March 17, 2016

When does an argument against vegetarianism become harassment akin to racial harassment — based on someone's belonging to a particular group?

Eugene Volokh calls attention to the case of a 6th-grader who was punished — 5 lunch-hour detentions — for telling a fellow student "it’s not good to not eat meat" and that "he should eat meat because he’d be smarter and have bigger brains" and "vegetarians are idiots."

An administrative judge wrote that the boy's statements "were reasonably perceived as being motivated by a distinguishing characteristic between the two boys, namely vegetarianism, which substantially interfered with the rights of K.S. and had the effect of insulting or demeaning him."

Volokh observes that the judge did not stress the empty insult "vegetarians are idiots," but "treated this statement as on par with polite factual and normative claims (whether accurate or not), such as 'it’s not good to not eat meat' and '[you] should eat meat because [you]’d be smarter and have bigger brains.'"

So would the boy have been punished if he'd limited himself to a substantive argument against avoiding meat? Isn't it significant that vegetarianism can be part of a person's religion or religion-like in its importance to a person? Are children allowed to proselytize in the lunch room? Does it depend on whether they can refrain from insults or do we just not want them arguing about things that go to the deep core of human identity? The question is: How big is this notion of harassment and how small — by contrast — are the free speech rights of school children?
These questions made me remember something Justice Thomas wrote back in 2007 (in the "Bong Hits 4 Jesus" case):
As originally understood, the Constitution does not afford students a right to free speech in public schools.... If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.

In place of that democratic regime, [Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969)] substituted judicial oversight of the day-to-day affairs of public schools.... Tinker has undermined the traditional authority of teachers to maintain order in public schools. “Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.”...
That case was about a silly statement about drugs (with some stray religion). Other cases are about bullying and what counts as bullying. A school might choose an expansive definition of bullying and demand that students be very nice to each other and to respect each other's values and beliefs. As long as there isn't viewpoint discrimination — give detention to the vegetarian who tells the meat eater he's running his life the wrong way — then I don't see what's wrong with setting the rules of deportment.

47 comments:

damikesc said...

So would the boy have been punished if he'd limited himself to a substantive argument against avoiding meat? Is part of the problem that vegetarianism is often part of a person's religion or religion-like in its importance to a person? Are children allowed to proselytize in the lunch room? Does it depend on whether they can refrain from insults or do we just not want them arguing about things that go to the deep core of human identity? The question is: How big is this notion of harassment and how small — by contrast — are the free speech rights of school children?

Free speech rights are non-existent in education for students --- even in higher education.

This ruling is asinine. But it's one of many. And why Trump is doing well. Campaigning against this kind of pure idiocy is a deep well that will never run dry.

Rick said...

"When does an argument against vegetarianism become harassment akin to racial harassment — based on someone's belonging to a particular group?"

Whenever the criticized element is or can be perceived as a symbol of left wing culture.

Ann Althouse said...

"Free speech rights are non-existent in education for students --- even in higher education."

I think you mean to say "free speech rights are violated." I don't like reading that there are no rights, when the point is that you think there are rights but the authorities are acting as if they are not. It's like you're conceding your own argument. I can see how you might feel that your statement is stronger: The government has destroyed rights. But it's ambiguous, and you seem to be saying that the question of the scope of rights is determined by whatever the government is willing to acknowledge. Maybe you want to sound that cynical, but I think it is more helpful to argue that the rights exist and the government is in the wrong.

And the question of free-speech rights in higher education is very different. I don't like seeing them lumped together. Young children need to learn how to act and how to get along.

MayBee said...

"Akin" to racial harassment. It seems like any disagreement can be stretched to become "akin" to racial harassment. That is, if we decide saying something someone doesn't want to hear as harassment. And then, who wants to be harassed for any reason? If I feel much more strongly about the color red than I do about my own race, and someone teases me for liking the color red, then I feel harassed akin to racial harassment.

It won't end. We must all always agree and speak nicely to each other. We must start teaching kids that it is simply unacceptable to exchange different ideas.

MayBee said...

Young children need to learn how to act and how to get along.

Oh man. You just said what I was parodying. Although you are right, kids must learn how to get along. But part of that HAS to be they have to learn how to be disagreed with. They have to learn how to handle criticism. They have to learn how to discuss what they believe in.

Otherwise you *end up* with college students who need safe spaces or who really do think Donald Trump is Hitler and his rallies have to be shut down for the common good.

MayBee said...

In this case, I would guess K.S. stands for Krishna Singh. So vegetarianism is part of his religion. But why can't KS learn to answer back in a reasonable manner? Why can't he learn to explain why he is a vegetarian?

YoungHegelian said...

...for telling a fellow student "it’s not good to not eat meat" and that "he should eat meat because he’d be smarter and have bigger brains" and "vegetarians are idiots."

Back when I was a wee tyke, a time when boys were boys & men were men, this sort of situation would have been resolved between the disputants in the following manner:

"Vegetarians are idiots."

"Well, meat-eaters are doody-heads!"

"Am not!"

"Yeah, you are. Big, big time."

"I'm done, I'm going out to recess. See you outside."

"Okay."

EDH said...

Michael Bloomberg should be in chains, then.

Sebastian said...

"Young children need to learn how to act and how to get along." Specifically, what they need to learn is: 1. when a tiny bit insulted, run to the principal and complain; 2. have principal impose punishment; 3. if student challenges punishment, have judge lay down law. Now, can't we all get along?

Basil said...

Justice Thomas was, as he often is, right about this. Public schools are now run by the most disruptive students and the administrators operate under constant threat of oversight by federal judges. Hardly something that is in the Constitution and another example of the undemocratic role of the Supreme Court over the last fifty or so years.

The Court is now operating much as the Oracles did for the Greeks - reading entrails and making (up) decisions about things they know nothing about and of which they suffer no consequences.

Professor, could you please provide us with the generally applicable rule wherein one can know, in advance, what parts of the Constitution must be complied with by the government and what parts can lawfully be ignored? Also, could you please provide a generally applicable rule which lets people know what subject matter qualifies to be added to the Constitution by a 5 person vote of the justices and which, therefore, doe snot require an Amendment?

Thank you in advance for the help!

traditionalguy said...

This is Sharia Law battle space prep.I would posit back that Meat Eating is a basic human right. Therefore, speech promoting the eating of meat or against the eating of meat can not be made into a rule of prohibition on a pretense that such speech violates a religion.

Birches said...

Ugh. Between this and the other story about the burglar kid who can't be expected to get his money honestly, I now know why Trump is winning.

We deserve every bit of what's coming.

Bryan Townsend said...

Christ on a raft, can't a couple of kids have an argument these days without the overbearing presence of Authority?

Basil said...

Of, to answer your question, never. "Harassment" is a tool used by leftists to punish and silence those with whom they disagree. The Soviets used similar tools, such as "insufficiently supportive of the revolution", "reactionary" and "capitalist".

Ignorance is Bliss said...

Young children need to learn how to act and how to get along.

That's what dodge-ball was for. Well, that and culling the weak from the herd.

Darrell said...

Leftists are idiots.

Curtiss said...

Clearly the vegetarian children at this school should be provided with a safe, separate dining space free from hurtful remarks and the smells of pizza, tacos and charred animal flesh wafting through the air like a giant cloud redolent of olfactorist oppression.

MadisonMan said...

Administrators are looking for things to be outraged about, I guess.

How nice that they're drawing fat paychecks. Thanks taxpayers!

I'll guess we never hear about the sensible Adminstrative responses to such super-minor spats though. Selective reporting.

Jim said...

If that had been the standard for behavior when I was in 6th grade, this 58 year old would still be on lunch detention. What in the hell happened to our country?

Dan Hossley said...


Aren't Administrative Judges at the bottom of the legal barrel? I thought they were lawyers that couldn't get a real job.

Jason said...

If they want students to learn to respect authority figures, perhaps authority figures shouldn't be f****ing morons.

Jason said...

So because we recognized the right of a few kids in Des Moines to silently wear black armbands to protest an unpopular war almost 50 years ago - a war that Congress was shortly to abandon anyway after we squandered almost 50,000 American lives - that's the reason students are disruptive today?

Soaring divorce rates, drug abuse, single parent families, Hip-Hop culture and Union rules prohibiting firing bad teachers has nothing to do with it, eh?

zipity said...

And the signs of the coming Apocalypse just keep on coming...

Fernandinande said...

An administrative judge wrote [administrative judge stuff]

An administrative judge likes to insult and harass little kids.

zipity said...
And the signs of the coming Apocalypse just keep on coming...


The Four Wolfmen of the Apocalypse are NOT vegetarians.

Achilles said...

The progressives move their agenda forward. They are not good people. This is bad for society and bad for those 2 kids. But progressives do not care about anything other than the ability to tell other people how to live and what to do.

Anyone who supports these people and these actions are bad people too.

rcocean said...

Higher education is voluntary and deals with adults. K-12 isn't. I've never understood how "the constitution" gives the federal courts the right to decide what Johnny and Jill in Nowhere Nebraska can say or not say.

For some reason, everyone just accepts Judicial Power and thinks its great. I wonder what crazy new "constitutional rights" are in store for us if Hillary get elected.

James Longfellow said...

'Young children need to learn how to act and how to get along.'

OK. But why is that the main purpose of the school?

The elementary school classroom should not be yet another forum where each side tries to entrench its gains and raise up the next generation of troops in the culture wars. If we allow that then we have no basis to be surprised when Google complains about the lack of coders, there is continual bitching about the lack of women in STEM fields, etc etc. People have to figure out what the hell they want from schools because there is only so much time and energy to go around for each student in an elementary school classroom room, which are chronically underfunded and where the student teacher ratio is often 25-30:1.

I'm for order in the elementary school classroom but only to the extent that disorder interrupts the transmission of necessary intellectual content. Beyond that, in my view it is not the schools' job. If the problem is that little Tommy is disrupting the class, send the bugger to detention. If the problem is that little Billy got his feeling hurt, man up tiger.

Bay Area Guy said...

"Leftists are idiots"

And, so are Vegetarians.

Rocketeer said...

So the kid is a vegetarian, AND an effete mental wuss being raised by same. The child won an administrative hearing, but will ultimately lose in life.

HoodlumDoodlum said...

Ann Althouse said...As long as there isn't viewpoint discrimination — give detention to the vegetarian who tells the meat eater he's running his life the wrong way — then I don't see what's wrong with setting the rules of deportment.

I agree--the parents' beef should be w/the teachers, school administration, and school board; the problem should be worked out at the school or district level. They set the rules and if the rules are bad then they should change the rules.

It's worth pointing out, though, that viewpoint discrimination in this context might be more...subtle, shall we say, then in others. What I mean is that many educational institutions have a strong ideological orientation/perspective, and you'd want to take that into consideration (that is to say, on many a campus the Left is heavily dominant so when a school says it's applying a neutral rule in an evenhanded manner we shouldn't take their word for it). In the instant case, though, I think your position is the correct one Professor.

mikee said...

I recall a nun in my elementary school telling a student to keep their eyes on their own plate at lunch, or suffer the consequences.

All it really takes is one adult in a school setting to avoid an awful lot of stupid social behavior and the consequences.

dbp said...

I think most people would agree that school administrations have a great deal of authority to limit free speech among students on school grounds. But at what point does the school's behavior reach a level of draconian enforcement such that it requires judicial review?

I think reasonable school administration might give a five day suspension if they had instructed the child to be respectful of other's choices and he had persisted after that.

damikesc said...

I think you mean to say "free speech rights are violated." I don't like reading that there are no rights, when the point is that you think there are rights but the authorities are acting as if they are not. It's like you're conceding your own argument. I can see how you might feel that your statement is stronger: The government has destroyed rights. But it's ambiguous, and you seem to be saying that the question of the scope of rights is determined by whatever the government is willing to acknowledge. Maybe you want to sound that cynical, but I think it is more helpful to argue that the rights exist and the government is in the wrong.

From what I've understood, colleges do have the power to put in speech codes and not be in violation of the law. I don't know WHY they're legal (they are usually funded by governments, which should seem to disallow it). But if they're legal, and if I'm wrong let me know, it indicates that there are no actual free speech rights. Because the "offensive speech" is the only one that actually needs protection.

Lucien said...

Why bury the lede?

A little kid was given detention for five days and ADULTS LITIGATED THE ISSUE!

I don't care what the forum is. I don't care if there are some middle schools so idiotic that they wouldn't let the kid in because of detention on his record.

Neither the parents, nor the administrators, nor the lawyers, nor the people hearing the dispute had the sense to refuse to allow such a trivial matter to be litigated.

Does anyone doubt that the total expense involved to argue over five elementary school lunch periods was at least $10,000?

And that's just the financial cost, not the contribution to moral and intellectual decay.

(BTW I am a litigator by trade.)

damikesc said...

Lucien brings up a good point.

Do lawyers never turn down a case because it's really too dumb and inconsequential to litigate? Why do courts spend a moment even humoring this?

Jim S. said...

Ron Swanson was unavailable for comment.

mccullough said...

Make everything against the rules and then enforce the rules against those you don't like or those you disagree with.

Jim S. said...

Oh wait, no he wasn't:
https://www.youtube.com/watch?v=-S6ELeKjPco

Bryan C said...

"Young children need to learn how to act and how to get along."

Well, yeah. And learning how to get along includes cultivating the ability to hear things you disagree with without internalizing them as personal affronts. The sooner this is learned the better, for everyone involved.

caplight45 said...

Just cuts the kids nuts off.

Mary Beth said...

Ideally he would have been told that it's none of his business what another person chooses to eat or not eat, but that could be a hard stance for the school to take when so many schools have rules about what can be included in a packed lunch.

Bill Peschel said...

I wonder if they would be so quick to suspend the kid if he advocated vegetarianism?

Jonathan Graehl said...

Isn't it time we stop pretending we can police away every discomfort? It's like a Pee-Wee Herman 'today's secret word' level distraction to serious people and sixth-graders. Until then, I'll enjoy the parade of absurd legalisms.

Smilin' Jack said...

When does an argument against vegetarianism become harassment akin to racial harassment — based on someone's belonging to a particular group?

When assholes and motherfuckers become protected groups, children will have nothing left to say to each other.

David said...

The kid is being harassed. He's a 6th grader! If you want to teach him how to make a more substantive argument, great. But not through punishment because he talks like 6th graders usually talk.

Gabriel said...

@James Longfellow:elementary school classroom room, which are chronically underfunded and where the student teacher ratio is often 25-30:1.

Per-pupil spending on K-12 has tripled since 1970, in constant dollars. Our schools are somehow no better.

Our student-teacher ratio has been 25-30 since I first attended school in 1981, and while at the high end of the OECD average, not as high as Japan and Korea, the schools of which are never characterized as low-performing.

JamesB.BKK said...

Easy solution: Abolish public schools. Now, if only there was a way to stop the federal busybodies from relentlessly trying to tell us supposedly free citizens what to think and not think and what to say and not say.