by Hans Bader
In this touchy-feely age, harsh but accurate criticism, or exposure of wrongdoing, is viewed by some as “bullying,” especially when it affects someone’s inflated “self-esteem.” For example, “DePaul University has punished a student for publicizing the names of fellow students who admitted to vandalizing his organization’s pro-life display,” classifying his speech as “bullying.”
When historian Michael Bellesiles’ academic fraud was exposed by his fellow historians, forcing him to resign, a leading “anti-bullying” expert, who shared Bellesiles’ progressive political views, got him a new job at her university. She claimed that Bellesiles “was the victim of a ‘mobbing’” or group “bullying” campaign by his fellow historians, even though they were distinguished scholars with diverse views, who were doing the right thing by exposing his fraud.
The Education Minister of Ontario, the most populous Canadian province, has sought todefine pro-life advocacy in religious schools as gender-based bullying. New Jersey has adopted a broad, vague anti-bullying law that the Foundation for Individual Rights in Education says violates the First Amendment rights of college students.
Meanwhile, crusaders against “workplace bullying” want to impose broad definitions of bullying at the expense of free speech and use existing overly-broad school anti-bullying rules as models for laws against workplace bullying that would hold employers and co-workers liable for compensatory and punitive damages for speech and expressive conduct deemed to be bullying — something that disturbs groups such as the Chamber of Commerce.
In the name of preventing “bullying,” Minnesota’s Democrat-controlled state legislature is poised to pass an unconstitutionally vague, overbroad, and viewpoint-discriminatory ban on speech in public schools and in private schools that receive state funds. It would ban certain speech that denies students a “supportive environment” as bullying.
(As someone who practiced education law for years, I can assure you “supportive environment” is not a term of art that is made any clearer or fleshed out by case law. Rather, it is just as vague and subjective as it sounds. The Minnesota anti-bullying bill is much vaguer than the already rather ambiguous concept of “hostile work environment” that exists in workplace harassment cases, which applies only to specified categories of harassment such as sexual harassment, and — in theory — requires a showing that the harassment be “severe or pervasive” rather than just “isolated.” By contrast, the Minnesota anti-bullying bill applies even to the “use of one or a series of words”).
Law professor Eugene Volokh, a leading legal scholar who has authored First Amendmenttextbooks, notes the Minnesota anti-bullying legislation violates even the fairly limited free speech rights possessed by K-12 public school students and that other language in the bill — not just the “supportive environment” language — is hopelessly vague:
First, what does interfering with “the ability of an individual … to participate in a … supportive learning environment” mean, exactly? Say students are talking over lunch about how a classmate committed a crime, cheated, said racist things, treated his girlfriend cruelly or whatever else that causes people to feel hostile towards the classmate. That interferes with his ability “to participate in a … supportive learning environment.” Presumably that’s now forbidden, right?
Second, what on earth does “creat[ing] or exacerbat[ing] a real or perceived imbalance of power between students” mean? What kind of power? Social power? Financial power? Power within student-run institutions, such as clubs or businesses that students set up?
Third, what does “violates the reasonable expectation of privacy of one or more individuals” mean? The disclosure of private facts tort doesn’t really tell us, because it is by design limited to speech said to a large group. Would a girl telling a friend that her ex-boyfriend has an STD violate the ex-boyfriend’s reasonable expectation of privacy? (What if the boyfriend is hitting on the friend?) Would revealing a secret qualify? Revealing an acquaintance’s religious or political beliefs, if the acquaintance views them as a private matter?
Fourth, “relates to the actual or perceived race, ethnicity, color, creed, religion, national origin, immigration status, sex, age, marital status, familial status, socioeconomic status, physical appearance, sexual orientation, gender identity and expression, academic status, disability, or status with regard to public assistance, [or] age … of a person or of a person with whom that person associates” would require restrictions on a vast range of speech.
Condemning illegal aliens, Scientologists, people who marry too young, people who are flunking out of school, or people who are on welfare would have to be forbidden as “bullying.” That’s true whether one says this about a student, about the students’ family members (“person[s] with whom that person associates”), or presumably about the group as a whole: After all, even a general condemnation of illegal aliens might interfere with the ability of an illegal alien student who “observes the conduct” to “participate in a … supportive learning environment.” (It’s not very supportive when people think that people like you should be deported, no matter how strong the case for deportation might be.)
Now public schools have broader authority to restrict student speech than does the government acting as sovereign. But even public schools’ authority is limited (see here for more details); and a public school policy that’s this broad would, I think, be unconstitutionally overbroad and thus invalid on its face, see, e.g.,Saxe v. State College Area School Dist. (3d Cir. 2001) (Alito, J.). The government’s use of funds for private schools — even funds that amount to a small fraction of the school’s budget — as leverage to suppress a wide range of speech at those schools is even more constitutionally problematic, see FCC v. League of Women Voters (1984). And beyond that, the proposal’s overbreadth is bad policy as well as being unconstitutional.
Vague provisions in the amended bill purporting to exempt First Amendment-protected speech do not adequately fix these problems and will not prevent censorship in practice. See Nitzberg v. Parks (1975) and Gentile v. State Bar (1991).
Earlier, a school superintendent labeled a column in a school paper that criticized homosexuality as “bullying,” even though the column was part of a debate about adoption by same-sex couples that the school itself had invited (school newspapers have no obligation to feature such debates in the first place, but if they do, students should not be punished for taking part in them; doing so violates the First Amendment and principles of fair notice that apply with heightened force to restrictions on speech.).
The Third Circuit Court of Appeals ruled in Saxe v. State College Area School District (2001), that there is no “harassment” exception to the First Amendment for religious and political speech that offends members of minority groups. Speech cannot be banned simply by labeling it as “bullying” or violence, either: For example, in Bauer v. Sampson, another federal appeals court ruled a campus newspaper’s depiction of a college official’s imaginary death was protected by the First Amendment, even though the college declared it a violation of its policy against “workplace violence.”
The anti-bullying website NoBully.com, and schools such as Alvarado Elementary, define even “eye rolling” and other mild expressions of displeasure or hostility as bullying, even though doing so raises First Amendment problems. Banning all eye-rolling as “bullying” violates the First Amendment under the Saxe decision, which invalidated a harassment code that banned isolated instances of hostile speech, holding that even a hostile “purpose” is not always reason enough to ban speech that is neither lewd nor disruptive.
Equating “teasing” with bullying, and calling for it to end (as Education Secretary Arne Duncanonce did in a speech here in Washington, D.C.) is a bad idea, according to psychologist Dacher Keltner, who noted in The New York Times that teasing is educational for children and teaches them “the wisdom of laughing at ourselves, and not taking the self too seriously.”
The anti-bullying panic has enriched high-paid consultants. After New Jersey passed a broad anti-bullying law, hundreds of schools “snapped up a $1,295 package put together by a consulting firm that includes a 100-page manual.” Reason’s Jacob Sullum wrote earlier about how New Jersey’s law infringes on free speech and imposed illegal unfunded mandates.
When New Jersey passed its incredibly complex and burdensome anti-bullying law, which contains 18 pages of “required components,” that gave a huge boost to a burgeoning “anti-bullying” industry that seeks to define bullying as broadly as possible (to include behavior like a kid always associating with the same group of friends) in order to create demand for its services.
Broad anti-bullying rules can backfire and harm child development. As a school administratornoted after passage of New Jersey’s bureaucratically rigid anti-bullying law, “The anti-bullying law also may not be appropriate for our youngest students, such as kindergartners who are just learning how to socialize with their peers. Previously, name-calling or shoving on the playground could be handled on the spot as a teachable moment, with the teacher reinforcing the appropriate behavior. That’s no longer the case. Now it has to be documented, reviewed and resolved by everyone from the teacher to the anti-bullying specialist, principal, superintendent and local board of education.”