Reposted from Open
Market
We live in a culture where harsh but truthful
criticism, or exposure
of wrongdoing, is viewed by some as “bullying,” especially when it affects
someone’s inflated “self-esteem.”
Some examples:
- DePaul University has punished
a student for publicizing the names of fellow students who admitted vandalizing
his organization’s pro-life display,” classifying his speech as “bullying.” The
display had been approved by the university, and the 13 students who wrecked it
confessed. - When historian Michael Bellesiles‘s academic fraud was exposed
by fellow historians, resulting in his forced resignation, a leading
“anti-bullying” expert, who shared Bellesiles’ progressive political views, got
him a new job at her university, claiming
that he “was the victim of a “mobbing” or group “bullying”
campaign by his fellow historians, who were distinguished people from across
the political spectrum. - The Minister of Education in Ontario,
the most populous Canadian province, has sought to
define pro-life advocacy in religious schools as gender-based bullying.
Self-styled crusaders against “workplace bullying” want to impose broad
definitions of bullying at the expense of free speech and use existing overly
broad school bullying rules as models for laws against workplace bullying that
would hold employers and co-workers liable for compensatory and punitive
damages for speech and expressive conduct deemed to be bullying — something
that disturbs groups such as the
Chamber of Commerce.
Activists claim bullying is an “epidemic”
and a “pandemic.” But in reality, bullying and violence have steadily gone
down in the
nation’s schools. In the name of preventing
“bullying,” Minnesota’s Democratic-controlled state legislature is poised
to pass an unconstitutionally vague, overbroad, and viewpoint-discriminatory
ban on speech in public schools and in private schools that receive state
funds. It would ban certain speech that denies students a “supportive
environment” as bullying. (As someone who practiced education law for
years, I can assure you “supportive environment” is not a term of art that is
made any clearer or fleshed out by case law. Rather, it is just as vague
and subjective as it sounds. It is much vaguer than the already rather
ambiguous concept of “hostile work environment” that exists in workplace
harassment cases, which applies only to specified categories of harassment such
as sexual harassment, and — in theory — requires a showing that the harassment be
“severe or pervasive” rather than “isolated.” By contrast, the Minnesota
bill applies even to the “use of one
or a series of words”). UCLA Law Professor Eugene Volokh notes the
Minnesota anti-bullying legislation violates even the fairly limited free
speech rights possessed by K-12 public school students and that other language
in the bill — not just the “supportive environment” language — is hopelessly
vague.
First,
what does interfering with “the ability of an individual … to participate in a
… supportive learning environment” mean, exactly? Say students are talking over
lunch about how a classmate committed a crime, cheated, said racist things,
treated his girlfriend cruelly or whatever else that causes people to feel
hostile towards the classmate. That interferes with his ability “to participate
in a … supportive learning environment.” Presumably that’s now forbidden,
right?
Second,
what on earth does “creat[ing] or exacerbat[ing] a real or perceived imbalance
of power between students” mean? What kind of power? Social power? Financial
power? Power within student-run institutions, such as clubs or businesses that
students set up?
Third,
what does “violates the reasonable expectation of privacy of one or more
individuals” mean? The disclosure of private facts tort doesn’t really tell us,
because it is by design limited to speech said to a large group. Would a girl
telling a friend that her ex-boyfriend has an STD violate the ex-boyfriend’s
reasonable expectation of privacy? (What if the boyfriend is hitting on the
friend?) Would revealing a secret qualify? Revealing an acquaintance’s
religious or political beliefs, if the acquaintance views them as a private
matter?
Fourth,
“relates to the actual or perceived race, ethnicity, color, creed, religion,
national origin, immigration status, sex, age, marital status, familial status,
socioeconomic status, physical appearance, sexual orientation, gender identity
and expression, academic status, disability, or status with regard to public
assistance, [or] age … of a person or of a person with whom that person
associates” would require restrictions on a vast range of speech.
Condemning
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.” That’s true whether one says this about a student, about the
students’ family members (“person[s] with whom that person associates”), or
presumably about the group as a whole: After all, even a general condemnation
of illegal aliens might interfere with the ability of an illegal alien student
who “observes the conduct” to “participate in a … supportive learning
environment.” (It’s not very supportive when people think that people like you
should be deported, no matter how strong the case for deportation might be.)
Now
public schools have broader authority to restrict student speech than does the
government acting as sovereign. But even public schools’ authority is limited
(see here
for more details); and a public school policy that’s this broad would, I think,
be unconstitutionally overbroad and thus invalid on its face, see, e.g., Saxe v. State College Area School
Dist. (3d Cir. 2001) (Alito, J.). The government’s use of funds
for private schools — even funds that amount to a small fraction of the
school’s budget — as leverage to suppress a wide range of speech at those
schools is even more constitutionally problematic, see FCC v. League of Women Voters
(1984). And beyond that, the proposal’s overbreadth is bad policy as well
as being unconstitutional.
Vague provisions in the amended bill
purporting to exempt First Amendment-protected speech do not adequately fix
these problems and will not prevent censorship in practice. See Nitzberg
v. Parks (1975) and Gentile v. State
Bar (1991).
Earlier, a school superintendent labeled
a column in a school newspaper that criticized
homosexuality as “bullying,” even though the column was part of a debate
about adoption by same-sex couples that the school itself had invited (K-12
school newspapers have no obligation to feature such debates in the first
place, but if they do, students should not be punished for taking part in them;
doing so violates principles of fair notice and viewpoint-neutrality).
A federal appeals court ruled in Saxe v. State College Area
School District (2001) that there is no “harassment” exception to
the First Amendment for religious and political speech that offends members of
minority groups. Speech cannot be banned simply by labeling it as “bullying” or
violence, either: For example, in Bauer v. Sampson, another
federal appeals court ruled a campus newspaper’s depiction of a college
official’s imaginary death was protected by the First Amendment, even though
the college declared it a violation of its policy against “workplace violence.”
The anti-bullying website NoBully.com, and
schools such as Alvarado
Elementary, define even “eye
rolling” and other mild expressions of displeasure or hostility as
bullying, even though doing so raises
First Amendment problems. Banning all eye-rolling as “bullying” violates
the First Amendment under the Saxe
decision, which invalidated a harassment code that banned isolated instances of
hostile speech, holding that even a hostile “purpose” is not always reason
enough to ban speech that is neither lewd nor disruptive. Equating
“teasing” with bullying, and calling for it to end (as Education Secretary Arne
Duncan once
did in a speech) is a bad idea, according to psychologist Dacher
Keltner, who noted in The
New York Times that teasing is educational for children and teaches them
“the wisdom of laughing at ourselves, and not taking the self too seriously.”
The anti-bullying panic has enriched
high-paid consultants. After New Jersey passed a broad anti-bullying law,
hundreds of schools “snapped
up a $1,295 package put together by a consulting firm that includes a 100-page
manual.” Reason‘s
Jacob Sullum wrote
earlier about how New Jersey’s law infringes on free speech and imposed illegal
unfunded mandates. When New Jersey passed its incredibly complicated and
burdensome anti-bullying law, which contains 18
pages of “required components,” that gave a huge boost to a burgeoning
“anti-bullying” industry that seeks to define bullying as broadly as possible
(to include behavior like a kid always associating with the same group of
friends) in order to create demand for its services.
Broad anti-bullying rules can backfire and be
harmful
to child development. As a school administrator noted
after passage of New Jersey’s bureaucratically rigid anti-bullying law, “The anti-bullying
law also may not be appropriate for our youngest students, such as
kindergartners who are just learning how to socialize with their peers.
Previously, name-calling or shoving on the playground could be handled on the
spot as a teachable moment, with the teacher reinforcing the appropriate
behavior. That’s no longer the case. Now it has to be documented, reviewed and
resolved by everyone from the teacher to the anti-bullying specialist,
principal, superintendent and local board of education.”
(Photo: the trashed pro-life display at DePaul. Credit: LifeSiteNews.)
Actually, I regret that the policy regarding “real or perceived power” wasn’t in force when I went to high school. It’s bullying if someone feels there’s a power imbalance?
If only. I could have demanded to sit at the cool kids’ table rather than off in the corner with the other members of the Science Fiction Club.