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Tennessee Pro-Bullying Bill: Exactly Whom Is It Designed To Protect?

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What does it mean for LGBT young people if Tennessee’s pro-bullying bill is passed into law? And whom is this legislation really designed to protect?  U.K. anti-bullying expert and author Ian Rivers weighs in, from across the pond.

I recently read with interest on Twitter about a bill going through the Tennessee House (House Bill 1153) and Senate (Senate Bill 760) which seeks to ensure that First Amendment rights are not curtailed by the the accusation of bullying. The Bill was introduced in the House by Rep. Vance Dennis (R-Savannah) and in the Senate by Senator Jim Tracy (R-Shelbyville), and some on Twitter fear that it will give those who hold certain negative beliefs, attitutudes or convictions about minority groups, particularly sexual minority groups, a license to bully. The Bill describes bullying as “any act that substantially and measurably interferes with a student’s educational benefits, opportunities or performance, that takes place on school grounds, at any school-sponsored activity, on school-provided transportation or at any official school bus stop,”  and that has the effect of:

  • Physically harming a student or damaging a student’s property;
  • Knowingly placing a student in reasonable fear, as determined objectively, of physical harm to the student or damage to the student’s property; or
  • Creating a hostile educational environment.

So far so good. However the Bill then goes on the say that creating a hostile educational environment, “shall not be construed to include discomfort and unpleasantness that can accompany the expression of a viewpoint or belief that is unpopular, not shared by other students, or not shared by teachers or school officials.” In other words, if a student, teacher or official has a view and expresses it in terms to students or their peers that are construed as negative, such views should be protected under the First Amendment, particularly if they are founded upon a deep-seated conviction.

The Bill goes on the clarify further (and these clarifications are important) in what circumstances such discomfort or unpleasantness will be allowed:

The policy shall not be construed or interpreted to infringe upon the First Amendment rights of students and shall not prohibit their expression of religious, philosophical, or political views; provided, that such expression does not include a threat of physical harm to a student or damage to a student’s property.

Furthermore:

Harassment, intimidation, or bullying prevention task forces, programs, and other initiatives formed by school districts, including any curriculum adopted for such purposes, shall not include materials or training that explicitly or implicitly promote a political agenda, make the characteristics of the victim the focus rather than the conduct of the person engaged in harassment, intimidation, or bullying, or teach or suggest that certain beliefs or viewpoints are discriminatory when an act or practice based on such belief or viewpoint is not a discriminatory practice as defined in 4-21-102(4).

In the summary provided by the Tennessee General Assembly we are told that 4-21-102(4) relates to human rights law and that a discriminatory practice constitutes, “any direct or indirect act or practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, or any other act or practice of differentiation or preference in the treatment of a person because of race, creed, color, religion, sex, age or national origin.”

Although sexual orientation is not included, it should also be recalled that Tennessee was also the state that passed the “Don’t Say Gay“ Bill sponsored by Senator Stacey Campfield and supported by Senator Tracy both in the Senate and in the Education Committee. A redoubtable couple!

So what does this mean for LGBT young people of Tennessee if this bill is passed into law?

The first question we should ask is, can bullying ever be excused because of a religious, philosophical or political view? The answer is clearly, no!

Bullying as defined by the Bill is an action meant to cause physical and/or emotional harm, and cause damage to property. Thus, any action or inaction taken by a school or district that results in a young LGBT person feeling intimidated (by the fear of reprisal) or being harmed in any way may be construed as a violation of the Fourteenth Amendment. Indeed, several school districts and principals have found themselves before the courts for violating the Fourteenth Amendment rights of LGBT students.

In my book, “Homophobic Bullying: Research and Theoretical Perspectives,” I provide examples of some of the cases that have been brought before the courts. For example, in 2004, a school district in California settled out of court (including legal fees of approximately $1.1 million) following a case where a group of students were taunted with sexual slurs and pornography, and, in one case, physically assaulted. The school district claimed that they were immune from legal action because their obligation to protect students from homophobic attacks was unclear. The district’s lawyers also claimed that efforts it made to tackle bullying absolved it of  any liability.

The Ninth Circuit Court of Appeals disagreed and determined that inaction by school administrators constituted intentional discrimination. So, be warned principals and superintendents, a religious, philosophical or political view does not absolve you from liability if things get “out-of-hand” in your school or district.

Secondly, it is important to ask the question, does the First Amendment protect those who choose to use their perceived freedom of speech to make another feel uncomfortable? This is a tough one, but I take heart from a ruling by the U.S. Supreme Court to bolster the resolve of LGBT young people, their families, advocates and allies. In Snyder v. Phelps et al. (2010), a case where the Westboro Baptist Church (WBC), aka, “God Hates Fags,” picketed the funeral of Marine Lance Corporal Matthew Snyder, the opinion of the Court, delivered by Chief Justice Roberts, was as follows:

“Although the boundaries of what constitutes speech on matters of public concern are not well defined, this Court has said that speech is of the public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community’.”

Because the WBC were picketing peacefully on issues of “public concern” (their banners and placards are reported to have said, “Thank God for Dead Soldiers” and “Fags Doom Nations”), and because they did not impede the funeral nor did the content of those banners and placards relate directly to Matthew Snyder or his family, the WBC’s First Amendment rights were upheld. So, the question then becomes is bullying ever in the public interest, and how do we tell it apart from free speech in the Tennessee context?

If a student walks into school one day wearing a t-shirt that says, “God Hates Fags” and he or she is wearing that t-shirt because of a deep conviction about the immorality of homosexuality, it may be the case that asking him or her to remove it constitutes an infringement of his/her First Amendment rights. As the Supreme Court ruled, being outraged is not suitable justification for applying the law, nor is the context in which such outrageous things are said. However, one would hope that no parent would ever allow their child to attend school wearing such a t-shirt, and that schools enforce a suitable dress code to ensure that this does not happen.

Alternatively, in class, civics for example, a teacher engages in a discussion about human rights and points to the fact that some countries include sexual orientation in human rights legislation. The teacher goes on to say that in some states in the U.S., same-sex couples are allowed to marry. One student then shouts out, “Matt is going to marry another boy,” and the class laugh out loud and make a number of questionable gestures towards Matt, who becomes very uncomfortable. Does this constitute bullying?

Yes, it probably does. Even if the incident goes no further, the fear of further embarrassment (taken objectively), and the fact that it was directed at a particular student whose discomfort is not in the public interest seems to suggest that First Amendment rights may not apply, even if it is claimed that the comments were founded upon deeply held religious, philosophical or political beliefs.

Of course such scenarios would have to be tested before the courts, but it leaves us with the question, for whom is this legislation? It is not for the teachers and administrators of the schools in Tennessee, nor for the young people in their charge. It is unfocused and unmangeable. It is not for the parents of LGBT students who will find the nuanced arguments of measureable interference in their child’s schooling difficult to navigate and argue before a school or district board holding on dearly to its purse strings. It cannot be for the protection of bullies, for no public servant would ever condone bullying of any form. In the end it is a frivolous piece of legislation, that will cause confusion rather than stem unrest, and leave students, parents, teachers and administrators unsure of how to tackle the bullying of those who are or are perceived to be LGBT.

Image via Flickr

 

Ian Rivers is Professor of Human Development at Brunel University, London. He is the author of ‘Homophobic Bullying: Research and Theoretical Perspectives’ (Oxford, 2011), and has researched issues of discrimination in LGBT communities, particularly among children and young people, for nearly two decades.

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News

Trump’s Scheme for Absolute Immunity From State Prosecutions Forever: Report

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Having successfully obtained delays in his federal trials and his state trial in Georgia, possibly until after the November election, Donald Trump is now seeking an “insurance policy” to protect him from any future state prosecutions if he again becomes president.

The indicted ex-president who turns 78 next month “seems convinced that if he wins another four years in the White House, state prosecutors will still be waiting for him on the other side of his term — ready to put him on trial, or even in prison, just as they are now,” Rolling Stone reports.

“To avoid such risks, the former and perhaps future president of the United States wants Congress to create a very specific insurance policy that would help keep him out of prison forever, two sources familiar with the matter tell Rolling Stone. Trump vaguely alluded to this idea last week outside his New York criminal hush money trial, when he said he has urged Republican lawmakers to pass ‘laws to stop things like this.'”

Trump “has pressured” Republican lawmakers on Capitol Hill to do so, describing it as imperative that he signs such a bill into law, if he again ascends to the Oval Office.”

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Rolling Stone also notes, “Trump appears fixated on the idea of passing a law to give former American presidents the option of moving state or local prosecutions into a federal court instead, the two sources add.”

Trump “has hinted at a legislative push to limit his exposure to such criminal charges. In an improvised press conference outside the Manhattan courthouse on Tuesday, Trump said he’s been telling the Republican lawmakers who want to attend his trial and show solidarity to focus on legislation instead.”

“We have a lot of ’em. They want to come. I say, ‘Just stay back and pass lots of laws to stop things like this.’”

In 1973, while still President but under the cloud of the Watergate scandal, Richard Nixon said, “People have got to know whether or not their President is a crook.”

If Trump is elected in November, he can have his Attorney General drop any federal prosecutions he is currently facing. That may call into question, for some legal experts, the actions of the far-right justices on the U.S. Supreme Court who have delayed ruling on his immunity claim, and U.S. District Judge Aileen Cannon.

On May 7, Judge Cannon indefinitely suspended the Espionage Act case, also known as the classified documents case, against Donald Trump.

READ MORE: ‘You Just Don’t Do It’: Federal Judge Denounces Alito’s Flags as ‘Stop the Steal’ Stickers

Foreign policy, national security, and political affairs analyst and commentator David Rothkopf this week blasted the judge:

“Judge Cannon is not, as commentators and cartoonists would have it, just working on behalf of Trump. She is actively working on behalf of the enemies of the US who have and would benefit from the national security breaches she is effectively defending and making more likely.”

U.S. Rep. Adam Schiff (D-CA) earlier this month declared, “The courts are deliberately delaying justice — and effectively denying it.”

This coming week Americans may get a verdict in the New York criminal case against the ex-president. If it comes, it may be “guilty” or “not guilty,” but it could also be a hung jury, forcing another trial which also would not likely come before the election.

If Trump is elected in November, and can get his “insurance policy” legislation passed, he could possibly avoid all criminal trials for the rest of his life.

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OPINION

Pence Defense of Alito’s Insurrectionist Flag Highlights Its Ties to Violent Government Overthrow

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Mike Pence is defending far-right U.S. Supreme Court Justice Samuel Alito, whose ethics and ability to serve on the nation’s highest court are being questioned after The New York Times revealed he had been flying a highly-controversial flag used by the January 6 insurrectionists, neo-Nazis, and a far-right neo-fascist hate group. Democrats are demanding the justice recuse himself from all cases involving Donald Trump and the 2020 presidential election, and some are also demanding his resignation or impeachment.

The former Trump Vice President, in defending Alito, may have made the situation even worse for the 74-year old jurist by highlighting the flag’s ties to revolution and the overthrow of government. In his defense Pence also encourages all Americans to fly the flag: “The ‘Appeal to Heaven’ flag is part or our proud heritage of Faith and Freedom and every American should be proud to fly it,” he writes.

“The Appeal to Heaven Flag” dates back centuries, to the American Revolution, but in recent years was very clearly co-opted by the radical religious right and was seen being carried by the insurrectionists during the assault on the U.S. Capitol, some of whom who chanted, “hang Mike Pence,” as he and his family were being whisked away by Secret Service on January 6:

MSNBC columnist Sarah Posner, who for years has been writing about religion and politics, on Thursday noted, “the more one knows about the background of the flag, the more chilling its presence at [Alito’s] house becomes.”

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Posner says the flag is “an unmistakable emblem for an influential segment of Christian nationalists who claim the 2020 election was stolen from Donald Trump, contrary to God’s will, and that believers’ spiritual warfare is essential to restoring God’s anointed leader to his rightful office.”

“It was one of numerous Christian nationalist flags and other iconography carried by Trump supporters Jan. 6 and at the Jericho March, a series of prayer rallies that were like jet fuel for the insurrection,” Posner explains. “The Jericho March featured right-wing evangelical and Catholic speakers alongside militants such as conspiracist Alex Jones, Trump’s disgraced national security adviser Michael Flynn, and Oathkeepers founder Stewart Rhodes, now serving an 18-year prison sentence for seditious conspiracy and other crimes.”

Posner adds the flag “originated in Revolutionary times as a call to take up arms against unjust rulers who ignored the pleas of their citizens.”

Pence also refers to the Revolutionary War in his defense of Justice Alito, ignoring that the Revolutionary War was won several hundred years ago, and ignoring that a sitting U.S. Supreme Court justice promoting the very concept of taking up arms against rulers, unjust or otherwise, is, as constitutional scholar and University Professor Emeritus at Harvard University, Laurence Tribe wrote, “close to treason.”

Pence calls the “controversy” of Justice Alito’s flag-flying “absurd and anti-historical.” He quotes English Enlightenment philosopher John Locke, promoting his idea of the right to revolution, to replace a government.

In its Bombshell report Wednesday announcing the existence of a second Alito flag tied to the insurrectionists, The New York Times explains the Locke tie to the “Appeal to Heaven” flag.

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“Since its creation during the American Revolution, the flag has carried a message of defiance: The phrase ‘appeal to heaven’ comes from the 17th-century philosopher John Locke, who wrote of a responsibility to rebel, even use violence, to overthrow unjust rule. ‘It’s a paraphrase for trial by arms,’ Anthony Grafton, a historian at Princeton University, said in an interview. ‘The main point is that there’s no appeal, there’s no one else you can ask for help or a judgment.'”

Coincidentally or not, Grafton’s “trial by arms” seems to echo Trump acolyte Rudy Giuliani’s January 6 speech in which he specifically called for “trial by combat.”

Religious studies scholar Matthew Taylor, quoted in The New York Times’ report on Alito’s “Appeal to Heaven” flag, told CBS News (video below) Christian nationalist leader Dutch Sheets “was given one of these flags and he believed that he received a prophecy when he received this flag, that it was a symbol of a revolution that would take place in America, a spiritual revolution that would reconstitute the United States as a truly Christian nation.”

He adds the “Appeal to Heaven” flag has become a “very potent symbol of Christian nationalism, Christian Trumpism, opposition to abortion, opposition to gay marriage, and the desire for a more Christian America.”

Watch the videos above or at this link.

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OPINION

‘You Just Don’t Do It’: Federal Judge Denounces Alito’s Flags as ‘Stop the Steal’ Stickers

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A senior U.S. district judge is denouncing U.S. Supreme Court Justice Samuel Alito‘s flying of two insurrection-related flags at his homes in Virginia and New Jersey, declaring the actions “improper. And dumb.”

Judge Michael Ponsor, 77, who has served on the federal bench since 1984, writes in a Friday New York Times op-ed that he has “known scores, possibly hundreds, of federal trial and appellate judges pretty well,” and “can’t think of a single one, no matter who appointed her or him, who has engaged or would engage in conduct like that.”

“You just don’t do that sort of thing, whether it may be considered over the line, or just edging up to the margin. Flying those flags was tantamount to sticking a ‘Stop the steal’ bumper sticker on your car. You just don’t do it.”

Justice Alito’s first flag scandal came late last week, when The New York Times reported an upside down U.S. flag had flown at his Virginia home jut days before Joe Biden was sworn in as President. That flag is associated with the insurrectionists who stormed the Capitol on January 6, 2021. As of January, more than 1200 who were there that day have been arrested and charged with crimes.

Alito blamed his wife, claiming she made the decision to fly the flag upside down, which according to the U.S. flag code should only be done to signal distress. Martha-Ann Alito, her husband claimed, had gotten into an argument with a neighbor and manifested her anger by flying the “Stop the Steal” flag.

READ MORE: ‘Investigate Now’: As Alito Scandal Grows Pressure Mounts on ‘MIA’ and ‘AWOL’ Judiciary Chair

The second flag scandal came on Wednesday, when The Times again revealed an Alito insurrection-related flag, this time at his New Jersey home, where the Alitos were flying the “Appeal to Heaven” flag which has ties both to the insurrectionists, and to extreme right Christian nationalists.

Justice Alito has not made any public comment defending his second flag.

Judge Ponsor offered up a hypothetical to counter Justice Alito’s claim his wife was to blame, in this case, an example of him presiding over a death penalty case.

“Let’s say my wife was strongly opposed to the death penalty and wished to speak out publicly against it. I’m not saying this is true, but let’s imagine it. The primary emotional current in our marriage is, of course, deep and passionate love, but right next to that is equally deep and passionate respect. We would have had a problem, and we would have needed to talk,” Ponsor explained.

“In this hypothetical situation, I hope that my wife would have held off making any public statements about capital punishment, and restrained herself from talking about the issue with me, while the trial unfolded. On the other hand, if my wife had felt strongly that she needed to espouse her viewpoint publicly, I would have had to recuse myself from presiding over the case, based on the appearance of partiality.”

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Note he mentions as a sitting federal judge he would have applied the same standards that jurors are expected to observe: to not discuss the case with anyone, including their spouses.

And should there have been a discussion, or if she were to air her views publicly, he would be forced to recuse himself from the case.

Justice Alito has not recused from any 2020 presidential election cases, any Trump-related cases, any insurrection-related cases.

That includes the Trump “absolute immunity” case the Supreme Court heard in April, for which they have yet to rule.

The Supreme Court “recently adopted an ethics code to ‘guide the conduct’ of the justices,” Ponsor observes. “One of its canons states that a justice should ‘act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’ That’s all very well. But basic ethical behavior should not rely on laws or regulations. It should be folded into a judge’s DNA. That didn’t happen here.”

READ MORE: Trump Adviser Scanned and Saved Contents of Box That Had Classified Docs: Report

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