers have abandoned all pretext of common sense and letting people just work things out. For any ill that could possibly befall anyone, there has to be a law.
“America has succumbed to its own intermediate goal. Purging official discretion, not advancing the public good, has become the goal of the Rule of Law,” Howard contends. “Better to prevent a bad choice, even at the cost of banning all good choices. Unquestioned assumptions are the most powerful forces in human affairs. If people assume something is right or wrong, they’ll act on it even to the point of self-destruction. … Americans seem content to pile society high with detailed regulations as long as they succeed in preventing anyone with responsibility from actually making a decision.”
A near-perfect illustration of this observation comes to us courtesy of the late, unlamented Nevada legislative session in the form of Senate Bill 504, described by its backers as an anti-bullying bill, one which Gov. Brian Sandoval has already signed into law.
Yes, there have been problems with school officials being less than aggressive in curbing bullying of fragile school children, in a very few cases leading to tragic outcomes, such as suicide.
But SB504 is a sweeping, all-encompassing, detailed dictation to public school officials of precisely how every imaginable offensive word, gesture or facial expression must be handled and how quickly. It leaves little to discretion or judgment. If it is perceived by the most super-sensitive or supercilious child to be an affront, it must be confronted and dealt with, without fail.
Among the myriad things this law deems to be bullying are “taunting, name-calling, belittling, mocking or use of put-downs or demeaning humor regarding the
actual or perceived race, color, national origin, ancestry, religion, gender identity or expression, sexual orientation, physical or mental disability of a person, sex or any other distinguishing characteristic or background of a person …”
One of the law’s unintended consequences, at least we hope it was unintended, appears to be a prohibition of gender segregation — as in restrooms, locker rooms and showers.
The law prohibits “blocking access” to “any property or facility of a school” on the basis of any of the aforementioned categories, which include sex, gender identity or expression or any other distinguishing characteristic. Can’t block access to the girls’ showers just because he is not a girl.
Nevada’s Supreme Court has long held that laws are to be interpreted according the plain meaning of their texts.
“If the Legislature’s intention is apparent from the face of the statute, there is no room for construction, and this court will give the statute its plain meaning. …” a 2012 ruling declared. “Statutes should be read as a whole, so as not to render superfluous words or phrases or make provisions nugatory.” No matter how ludicrous.
A legal analysis of the law by the Alliance Defending Freedom makes much of the fact the law will force school officials to make student bathrooms and shower facilities available to students who identify with a gender other than their biological gender.
But it also claims the law violates the First Amendment guarantee of free speech. “While SB504 does not impose criminal sanctions, it subjects students to permanent expulsion and teachers and administrators to employment termination and loss of their licenses (and thus livelihood) if they ‘tolerate’ or fail to immediately report an allegation of bullying,” the Alliance reports. “Rather than
maintain the bright lines of Nevada’s pre-SB504 anti-bullying law, SB504 ventures into the uncharted realm of punishing verbal and nonverbal behavior, including ‘gestures.’
“Vagueness in a law carrying severe sanctions may violate basic notions of due process when it fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits or when it may authorize and even encourage arbitrary and discriminatory enforcement.”
The law demands the resolution of any complaint of bullying within 72 hours, certainly carrying implications for due process, fairness, thoroughness and, most importantly, justice.
School officials under this law could be tied up refereeing petty disputes among children instead of teaching them civil behavior and civics and reading and math.
Lawmakers should have left well enough alone and let responsible adults handle things.
The law of unintended consequences always prevails.
Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at firstname.lastname@example.org. He also blogs at http://4thst8.wordpress.com/.