Sticks and Stones

Bullying seems to be a hot topic this year.  There are at least three bills in the House dealing with bullying: HF 143 (to create civil and criminal penalties for parents who fail to prevent students from engaging in harassment or bullying), HF 187, and HSB 196.  Of these three, only HSB 196 survived the first funnel deadline by being voted out of the House Education Committee on March 7th.

HSB 196 would separate the definitions of harassment (based on actual or perceived trait or characteristic of the student) and bullying (based on reasons other than an actual or perceived trait or characteristic of the student).  Would add social networking internet sites to the definition of “electronic”.  Would require school district policy to prohibit engaging in harassing and bullying behavior while in school vehicles or while using any school property or equipment.  Would encourage the use of evidence-based programs designed to eliminate harassment and bullying in schools.  Contains the following rule of construction:

a.  This section shall not be construed to permit restraint of or discipline for speech addressing legitimate matters of public concern, including speech that a reasonable person would consider an expression of political beliefs, religious beliefs, or other categories of expression protected by the United States and Iowa Constitutions, or that a reasonable person would not find substantially likely to constitute “harassment” or “bullying” as defined in this section.

The bill is also not to be construed to prevent schools from responding to or addressing an act or conduct that occurs outside of school, school vehicles, school functions or school-sponsored activity, or while using school property or equipment.  [Lobbyists from Iowa Department of Education, the Governor’s Office, and School Administrators of Iowa are registered in favor of this bill.]

Shane Vander Hart raises questions about the practical difficulties of granting a school district authority to intervene in out-of-school incidents at Iowans for Local Control.  Chris comments on freedom of association issues raised by the bill at A Blog About School.

This bill also raises First Amendment issues and would raise these issues with or without the explicit recognition of the First Amendment issues in the rules of construction.

Eugene Volokh, a professor of law at UCLA and blogger at The Volokh Conspiracy, has previously testified “about the First Amendment constraints on ‘bullying’ and ‘harassment’ in K-12 schools” and has revisited the issues in a recent blog post on a Minnesota “bullying” bill.  Professor Volokh’s written testimony before the U.S. Commission on Civil Rights is available here (see the written testimony for legal citations) and is the source of the following discussion and quotations attributed to Professor Volokh.

Professor Volokh notes that these types of laws can be overly broad in defining “bullying” or “harassment” to include constitutionally protected speech, that there is no “harassment exception” to the First Amendment free speech clause, and that vague rules can cause people to avoid otherwise constitutionally protected speech for fear that school administrators will find that the speech created a hostile or offensive environment.

Professor Volokh also notes that policies aimed at off-campus speech raise special constitutional difficulties:

It’s true that off-campus speech could cause on-campus disruption, and that off-campus Web sites can increasingly be seen at school, whether on library computers or on students’ cell-phones and iPads.  And it’s easy to sympathize with school officials’ desire to prevent disruption caused by speech, including off-campus speech.  But restrictions on on-campus speech can at least be defended on the grounds that the students remain free to speak elsewhere.  Restrictions that apply to all speech that could cause trouble at school flatly ban all such speech by students, and leave no alternative channels for students to speak.

Professor Volokh goes on to state:

Public high schools may not ban their students from telling jokes, even racist or anti-gay jokes, or expressing views about race relations, religions, cultures, sex roles, homosexuality, or what have you on their weblogs or Facebook pages.

What are schools to do, then?

The “sticks and stones” type cases are straightforward as Professor Volokh notes that “schools can and should punish violence and vandalism.”  (And, of course, off-campus violence and vandalism may be punishable under Iowa criminal law.)

The “words” cases are more difficult.  Certainly words can be very hurtful but they also raise First Amendment issues.  The First Amendment may limit actions the state or the school district may take to prohibit or punish speech, but it doesn’t render us entirely powerless to address bullying or harassment.

Professor Volokh notes that schools “can and should punish threats of violence,” can “‘prohibit the use of vulgar and offensive terms’ at school,” and can “restrict on-campus statements when there is evidence of a substantial risk that they will materially disrupt school activities.”

Schools also have the “more speech” option (see generally the Popehat blog on free speech issues, for example here [not for the easily offended, by the way]–the answer to speech we don’t like is more speech, not legal restraint on the speaker).  Professor Volokh suggests that “schools can and often should condemn rude and harmful speech, even if it is constitutionally protected.”  Even if the school can’t prohibit or punish unkind comments posted on Facebook or Twitter, the school can speak out against the posting of unkind comments.  Professor Volokh offers suggestions about how such condemnation might be done.

Schools might also want to reflect critically about how school policy choices might play a role in unkind behaviors.  For example, Chris at A Blog About School has written extensively about concerns about what children really learn from PBIS and other school practices (see, for example, here or here).  Katherine Beals at Out in Left Field has written about the potential pitfalls of group work for less socially-adept children (see, for example, here and here).

Finally, we don’t have to wait for legislatures or schools to take action.  Parents have an obvious role to play in engaging our own children to think about these issues and encouraging them to choose to be kind to and respectful of others.  And anyone can participate in “more speech”; see, for example, @westhighbros tweeting positive comments about members of their school community or this video made by a victim of bullying.

I’ll end with an obligatory disclaimer–this is not a legal opinion or legal advice–and a question: do you think that schools should have authority over conduct or speech that happens outside of school?