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Law review article on bullying preaches free speech but proposes limiting it

By March 27, 2017

An article in the current issue of the Louisiana Law Review proposes a reform to anti-bullying laws in order to harmonize them with First Amendment principles. While we appreciate the article’s contribution to this important area of discussion, it does so by suggesting a further limiting of student speech rights — one that could be used by school administrators to censor or punish student speech that someone, somewhere, might perceive as “bullying.”

Written by University of South Carolina School of Law Assistant Professor Emily Suski, “A First Amendment Deference Approach to Reforming Anti-Bullying Laws” expertly navigates the complex history of state anti-bullying measures and concludes that most state laws designed to combat bullying set schools up to violate the First Amendment.

A complicating factor in this discussion is that Suski’s proposal is written as if addressed directly to primary and secondary schools but could ultimately impact colleges. Suski notes that bullying is worst in the middle school years, suggesting an implicit focus on K-12 education, but the exceptions to free speech rights created in secondary schools have, in the past, been used by courts to analyze speech questions in higher education.

Under the Supreme Court’s Tinker standard, student speech is protected by the First Amendment unless school officials can demonstrate that the speech creates a substantial risk of a material disruption of the orderly operation of school. As Suski notes, very little student-on-student bullying will rise to that level. For example, while one middle school student calling another “ugly” could, and sometimes does, lead to adverse emotional consequences, it hardly presents an obstacle to the orderly administration of the school day. Nevertheless, schools operating under anti-bullying mandates will sometimes seek to punish this kind of speech.

While courts will sometimes strain to rationalize such disciplinary censorship under the Tinker standard, Suski warns:

These kinds of reaches of logic should not give solace to schools hoping to address bullying without violating the First Amendment. That the courts have at times engaged in these logical leaps to find schools’ suppressions of student speech constitutional should not suggest that the courts have satisfied the Constitution; rather, these results only provide evidence showing that the schools have found a court willing to so conclude on scant evidence or reasoning.

Suski also delves into the social science examining bullying outcomes and observes that the most common reaction to bullying — disciplinary suspensions, expulsions, or alternative schooling, which she collectively describes as “exclusion” methods — actually exacerbates bullying, rather than ameliorating it. Worse still, Suski explains, many state anti-bullying measures either implicitly or explicitly call for exclusionary discipline, further increasing the likelihood that the school’s response to bullying will be ineffective and unconstitutional.

To remedy the situation, Suski proposes changes to school actions and, implicitly, the Tinker standard. FIRE sees no problem with the first proposal, but has serious reservations about the second.

Schools are given great deference in their anti-bullying disciplinary decisions, but those decisions, at present, usually involve exclusionary discipline, which Suski says leads to more bullying. Instead, Suski suggests, schools (and state laws) focus on using other methods of responding to bullying that fit better with the unique mission of schools.

But, unfortunately, that’s where our agreement ends. Suski goes further to suggest that a school using a non-exclusionary response to bullying be given “deference” by the court in its decision to censor speech that could “reasonably be seen as bullying.” A discussion of the Supreme Court’s decision in Morse v. Frederick clarifies that, by deference, Suski means a carve-out of Tinker permitting schools to punish whatever speech they think is bullying, just as Morse authorized schools to punish whatever speech they think advocates illegal drug use, even when that speech is as ambiguous as “BONG HiTS 4 JESUS.”

Most troubling is Suski’s proposal to add yet another exception to Tinker’s already eroded protection of student speech, particularly since those carve-outs threaten speech on college campuses. Suski’s proposal continues a long tradition of lawyers and educators refusing to concede that students are people, too, and that means affording them the ability to say the wrong thing from time to time. If the mission of schools is, in part, to inculcate shared values, then students must be given the leeway to express alternate values, even when those values are alienating or hurtful. Enforced silence is not a pedagogical value.

It seems problematic to use the law to referee interpersonal relationships. Historically, these attempts have not succeeded. Freedom of association presupposes the freedom to not to associate. Some developmental psychologists describe disassociating from someone as a type of bullying called “relational aggression”; but if choosing not to associate with someone is bullying, then Suski’s proposal could, in theory, permit schools to prevent students from choosing not to be friends with other students.

That may sound outlandish to someone who isn’t familiar with how little courts respect student rights, from time to time. But considering the U.S. Court of Appeals for the Fifth Circuit says a cheerleader can be forced to cheer for the students who reportedly gang-raped her, the idea that a court might require that cheerleader to sit next to someone in the name of preventing bullying seems unremarkable, and even likely.

The law is meant to keep us physically secure — not emotionally insulated. While we agree with Suski that schools should view education as its most important anti-bullying tool, we see no reason to further impair the rights of students to achieve that goal.