Bullying and the Law

November 3, 2011

This year, New Jersey has a much-discussed new law that is considered the nation’s toughest anti-bullying statute. Adopted following the suicide of Rutgers University student Tyler Clementi, the law contains only one mention of higher education: it simply requires public institutions to “include a policy on harassment, intimidation or bullying” in student codes of conduct. (The Tyler Clementi Higher Education Anti-Harassment Act, the re-introduced federal legislation that has yet to reach a vote, would essentially extend the New Jersey law to all other states.)

But while the vast majority of the New Jersey Anti-Bullying Bill of Rights deals instead with elementary and secondary education, administrators, researchers and free speech advocates inside and outside state colleges say the law is significant – and whether that’s a good thing depends whom you’re asking. While it’d be difficult to find someone who opposes the sentiment behind the Anti-Bullying Bill of Rights, as the law is known, some people, in elementary through higher education and elsewhere, are concerned that the legislation is far-reaching, misguided or impractical.

The legislation’s passage follows a widely publicized uptick in suicides by young people, many of them gay, who experienced bullying, perhaps the most well-known of all being Clementi’s jump off the George Washington Bridge after his roommate allegedly secretly streamed (and shared) video of the 18-year-old kissing a man in their dorm room. (The roommate, 19-year-old Dharun Ravi, turned down a plea deal last week that would have limited to five years his potential prison sentence in an invasion of privacy trial, slated to begin Feb. 21. Ravi faces up to 10 years.)

The law defines bullying and harassment for all schools and public colleges — and that lengthy and far-reaching definition is causing discomfort and uncertainty for some university administrators and free speech advocates.

“The public impetus for addressing bullying is certainly easy to understand, and presumably well-intentioned. That said, imposing broad and vague bans on student speech benefits nobody, and serves only to chill the precise kind of debate and discussion that life in a modern liberal democracy such as ours requires, particularly at our nation’s campuses and universities,” said William Creeley, director of legal and public advocacy at the Foundation for Individual Rights in Education. “The point is, there has to be a difference between mere offense and actionable harassment. And too often, I think, these anti-bullying efforts kind of blur that line.”

The law’s definition of “harassment, intimidation or bullying” is extensive, to say the least:

It’s “any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by an actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic, that takes place on school [or public college] property, at any school-sponsored function."

There’s more. A reasonable person should know, the law says, that the act in question “will have the effect of physically or emotionally harming a student or damaging the student’s property,” or inspire “reasonable fear” of such harm. Or, that the act “has the effect of insulting or demeaning any student or group of students in such a way as to cause substantial disruption in or substantial interference with the orderly operation of the school. Or that it creates a “hostile educational environment” for the student, or that it interferes with the student’s education by “severely or pervasively causing physical or emotional harm to the student.”

Many colleges already addressed bullying in some fashion through their harassment policies, but had to update their policies to align with the new law. For instance, at Ramapo College, administrators consulted with the attorney general’s office and determined their policy wasn’t detailed enough. The updated version, which has been sent to all students, faculty and staff, includes much of the law’s published language.

“Simply by stating a policy difference and providing more detail, you’re validating, if you will, that bullying occurs,” said Miki Cammarata, associate vice president for student development at Ramapo. “Absolutely, it increases the level of concern and attention, which is necessary, which in my opinion was the purpose of the law.”

Gay and lesbian students are nearly twice as likely as heterosexual students to experience harassment, and seven times more likely to say the harassment was based on their sexual identity, according to the report 2010 State of Higher Education for Lesbian, Gay, Bisexual and Transgender People, published by Campus Pride and the Q Research Institute for Higher Education.

Despite the growing number of states (22) and colleges that have added ‘gender identity/expression’ to their nondiscrimination laws and policies, the report says, 23 percent of gay and lesbian respondents and 33 percent of queer ones reported experiencing harassment. Respondents who were not white were also more likely to report their race being the basis for their harassment.

Warren J. Blumenfeld, one of the report’s authors and an associate professor of multicultural and international curriculum studies at Iowa State University, appreciates that New Jersey is trying to address this problem. But he worries that the approach won’t be successful because the data show discipline and threats don’t work.

Rather than threaten punishment by telling students what not to do, it’s more effective to show them what they should do, said Blumenfeld, who has also conducted research on cyberbullying. Students at Iowa State, for example, responded to a string of racist, sexist and homophobic chalking incidents on campus six years ago by developing six tolerant “Principles of Community” to help guide students as they interact with diverse peers. They emphasize respect, cooperation and freedom from discrimination, among other things. The university president approved the principles in 2007 and they’re now posted around campus and used as a tool for educating — but not punishing — students who harass others and require mediation. Similarly, bystander intervention programs that teach students leadership skills help counter the notion that bullying is common, acceptable or cool.

“With all of these policies and everything, we still live in a homophobic and transgender-oppressive society,” Blumenfeld said. “I think what New Jersey is doing is a positive direction, and I hope other states bring anti-bullying wording to the college and university level. But it’s not enough; it has to go further.”

Blumenfeld also shared some of FIRE’s concerns about the vagueness of the legislation’s definition. For instance, he asked, when a student writes on a course evaluation that the professor is nice but is going to hell anyway because he’s Jewish and doesn’t accept Jesus, is that harassment? What about when two girls on the bus, surrounded by Asian students, comment that “there’s just too many Asian students on this campus"? Does it matter who heard them?

Still, Richard Jones, vice president for student life and dean of students at Rowan University, believes the law can only help in a culture where these sorts of comments, if not exactly commonplace, aren’t a rarity. Before the legislation passed, Rowan didn’t have a policy that explicitly addressed bullying.

“Universities are a microcosm of the world at large, so anything that the world, the nation experiences, we experience on a college campus as well,” Jones said. “Any policy that supports learning should have a positive impact. Any policy that reduces the likelihood of someone preventing someone from getting an education, to have a better life, is a good policy.”

Despite the New Jersey Institute of Technology having had a code that addresses bullying and other forms of harassment in place for at least the 16 years since Associate Dean of Students Leroy Thomas has been there, he’s never had an incident that he would classify as bullying or intimidation.

“Students at this level in their lives – they’re a little above that,” Thomas said. When a situation does unfold, he said, it’s usually just a misunderstanding – a misinterpretation between students from different cultures or backgrounds – which could prove problematic under the new legislation, when so much relies on perception.

“That’s the thing about this,” Blumenfeld said. “It can give guidelines, but it can never be precise enough to know whether somebody actually violates it.”