New Anti-Bullying Initiatives Threaten Protected Speech, Infantilize College Students

A few Saturdays ago, I appeared on FOX News' Fox & Friends to discuss new anti-bullying legislation recently introduced in New Jersey. As luck would have it, my national TV debut was cut short because a live interview with Homeland Security Secretary Janet Napolitano ran long. (No hard feelings, Madam Secretary!) As a result, I didn't get a chance to fully explain why I'm concerned that New Jersey's initiative and others like it, while doubtlessly well-intentioned, would erode the rights of college students by introducing vague new restrictions on speech and equating college students with their K-12 counterparts.

The New Jersey bill has garnered bipartisan support and seems all but certain to become law, but such initiatives might do far more harm than good for student rights at the collegiate level. 

How? Let's review.

First, the entire bill paints with an extremely broad brush, rendering college students and grade school students essentially indistinguishable. But college students are most certainly not fifth graders, whether in terms of the rights they're afforded by law or in simple terms of emotional and physical maturity. The proposed legislation largely focuses on bullying in the K-12 context, urging schools to adopt an in loco parentis stance that is simply inappropriate for colleges. At an institution of higher education, students could range in age from 17 to 67 and beyond, and they must be treated like the adults they are. (The same problem is evident in the Department of Education's recent open letter on bullying, which my colleague Azhar has covered here on The Torch.)

After reciting statistics on bullying in the K-12 environment, the bill's preamble posits that "[h]arassment, intimidation, and bullying is also a problem which occurs on the campuses of institutions of higher education in this State, and this act by requiring the public institutions to include in their student codes of conduct a specific prohibition against bullying will be a significant step in reducing incidents of such activity." But public colleges in New Jersey and all across the country are already required by law to prohibit the kind of harassing behavior that comes to mind when we think of bullying. 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." That is, students engaged in bullying can already be disciplined under the carefully tailored standard the Court announced in Davis.

I call the Davis standard "carefully tailored" because it strikes a delicate but necessary balance between prohibiting harassment and protecting students' First Amendment rights. This is crucial because while public colleges are already required by law to address harassment on campus, they must also uphold the First Amendment. Thankfully, with the Davis standard, these dual obligations don't have to be in tension—truly harassing behavior is grounds for punishment, but speech protected by the First Amendment isn't.

Unfortunately, the New Jersey bill ignores the Davis standard and slaps colleges with a sloppy new definition of "harassment, intimidation, or bullying" to enforce instead. Here it is:

"Harassment, intimidation or bullying" means any gesture, any written, verbal or physical act, or any electronic communication 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 school property, at any school-sponsored function or on a school bus 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 in such a way as to cause disruption in, or interference with, the orderly operation of the school;

c.  creates a hostile environment at school for the student; or

d.  infringes on the rights of the student at school.

So, instead of the precision of the Davis standard, New Jersey colleges get a fuzzy prohibition of 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." Got that? Me neither. As a lawyer, I'm very familiar with the splendid elasticity of the "reasonable person" standard, but it seems to be stretched to the breaking point here. It's hard to say how a "reasonable" student is supposed to know whether his or her speech will place another student in "reasonable fear" of "emotional harm." What is "emotional harm," anyway? The answer is obviously highly subjective, and the term will almost certainly be construed to include mere offense. And the Davis standard's requirement that the allegedly harrassing expression be "pervasive"? Nowhere to be found here, which means that a single statement could be found sufficient for punishment.

I shudder to think of the protected speech that college administrators could find worthy of discipline under the bill's vague definition of "harassment, intimidation, or bullying." By ignoring the fact that both "harassment" and "intimidation" are legal terms of art, complete with exacting definitions carefully fashioned by the Supreme Court, the New Jersey bill rides roughshod over the constitutional concerns the Supreme Court has explicitly addressed.

And the Supreme Court isn't the only binding legal authority New Jersey legislators are dismissing. After all, the United States Court of Appeals for the Third Circuit—the jurisdiction of which includes Delaware, Pennsylvania, and New Jersey—has struck down unconstitutional speech codes at universities twice in the past three years, finding fault with policies that are just as vague as the legislation here. In 2008's DeJohn v. Temple University, the Third Circuit struck down Temple's restriction on "generalized sexist remarks and behavior," holding that the policy "provides no shelter for core protected speech" and concluding that "[d]iscussion by adult students in a college classroom should not be restricted." And, even more on point, in this year's McCauley v. University of the Virgin Islands, the Third Circuit struck down (amongst other regulations) a policy that prohibited conduct causing "emotional distress." The court found the policy "entirely subjective" and noted that under this vague restriction, "[e]very time a student speaks, she risks causing another student emotional distress," resulting in a "heavy weight" that does "substantial" damage to free speech on campus. Under both DeJohn and McCauley, it's difficult to see how the new bill would pass constitutional muster in the university setting.

What's more, the prohibition of speech that "has the effect of insulting or demeaning any student or group of students in such a way as to cause disruption in, or interference with, the orderly operation of the school" essentially legitimizes the "heckler's veto." If, say, the College Democrats were to harshly criticize the College Republicans' position on an issue—that is, if the Dems engaged in speech motivated by the College Republicans' "distinguishing characteristic" of being Republican—and then the Republicans responded by causing disruption with the school's operation, the Dems would ostensibly be guilty of "harassment, intimidation, or bullying." This clause incentivizes 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 the student or students actually disrupting the school. Making matters still worse, the bill doesn't even require the disruption to be substantial or material—it seems that the most minor disruption would do.

The bill goes on to require every student code of conduct at every public college in the state to add an anti-bullying policy, and to ensure that this policy "shall include provisions for appropriate responses to harassment, intimidation, or bullying that occurs off school grounds, in cases in which a school employee is made aware of such actions." So, New Jersey public college students, get ready for the watchful eye and the long arm of the campus administrator, because your school will be watching you. Facebook monitoring is just the beginning.

Here are a few of the other points I wanted to make on TV, but didn't get the chance:

1. What happened to Rutgers University student Tyler Clementi was tragic--and already illegal.

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. FIRE co-founder Harvey Silverglate has made this crucial point more eloquently, but it bears repeating again and again. As Harvey wrote in response to Rutgers' new "civility" program, which the school announced shortly after Clementi's death:

If the school really wanted to help students, it should have simply circulated a memo as to the legal violations attendant upon gross invasions of privacy under federal and New Jersey law, and remind Rutgers students that they are expected to obey the law, period. To say that secretly video-recording a roommate's tryst and then posting it on the Web is "hurtful" utterly trivializes what is a serious felony.

2. Sloppy harassment policies silence protected speech.

Imprecise policies like the one New Jersey lawmakers are pushing here invite punishment of protected speech. FIRE's decade of experience defending student speech illustrates that the vast majority of students punished for protected speech are wrongly found guilty of harassment. Examples abound, from the Indiana University - Purdue University Indianapolis student-employee found guilty of racial harassment for merely reading the book Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan during his work breaks, to the student at the University of New Hampshire found guilty of harassment and evicted from his dormitory for posting flyers suggesting that freshman women could lose weight by taking the stairs instead of the elevator.

3. We need to take a deep breath.

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.

Finally, I'd like to give FIRE President Greg Lukianoff the last word here. In an e-mail sent to FIRE staffers last week, Greg wrote:

"Bully" is a childish word that invokes the common but unfortunate reality of mean children. Therefore, I think that using "bullying" to refer to the behavior of college students is not only deceptive, but also dangerous and wrong. Almost all the conduct that the "anti-bullying" initiatives seek to address is already a crime or offense of some kind. Invasions of privacy, stalking, and actual harassment are (and should be) already banned. The idea that we should crusade against allegedly "bullying" adults fundamentally misunderstands that free speech is part of our system for testing our ideas using words rather than weapons. Open debate and discourse is how we determine nothing less than how we order our society, what is false, what wars we should fight, what polices we should pass, who we should put behind bars for the rest of their lives, and who gets to control our government. This is a deadly serious business, and while protecting children from abuse is a noble goal in many ways, it cannot be allowed to hobble the gravely important exchange of ideas upon which our nation depends. The new emphasis on collegiate "bullying" treats adults like kindergarteners and forgets entirely the seriousness and rightful passions ignited by the issues we face in our democracy every single day.

Well said, Greg.