In a thoughtful New York Times op-ed published yesterday, Emily Bazelon advances two important arguments against the use of broad definitions of bullying.
Bazelon—a Slate senior editor and the author of the new book Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy—first notes that sweeping, conflicting definitions of bullying encompass normal tensions between students and increase administrative burdens on schools:
The word is being overused – expanding, accordionlike, to encompass both appalling violence or harassment and a few mean words. State laws don’t help: a wave of recent anti-bullying legislation includes at least 10 different definitions, sowing confusion among parents and educators.
On the other extreme of the spectrum, overly broad legal definitions of bullying – for example, ones that leave out the factors of repetition or power imbalance – can lead parents to cry bully whenever their child has a conflict with another child.
Sorting through the accusations is a burden for schools, especially when state laws straitjacket their response to a bullying accusation, rather than allowing them to use their judgment and take account of context.
This argument echoes concerns FIRE has raised about anti-bullying legislation and speech codes. As I’ve noted here on The Torch, laws like New Jersey’s Anti-Bullying Bill of Rights (ABBR) are written so broadly as to reach speech protected by the First Amendment. For another example, Eugene Volokh wrote just last week about a Minnesota anti-bullying bill that, if enacted, would define bullying as "use of one or a series of words, images, or actions" that "will have the effect of interfering with the ability of an individual … to participate in a safe and supportive learning environment." The First Amendment problems presented here are myriad. As Eugene observes: "[c]ondemning 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.’" No matter how well-intentioned anti-bullying laws like this may be, leaving students subject to punishment for protected speech is simply unacceptable at a public school.
And some collegiate anti-bullying speech codes are so broad as to sweep in everyday behavior, leaving virtually every student on campus potentially guilty. Take the University of Delaware’s former anti-bullying code, which before revision prohibited "[a]ny deliberately hurtful behavior, usually repeated over time, with the desired outcome of frightening, intimidating, excluding or degrading a person." Under this code, leaving somebody’s ex-boyfriend out of a study group could be actionable. As examples of bullying, the policy included "teasing" and "ridiculing." So a Red Sox fan "degrading" a Yankees fan by "teasing" him might also find herself accused of "bullying." It sounds ridiculous—but then again, we’ve seen "bullying" charges leveled against students making jokes in a graduation speech. Broad bans are ripe for abuse, as FIRE’s case archives make all too clear.
And as Professor Derek Bambauer of the University of Arizona’s James E. Rogers College of Law has noted, the overbreadth of anti-bullying legislation like New Jersey’s ABBR leads to unintended negative consequences. Writing about the ABBR for Concurring Opinions last year, Bambauer observed:
[S]ocial sanctions through criticism or opprobrium are powerful and often beneficial means of shaping behavior. Consider teen anti-smoking campaigns: peer pressure is an effective inducement to quit a harmful habit. Yet targeting someone for being a smoker counts as focusing on an "actual characteristic" under the anti-bullying law. The ABBR threatens to impede or punish individual and collective expression that can generate helpful shifts in behavior, from evincing greater toleration for people of different sexualities to political outreach. The difficulty is that there is no principled means to distinguish between social sanctions that enforce norms we like, and bullying that enforces norms we do not. It would be unlawful for Viki Knox to critique LGBT month in her school, and unlawful for students to criticize her for those beliefs.
Thus, the ABBR has only two stable outcomes: a school free of such expression and activity, or one where penalties against it are at the discretion of school officials, who may have idiosyncratic views regarding favored and disfavored speech. The former creates a highly artificial school environment – one hermetically sealed against the realities and controversies of life outside the schoolyard gates. The latter creates the perils of censorship based on a principal’s own preferences on what speech counts as right or wrong.
Back to Bazelon, who next identifies the undesirable social impact of defining bullying broadly. Bazelon points out that overinclusive, all-encompassing definitions of bullying necessarily result in overdiagnosing, which makes the problem seem worse than it in fact may be, or might serve to overshadow other serious concerns. Worse still, labelling such a wide variety of behavior as "bullying" results in negative consequences for both the alleged bully and his or her victim:
[T]he "bully" label carries a stigma that’s hard for a child to escape. It makes a child seem permanently heartless, rather than capable of feeling empathy, which almost all are.
Crying wolf about bullying isn’t good for the children who play the victim, either. Those who hold onto that identity are less likely to recover from adversity. Bullying victims need sympathy; they also need help learning to be resilient.
Bazelon’s prescription for combating actual bullying involves "shifting the social norm so that bullying moves from being shrugged off to being treated as unacceptable." But as she notes, "we can’t do that if we believe, and tell our children, that it’s everywhere." Legislators and university administrators rushing to do something about bullying would be well-advised to take note of Bazelon’s careful thinking about the message sent to students by labeling protected speech "bullying."
For more on what a legislative response to bullying that passes constitutional muster might look like, check out this 2011 op-ed I wrote for The Chronicle of Higher Education about the problems with the Tyler Clementi Higher Education Anti-Harassment Act, recently reintroduced in both chambers of Congress. Long story short: The vast majority of behavior targeted by legislators as "bullying" is already prohibited by federal anti-discrimination statutes like Title IX and Title VI. To properly protect free speech, any "anti-bullying" bill must mirror the student-on-student harassment standard set forth by the Supreme Court of the United States. As I wrote:
In its 1999 decision in Davis v. Monroe County Board of Education, the Supreme Court defined hostile-environment peer harassment as 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." This exacting definition strikes an appropriate balance between protected speech and unprotected harassment-which is exactly why it has been cited for the past decade by colleges, courts, and the Department of Education’s Office for Civil Rights.
Bazelon suggests a similar standard along these lines; as she writes, bullying is "about one person with more social status lording it over another person, over and over again, to make him miserable." That’s obviously not as precise as Davis, but it’s a rough approximation of the basic idea: In order for speech to lose protection under the First Amendment and become actionable as "bullying," it must be discriminatory, severe, pervasive, and so objectively offensive that the victim can’t obtain an educational benefit.
In other words, not everything is bullying—nor should it be, in order to best serve the interests of students, parents, and administrators.