New Jersey Legislators Get a Chance to Fix the First Amendment Problems With Their Anti-Bullying Law

February 3, 2012

Last week New Jersey’s Council on Local Mandates ruled that the state’s Anti-Bullying Bill of Rights, enacted last summer in response to the 2010 suicide of Rutgers University freshman Tyler Clementi, illegally requires new expenditures by local governments without providing funding for them. The council, which was created by a voter-approved constitutional amendment in 1995 to address the problem of unfunded mandates, focused on provisions requiring schools to establish bullying prevention programs, hire anti-bullying specialists and coordinators, create school safety teams, and provide counseling and other services "once an incident of harassment, intimidation or bullying is identified." But now that the law will have to be revised, says the Foundation for Individual Rights in Education (FIRE), the legislature should fix its First Amendment defects as well. "This ‘anti-bullying’ law, as it is currently written, makes opening one’s mouth on a college campus in the state of New Jersey a serious risk," says FIRE President Greg Lukianoff . "FIRE knows all too well that even well-intentioned rules that provide vague proscriptions on speech that challenges or offends are a true disaster for free speech, candor, and robust intellectual inquiry."

The law, which requires colleges to ban "harassment, intimidation and bullying," defines harassment to include "a single incident" that "substantially disrupts or interferes with the orderly operation of the institution or the rights of other students" and "has the effect of insulting or demeaning any student or group of students" or "will have the effect of physically or emotionally harming a student." That definition of student-on-student harassment, FIRE notes, is substantially broader than the one the Supreme Court has said is consistent with the First Amendment in the context of Title IX lawsuits: conduct "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities." New Jersey’s law also seems inconsistent with two rulings by the U.S. Court of Appeals for the 3rd Circuit (where New Jersey is located). In 2008 the 3rd Circuit struck down Temple University’s regulations aimed at "generalized sexist remarks and behavior," saying the policy "provides no shelter for core protected speech." In 2010 the appeals court rejectedthe University of the Virgin Islands’ ban on conduct that causes "emotional distress," noting that "every time a student speaks, she risks causing another student emotional distress." FIRE argues that "New Jersey has in effect sanctioned the ‘heckler’s veto,’" since anyone who claims to be insulted, demeaned, or emotionally harmed by another student’s speech can make a fuss about it, thereby generating the disruption that triggers punishment.

Last year in ReasonMichael Tracey and Harvey Silverglate noted the hazards posed by legislation introduced in response to Tyler Clementi’s death.