Anti-Bullying Legislation: Good Intentions, but…

A New Jersey state law coming into effect today (Sept 1st)  is considered the “toughest legislation against bullying in the nation”. It may, however, also prove to be dangerously overbroad and stifle student speech on a variety of topics.

Called the Anti-Bullying Bill of Rights, the law was adopted in the aftermath of the suicide of a Rutgers University student and the subsequent focus on teen suicide, especially among LGBT students, who are frequently subject to bullying.

The law requires schools and colleges to adopt procedures that would potentially subject every moment of school life to closely monitoring for anything that could be interpreted by someone as “harassment, intimidation or bullying.”  The key provisions prohibit:

▪ any verbal or physical communication, including a single incident

▪ that is reasonably perceived as being motivated either by an 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 a school-sponsored event, on a school bus, or off school grounds

▪ if it may cause substantial disruption of school activities or interfere with the rights of other students, or have the effect of insulting or demeaning any student or group of students or creating a hostile educational environment.

The law is likely to penalize speech that is protected by the First Amendment. Students, for instance, routinely use racially charged language, and even call each other by words that in another context might be construed as a “racial slurs.”  Some students might consider this evidence of a “racially hostile environment,” but many would see it as an idiom widely accepted in certain situations.  It is also common, and even normal, for teenagers to joke about sex, to share stories and images, and to report rumors.  Some may find this offensive, hurtful, and objectionable, but that does not mean the expression loses First Amendment protection, or that the behavior amounts to bullying or harassment.  As the Third Circuit Court of Appeals has held in a similar situation,

“There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.  Moreover, the … policy prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law.”

The expansive and vague language of the law can be easily abused and will invite harassment complaints to address all kinds of conflicts among students.   As Westfield superintendent Margaret Dolan cautioned

“an unintended consequence of the new law could be that students, or their parents, will find it easier to label minor squabbles bullying than to find ways to work out their differences.” 

Compounding the problem is the fact that complaints will be referred to law enforcement, making it highly likely that even a frivolous claim could have devastating and unwarranted consequences.

NCAC strongly supports efforts to prevent bullying and to provide services and resources to the victims, but the New Jersey law, while it does include educational initiatives, is so skewed towards punishment that, like earlier punitive “zero tolerance” policies, it will likely do more harm than good.

Read more about bullying and responses to it here: http://ncac.org/Cyberbullying-Introduction

About Blog of the National Coalition Against Censorship

Blogging Censorship is where National Coalition Against Censorship staff weigh in on the censorship issues on their minds.
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