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A bill has been introduced in the Oklahoma legislature, aiming to penalize public school students who participate in the therian and otherkin subcultures (people who identify as animals or as fictional creatures) and the furry fandom (people interested in anthropomorphic animal characters). It says (emphasis added),

Students who purport to be an imaginary animal or animal species, or who engage in anthropomorphic behavior commonly referred to as furries at school shall not be allowed to participate in school curriculum or activities. The parent or guardian of a student in violation of this section shall pick the student up from the school, or animal control services shall be contacted to remove the student.

Does the animal control clause violate the Eighth Amendment's prohibition of cruel and unusual punishment?

Someone
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    Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – Dale M Jan 20 '24 at 21:45
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  • @Someone one is too many – Trish Jan 26 '24 at 18:04
  • @Trish one isn't enough for protection according to https://meta.stackexchange.com/questions/52764/what-is-a-protected-or-highly-active-question: "[P]rotect questions that are attracting *a lot* of non-answers or very poor answers (spam, etc.) from new users" (emphasis added). If it gets several, protection is appropriate, but if it's only one or two, then those answers should just be deleted without protecting the question. – Someone Jan 26 '24 at 18:07

2 Answers2

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The bill is rather vague, but not very long, so I'll first describe the sorts of "behavior" that I think the law applies to, and then go through the relevant Constitutional issues.

TL;DR: I don't think it violates the Eighth Amendment, but it might violate the First Amendment depending on how it is interpreted and applied.

The bill excludes the following students from school:

  1. "Students who purport to be an imaginary animal or animal species"
  2. "[Students] who engage in anthropomorphic behavior commonly referred to as furries at school"

(1) appears to be a restriction on student speech at school. It is therefore subject to the rather deferential standard established in Tinker v. Des Moines (in which a group of students wore black armbands to protest the Vietnam War, and successfully sued to defend their right to do so after the school tried to ban it). If a school can show that student speech "would materially and substantially disrupt the work and discipline of the school," then it may be restricted, but otherwise, students can say what they want at school. If students are going around calling themselves furries, and this is causing significant actual disruption, then the school may be justified in prohibiting this behavior. But if the speech is banned on a purely speculative basis, with no evidence of disruption, then the courts will tend to look on that less favorably. Since this ban makes no mention of disruption, I tend to think the courts would disapprove of it, but it would probably depend on the specific facts of the case.

(2) is very vague, and frankly I have no idea what it is talking about, but I think it probably does extend to at least some expressive conduct. However, most of the conduct I can think of very likely would be disruptive enough to satisfy Tinker v. Des Moines. For example, if a student is walking around on all fours and making animal noises, that is probably going to be at least a little disruptive at any level higher than Kindergarten. Similarly, if a student decides to show up in a fursuit, most schools are probably going to find some part of the dress code that it purportedly violates, and send the student home (which is for the best, as fursuits are notoriously prone to overheating and generally incompatible with everyday use).

The mention of animal control is amusing but probably irrelevant. The bill does not specifically authorize animal control to take any action other than "removing" the student. If a police officer or school resource officer "removed" the student from school grounds, that would (under reasonable circumstances) not be seen as an Eighth Amendment violation (or indeed a criminal penalty of any kind), and substituting animal control for the police doesn't change that analysis. The fact that animal control is not trained to do this sort of thing obviously makes it a bad idea, but the Constitution is not intended to prevent state legislatures from passing any and all bad ideas into law.

Kevin
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  • Thank you! I think clause (a) is intended to refer to the therian and otherkin subcultures, while (b) is for furries, but as you said, it's quite vague, and this doesn't really affect the answer. Because of how confusing it is, could the law potentially be considered unconstitutionally vague? The "anthropomorphic behavior commonly known as furries" thing could be construed quite narrowly (e.g. "anthropomorphic behavior" is fine as long as you don't specifically associate yourself with the furry fandom), or broadly (taken to an extreme, singing "Are You Washed in the Blood" could be included... – Someone Jan 20 '24 at 06:51
  • ... because it does, after all, refer to a person as an animal metaphorically. That's basically what furries do, so is it included? The 1A issue is obvious with this interpretation, though.) – Someone Jan 20 '24 at 06:55
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    @Someone: Under the constitutional avoidance doctrine, I tend to expect that courts would try to interpret the law as narrowly as is reasonable given the wording, but it might still run into 1A issues, especially with the "purport to be an imaginary animal" language (it is difficult to read that as anything other than a restriction on speech). – Kevin Jan 20 '24 at 07:07
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    As a human, I engage in anthropomorphic activity most of the time. That's... kind of part of being human. Perhaps the bill meant to refer to zoomorphic activity instead? Otherwise, this bill would apply pretty exclusively only to those students who did not behave like animals and instead behaved like humans. Sadly, the legislators seem to have more passion than they do an understanding of what words mean. – terdon Jan 22 '24 at 15:07
  • It sounds like the bill doesn't actually grant any new powers. Given that schools can already remove students for disruptive behaviour or for dress code violations, what's the point of the bill? – Steve Melnikoff Jan 22 '24 at 16:44
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    @terdon I'm not sure about that. Anthropomorphism is the attribution of human traits, emotions, or intentions to non-human entities (Wikipedia), although some dictionaries don't specify "non-human" (e.g. Wiktionary). On the other hand, anthropormorphising is a very common human behaviour; most of us say things like "my laptop is angry with me" or "this chair doesn't like being sat on", and that's anthropomorphising (albeit not in a "furry" way). – kaya3 Jan 22 '24 at 19:09
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    I'm not sure I agree with the last paragraph. You say substituting animal control for police doesn't change the analysis, but I don't think that makes sense. It's certainly "unusual" for an agency responsible for dealing with animals to police humans, and it could certainly be seen as cruel to imply children are animal/subhuman, even if they choose to dress as or identify in some way with animals. – Radvylf Programs Jan 22 '24 at 19:22
  • @kaya3 precisely. Furries, however, attribute animal traits to humans. It would only be anthropomorphism if they were actually animals and yet were wearing clothes, talking and walking around on two legs. Here we have humans taking on animal traits, nobody is taking on human ones, hence no anthorpomorphism. – terdon Jan 22 '24 at 20:23
  • Examples of non-disruptive expressive behavior that (2) might be construed to prohibit would be wearing animal-themed clothing accessories, such as a cat-ear headband, making animal-themed gestures, such as miming licking one's hand to smooth one's hair, or making animal-themed sounds, such as imitating purring. I think examples like these might clear the Tinker v. Des Moines analysis. – isaacg Jan 29 '24 at 07:21
  • @RadvylfPrograms: If it's not a criminal punishment, then "implications" are wholly irrelevant. The Eighth Amendment does not prohibit the government from making people feel bad, embarrassing them, or doing otherwise obnoxious things to them, unless those acts are punishments for some crime. Some of those actions are prohibited by e.g. the Fourth Amendment (unlawful search/seizure), but a Fourth Amendment claim in this context would be laughed out of court (the government can remove you from the government's property with very little justification). – Kevin Jan 29 '24 at 09:30
  • @Kevin The law defines some activity that is not allowed (dressing as a furry in school) and a negative consequence for doing so (being removed by animal control). That seems pretty consistent with "punishment" – Radvylf Programs Jan 29 '24 at 14:22
  • @RadvylfPrograms: Removal from government property is not a criminal punishment (you're free to go as soon as you're off their property). I would suggest you ask a separate question if you're still confused about this, because the comments are a poor place to fully explain why. – Kevin Jan 29 '24 at 17:48
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The Eighth Amendment prohibition against cruel and unusual punishment only deals with criminal punishment. See Ingraham v. Wright, 430 U.S. 651, 666–68 (1977). It would not be applicable to the circumstance you've described. See footnote 40:

Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. ... the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.

The prohibition on excessive fines from the Eighth Amendment however, has been extended to apply to civil forfeiture as a kind of "punishment." See Austin v. United States, 509 U.S. 602 (1993).

Jen
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  • So there's no constitutional limit on what punishments can be imposed in non-criminal cases? – Someone Jan 19 '24 at 16:22
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    Punishments are only imposed in criminal cases. This isn't a punishment, rhetoric notwithstanding. – user6726 Jan 19 '24 at 16:28
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    So there's no constitutional limit on what disciplinary actions can be imposed in non-criminal cases? – Dominique Unruh Jan 19 '24 at 17:06
  • Or would this be a due process violation? (Maybe that should be a separate question?) – Someone Jan 19 '24 at 17:13
  • @DominiqueUnruh Ingraham v. Wright, 1977: "An examination of the history of the [Eighth] Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes." – Nuclear Hoagie Jan 19 '24 at 17:20
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    It's almost certainly not cruel and unusual punishment to remove a student from school, as this happens quite frequently. Certainly if animal control did show up and say "Son, can you come with us?" that's not going to meet most people's definitions of cruel and unusual. The legislation might imply that they'll be removed in a cage or something, but it leaves it open. (Of course there may be other legal challenges, e.g. first amendment.) – Stuart F Jan 19 '24 at 21:51
  • @StuartF like Jen said, the 8A doesn't apply to this law, but if it did, I wouldn't be surprised if the dehumanizing aspect of having animal control remove the student make it cruel and unusual. – Someone Jan 19 '24 at 22:14
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    Even if 8A applied, it's hard to imagine how this could be considered "cruel and unusual". Being put in jail isn't cruel and unusual, how could being sent home from school be? The worst might be that it's disproportionate for the circumstance, but I'll bet students have been suspended for less. – Barmar Jan 20 '24 at 16:30
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    @Barmar I don't think that sending a student home would be cruel and unusual. Sending them home in a way that effectively denies that they are human might be. Most furriest do not believe they are animals, so denying their humanity is just as offensive as it would be with anyone else. Even therians almost always believe they they are human in addition to their animal identities, if I understand correctly. – Someone Jan 20 '24 at 17:33
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    @Someone The manner that someone is detained is not considered punishment. If the police use excessive force or yell racial epithets when arresting you, it may be a violation of laws regarding police procedures, but not the 8th Amendment. This seems more analogous to that. – Barmar Jan 20 '24 at 17:37
  • @user6726 "Punishments are only imposed in criminal cases." Traffic violations are not criminal offenses. Are traffic fines not punishments? – Acccumulation Jan 21 '24 at 19:10
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    A court might rule that the involvement of animal control appears on its face to be intended to subject the person thus treated to public mockery above and beyond the ordinary stigma that attends arrest. – EvilSnack Jan 21 '24 at 21:05
  • @Acccumulation I think there's a reason why fines are called out separately in the 8th amendment: they can be imposed criminally, but also non-criminally, and the Excessive Fines Clause covers both cases. Whereas a "punishment" is meant to refer to something that deprives someone of liberty to such an extent that it would always require criminal due process. – Brian Jan 21 '24 at 23:15
  • @Acccumulation While I upvoted this answer because it is most likely correct and immediately answers the question beyond doubt, I wonder now whether that is correct. Imagine a local legislature passing a law that punished, say, building code violations with torture waterboarding -- that's not violating the 8th? – Peter - Reinstate Monica Jan 22 '24 at 14:29