Last week, The New York Times published a front page story on New Jersey’s new anti-bullying law, which took effect on September 1. In the article, reporter Winnie Hu documents complaints about the law’s requirements, which some school district officials throughout the state have found to be expensive, confusing, and burdensome.
The law, known as the Anti-Bullying Bill of Rights, is considered the toughest legislation against bullying in the nation. Propelled by public outcry over the suicide of a Rutgers University freshman, Tyler Clementi, nearly a year ago, it demands that all public schools adopt comprehensive antibullying policies (there are 18 pages of "required components"), increase staff training and adhere to tight deadlines for reporting episodes.
Each school must designate an antibullying specialist to investigate complaints; each district must, in turn, have an antibullying coordinator; and the State Education Department will evaluate every effort, posting grades on its Web site. Superintendents said that educators who failed to comply could lose their licenses.
"I think this has gone well overboard," Richard G. Bozza, executive director of the New Jersey Association of School Administrators, said. "Now we have to police the community 24 hours a day. Where are the people and the resources to do this?"
In most cases, schools are tapping guidance counselors and social workers as the new antibullying specialists, raising questions of whether they have the time or experience to look into every complaint of harassment or intimidation and write the detailed reports required. Some administrators are also worried that making schools legally responsible for bullying on a wider scale will lead to more complaints and open the door to lawsuits from students and parents dissatisfied with the outcome.
The Times’ coverage of the New Jersey law generated significant discussion online, both in the 230 comments the article generated and elsewhere on the Web. Some, like Margaret Hartmann at Jezebel, argued that states like New Jersey "should be commended for trying to create a better way for educators to identify which students are in really in trouble, and step in before something tragic happens." Others, like Times commenter Mary in Atlanta, Georgia, thought the law would prove problematic: "This law is overkill to the max, will be very costly to implement, and will likely do little to get rid of bullying. I also believe it will result in over reaction and law suits."
What both the article itself and virtually all of the ensuing discussion failed to recognize, however, is the fact that New Jersey’s "Anti-Bullying Bill of Rights" applies not only to students attending public grade schools and high schools, but also to every student attending a public college in the state.
For higher education civil liberties advocates like those of us at FIRE, this is the law’s most worrying facet by a long shot. The law draws absolutely no distinction between the comparatively limited rights afforded K-12 students and the full panoply of rights afforded college students—the vast majority of whom have attained their legal majority and can vote, drive, fight and die for their country, and so on. This conflation of grade school kids with college adults is deeply problematic, given the law’s impact on constitutionally protected speech.
To fully understand its impact on student speech, let’s look at the text of the law itself (PDF). The legislation requires every college to prohibit "harassment, intimidation and bullying," which it defines as:
[A] single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic, that takes place on the property of the institution of higher education or at any function sponsored by the institution of higher education, that substantially disrupts or interferes with the orderly operation of the institution or the rights of other students and that:
(a) a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student’s property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;
(b) has the effect of insulting or demeaning any student or group of students; or
(c) creates a hostile educational environment for the student
(d) by interfering with a student’s education or by severely or pervasively causing physical or emotional harm to the student.
Simply put, the law is both impermissibly vague and startlingly broad. By outlawing all student speech that "is reasonably perceived as being motivated either by any actual or perceived characteristic" and that "a reasonable person should know" will "have the effect of … emotionally harming a student" or "placing a student in reasonable fear of … emotional harm," New Jersey is mandating that adult students appraise the sensibilities and frailties of their fellow students before speaking. This is a bizarre requirement, and one that is impossible to square with the Supreme Court’s clear holdings with regard to offensive speech.
For example, in considering Hustler v. Falwell (1988), a case involving Hustler magazine’s infamous parody of Reverend Jerry Falwell in which Falwell was depicted as having sex with his own mother in an outhouse, the Supreme Court noted that allowing Falwell to collect damages as a result of the "outrageousness" of the speech would contradict the Court’s "longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience." In ruling that the First Amendment could not permit such a result, the Court cited with approval its holding a decade earlier in FCC v. Pacifica Foundation (1978): "The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas."
Back to New Jersey’s law: How is a "reasonable" student supposed to know whether his or her speech will place another student in "reasonable fear" of "emotional harm"—and how precisely is the state defining "emotional harm," anyway? The answers to these questions are highly subjective, which means that New Jersey has effectively left its adult college students to guess at what speech is and is not prohibited on campus. That kind of uncertainty leads to a chilling effect on speech, as rational students decide to self-censor rather than risk punishment, and that’s a violation of the First Amendment.
Unfortunately, there are still more problems with the law.
For one, New Jersey’s legislature decided to ignore the fact that "harassment" and "intimidation" both have precise legal definitions, crafted by the Supreme Court with specific attention to balancing the right to freedom of expression with the government’s interest in prohibiting real harassment and intimidation. In Davis v. Monroe County Board of Education (1999), the Supreme Court defined peer-on-peer harassment in the educational context as conduct that is "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." The Davis standard effectively covers the speech that New Jersey is presumably aiming at in the Anti-Bullying Bill of Rights, so the fact that they didn’t just adopt Davis is frustrating and confusing. With regard to intimidation, in Virginia v. Black (2003), the Court defined intimidation as a "type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." Again, that’s an exacting legal standard, handed down by the nation’s highest judicial body, and one could have expected New Jersey to recognize and incorporate it.
The second problem is one I touched on in a post last fall, prior to the law’s passage: By prohibiting speech that "has the effect of insulting or demeaning any student or group of students" in such a way as to "substantially disrupt or interfere with the orderly operation of the institution," New Jersey has sanctioned the "heckler’s veto." Imagine this scenario: The College Democrats harshly criticize the College Republicans’ position on an issue-that is, the College Democrats engage in speech motivated by the College Republicans’ "distinguishing characteristic" of being Republican. In response, the Republicans substantially disrupt the college’s operation in some way—perhaps by holding a sit-in, or pulling a fire alarm, or some other disruptive activity. Under New Jersey’s new law, the Democrats may now be subject to punishment: indeed, they may now be found guilty of "harassment, intimidation, or bullying," because their speech effectively resulted in a substantial disruption of institutional activity. In other words, New Jersey has incentivized overreaction to any perceived insult, since the "victim’s" disruption of the orderly operation of the school automatically shifts the blame to the speaker, not to the student or students actually disrupting the school.
So yes, the New Jersey law is problematic from the point of view of those of us engaged in defending student speech. Any threat to First Amendment rights on campus is worth serious attention, and New Jersey’s Anti-Bullying Bill of Rights contains more than one. Considering the discussion prompted by Ms. Hu’s article, perhaps The New York Times would be interested in a follow-up article focusing on the law’s impact on college students.
Finally, it’s important to address the law’s impetus: the tragic death of Rutgers University student Tyler Clementi last fall. Writing for The Atlantic about his concerns with New Jersey’s legislation, Ta-Nehisi Coates observes:
Filming a gay dude making out and posting it online is pure thuggery, and should be punished to the extent of the law. It’s instances like the Clementi case which give pause to my uneasiness about hate crimes. But it also was a heinous act committed by a college-age adult, not a school-child. The specter of law enforcement involving itself in bullying at school, based on anonymous tips, really scares me. I say that as someone who spent a good portion of my own middle school years enduring random beatdowns.
Coates is absolutely right to condemn the alleged act in the strongest terms, while also recognizing that this kind of conduct is already illegal and was allegedly committed by adult college students. As I wrote in a post discussing the New Jersey legislative response last fall:
The students who allegedly taped Clementi face criminal charges. Videotaping and publishing someone’s private sexual encounters without permission is unquestionably awful. Yet, it is critical to remember that this extreme conduct is already against the law.
In the aftermath of tragedies like Clementi’s, it is understandable that people will be emotional and angry. Yet, we also must ask whether the proposed legislative fix would have prevented this heartache, or if it just makes things worse. We can’t let a tragedy serve as justification to roll back the First Amendment, even with the best of intentions. As FIRE supporters know well, harassment policies are already abused to silence free speech. Simply adding more legislative redundancies might make us feel as if we’ve done something, but really we’re just compounding the already shocking problem of censorship on campus.