Danielle LaHee is a FIRE Summer Intern.
Recently, there has been an increase in media attention focused on adolescent and teenage suicides due to bullying and cyberbullying. The result has been an influx of bullying policies beginning at elementary school and stretching to the halls of higher education, many of which restrict free speech along with prohibiting actual bullying. To ensure the protection of fundamental First Amendment rights in the educational context, educators and legislators must look to a combination of proper harassment law and prevention methods to combat what is becoming a pervasive issue.
Those who are victims of bullying frequently experience long-term and extensive verbal and sometimes physical abuse. One approach to examining the effects of bullying can be found in psychologist Abraham Maslow’s theory of self-actualization. According to Maslow’s hierarchy of needs, after basic psychological and safety needs are satisfied, the "belongingness need" becomes paramount. He points to our animal tendencies to herd, to flock, to join, to belong. Bullying studies further the connection between bullying and negative effects. A study published by the British Medical Journal showed that "bullied twins were significantly more likely to self harm than were their non-bullied co-twins." Another study found that students who are less accepted and/or victimized by peers are at risk for poorer academic performance. The studies mostly examine those under the age of eighteen, but often address the longer-term effects of bullying as well. It may be reasonable to conclude, therefore, that bullying also negatively affects those over the age eighteen.
Partially in an effort to protect students from these negative effects, the Department of Education’s Office for Civil Rights (OCR) published guidance in 1997, 2001, and 2003 stressing the importance of preventing true harassment while protecting academic freedom and free speech. Intertwined with these sentiments was an understanding of legal precedent as striking a clear balance between free speech and actually harassing or bullying behavior at school. The standard for student-on-student (peer) harassment in both the K-12 and university settings comes from the 1999 Supreme Court case of Davis v. Monroe County Board of Education, which defines peer harassment as only behavior that is so "severe, pervasive, and objectively offensive that it denies its victims the equal access to education." The negative results associated with bullying are clearly addressed by the Davis standard, and the Davis standard continues to be the standard to which schools should hold themselves.
The most recent letter on sexual harassment from the Office for Civil Rights, however, has expanded the meaning of bullying beyond what psychological studies and the law have previously defined. According to OCR, harassment includes "verbal acts and name calling" and "does not have to be directed at a specific target, or involve repeated incidents." This new definition is in clear conflict with the Davis standard, lowering the protection of student free speech rights. Does this standard include a bully’s taunts that are part of a pattern of truly bullying behavior? Yes. But it also opens the door to punishing students for teasing their friends, and other innocuous or protected speech.
One could argue that the restrictions advocated by OCR may be appropriate in the K-12 setting when these schools act in place of parents. However, to limit the speech of college students who are adults denies these students their First Amendment rights in the very place where free pursuit of knowledge is paramount. In the realm of OCR’s letter, politeness is valued above all else. The problem is that important speech is often not polite. Rather than attempt to mandate courtesy, it is essential that universities find solutions that will simultaneously protect students from the harms of true bullying and censorship.
Psychology and development studies connecting adolescent bullying with negative effects nearly always conclude with a solution to the greater problem. In these studies, the solution takes the form of prevention and assistance. The former relates to educating students and teachers early on about the effects of bullying. The latter focuses on providing students who have been victims of bullying-and even bullies themselves-tools such as counseling to help them stay safe. As one study found, it is key to have both teachers and students reporting instances of bullying. Multiple reporters were shown to improve accuracy in evaluating student functioning as a result of bullying. Essentially, better assessment and preparation means more accurately reported bullying instances, and logically following, better results. These are methods that could easily be applied in higher education in an effort to only address behavior that limits a victims equal access to education. It is critical that any reporting system for bullying be confined to instances of true bullying, rather than simply instances of expression that someone doesn’t like.
Those pushing for stricter bullying policies such as the Office for Civil Rights are worried about the effects of bullying on students. They are right to worry; the negative effects of bullying cannot be ignored. Ranging from depression to poor performance in school to suicide, students can be in danger. However, OCR is forgetting one inherent truth: you cannot regulate kindness. There will always be those who pick on others they perceive to be weaker. Attempting to deny this would be fruitless, and attempts to punish speech that is unpleasant but falls short of actual bullying will fail. Bullying policies such as those mandated by the OCR minimize the effects of real bullying has while ignoring legal precedent. Utilizing the Davis standard would protect students from harassment as well as censorship, properly balancing these two important objectives. Disregarding free speech and academic freedom under the banner of student protection is a terrible idea. Being silenced for fear of persecution from school officials-to me, that is the real bullying.