Montclair State Wrongly Cites Anti-Bullying Law to Justify Student's Suspension

The case of Montclair State University student Joseph Aziz—who has been suspended from the university as the result of unflattering social media comments he made regarding a fellow student—began making the news yesterday, with several articles appearing in the New Jersey/New York region and even a spot overnight on Fox News Channel's Red Eye.

So far, however, Montclair State has remained largely silent on the matter, issuing only the following brief statement:

This matter concerns a student disciplinary matter, and the University does not comment upon individual student discipline because of the responsibilities imposed by the Family Educational Rights and Privacy Act.  The University acted in accordance with its Student Code of Conduct which complies with the New Jersey Anti-Bullying Bill of Rights Act, and other applicable federal and state regulations.

While this statement confirms many of FIRE's stated concerns about the impact of anti-bullying legislation on protected speech (more on that later), it is first important to note that New Jersey's Anti-Bullying Bill of Rights Act (ABBR) is not even applicable here, for two reasons.

Here's the relevant text from the law [PDF]:

C.18A:3B-68  Adoption of policy by public institutions of higher education.

28. a. A public institution of higher education shall adopt a policy to be included in its student code of conduct prohibiting harassment, intimidation, or bullying.  The policy shall contain, at a minimum:

(1) A statement prohibiting harassment, intimidation, or bullying;

(2) Disciplinary actions which may result if a student commits an act of harassment, intimidation, or bullying; and

(3) A definition of harassment, intimidation, or bullying that at a minimum includes any gesture, any written, verbal or physical act, or any electronic communication, whether it be 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 by interfering with a student's education or by severely or pervasively causing physical or emotional harm to the student.

b. The institution shall distribute the policy by email to each student within seven days of the start of each semester and shall post the policy on its website. [Emphasis added.]

First, at a public college or university, the ABBR applies only to conduct "that takes place on the property of the institution of higher education or at any function sponsored by the institution of higher education"-a definition which is not applicable to the YouTube and private Facebook comments that formed the basis of the university's case against Aziz.

Second, the ABBR applies only to conduct "that substantially disrupts or interferes with the orderly operation of the institution or the rights of other students." But remember that the university found Aziz not responsible for harassment and disruptive conduct (actions that, if substantiated, could be said to interfere with the rights of other students). His current suspension is based only on the fact that he violated the university's unconstitutional gag order by discussing his case in a private Facebook group-an action that doesn't substantially interfere either with "the orderly operation of the institution" or "the rights of other students."

Perhaps more importantly, though, Montclair State's sneaky attempt to characterize Aziz's expression as prohibitable "bullying," when it is so obviously constitutionally protected, substantiates FIRE's longstanding concern that, however well-intentioned, the ABBR will be used by universities as a shield to justify the censorship of constitutionally protected expression. Because even if Aziz's statements had been made on campus, they would still be entitled to constitutional protection. That doesn't mean they're pleasant or that they will upset no one—but it does mean that the college can't lawfully prohibit them.

Actual peer-on-peer harassment in the education context, defined by the U.S. Supreme Court 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," is not constitutionally protected. But a few isolated jokes—some made in the context of a political argument and others in a private forum to which the victim did not have access—do not rise to anywhere near the necessary level of severity and pervasiveness.

Montclair State knows this, since it found him not responsible for harassment. It cannot now continue to justify his punishment by calling his conduct "bullying."

We hope the university will soon recognize that its continued suspension of Aziz is in direct conflict with its obligation, as a public university, to uphold the First Amendment rights of its students. We will continue to bring you updates on this story as it unfolds.