Anti-Bullying Intent, Anti-Free-Speech Result?

StocktonFreeSpeechProtestLast week, over at A New Voice, I tackled the inevitable collision of anti-bullying efforts and the free speech rights of students.  An expanded version of that piece is below:

A broad new social media policy recently implemented by California’s Lodi Unified School District has sparked protests by students who say the rules go too far and infringe on speech protected by the First Amendment.

The policy requires students to sign a social media “contract” as a condition of participating in any sport or other extracurricular activity.  The agreement enforces a policy intended to curb cyberbullying.  Among other things, the policy states that students may not author demeaning statements about anyone, make “inappropriate” remarks, or otherwise cyberbully through social media websites or messageboards.  Notably, this policy extends to the students’ personal social media accounts, even when posts or comments are created off-campus and outside of school hours.

A first-time violation of the policy could result in suspension from a game or club event.  A second violation can result in outright dismissal from the team or club.  A refusal to sign the contract in the first place would bar the student from extracurricular participation altogether.

Several potential problems with the policy became clear rather quickly.  First, the decision over what material satisfies the vague test for being “inappropriate” or constituting “cyberbullying” is now entirely at the discretion of school administrators.  Secondly, a student need not even write the offending post himself: A Facebook “like” or Twitter re-tweet is enough to trigger the punishment provisions of the policy.

Students at Bear Creek High School have already collected over 300 signatures in opposition to the contract language, as students there say that the rules infringe upon their free speech and privacy rights.

I see all of this as a well-intentioned, but ultimately overbroad measure.

This clash of free speech and anti-bullying policy was inevitable.  We’ll see similar battles play out across the country as the increasingly powerful anti-bullying movement gains more and more momentum.  Politicians and lawsuit-phobic school administrators will practically trip over one another to be first in line to prove their “commitment” to eliminating bullying in all its forms.

Schools, of course, legally have the ability to restrict conduct and the speech of students under certain circumstances.  Stretching that ability to include activity that takes place outside the classroom or school grounds and has nothing to do with the school directly would be a significant (and unlikely) expansion of the landmark Tinker case.  On the other hand, administrators tout these efforts as being not only compelling, but necessarily pervasive in order to have the intended effect of eliminating bullying.

The problem is that “bullying” is a vague, ever-expanding concept.

I discussed this recently here, but the bullying “umbrella” grows larger by the minute.  That’s a problematic fact.  A volatile definition means that those who are in charge of deciding what constitutes “bullying” are prepared to suppress more and more speech as their version of the meaning of the word expands.  It also imposes an unfair burden on students who must treat “bullying” as a moving target, creating the classic “chilling effect” that dots the landscape of free speech jurisprudence.

The Lodi USD administrators argue that these sorts of measures are necessary to prevent teen suicides.  Their stated rationale (and they mention it in every interview) doesn’t surprise me.  In order to convince people to restrict a basic right, it’s usually necessary to proffer a justification capable of scaring the pants off of said people.

For example, if we don’t use intrusive search methods at airports, terrorists may blow something up.  Or, if we don’t use domestic drones, terrorists may blow something up.  Or, if we don’t spy on citizens, terrorists may . . . well, you get the idea.

So, the suicide boogeyman gets trotted out to justify regulating student speech that occurs entirely outside of school.  For me, this is a bridge too far.

I say this as someone who is not only a disciplinarian generally, but also the son of two public school teachers.  I’m all for holding students to a code of conduct while in class or at school in order to minimize distractions and disruptive behavior.  And I’m certainly anti-(real) bullying.

Schools have an unquestionable right to expect their students to refrain from behaving in ways that will create a major disruption to the school’s academic mission.  This proscribable behavior obviously includes bullying.  Under the doctrine of en loco parentis, the school stands in the shoes of the students’ parents or guardians to an extent, wielding a measure of power over the students that it would not normally possess.

However, implicit within the basic concept of en loco parentis is the idea that the school must be a stand-in when parents aren’t present.  Expanding an anti-bullying policy such that the school—not the parent—decides what is and is not “appropriate” even outside of school turns that legal concept on its head.

And, so, when me “liking” a post that an administrator retroactively decides is “inappropriate” means I’m off the football team or out of the National Honor Society, we’ve now done more harm than good.

Administrators’ hearts are in the right place, but letting a risk-averse group of state employees decide what is and is not fair game for students to discuss outside of school troubles me.  The Lodi USD should tighten its policies before a court undoubtedly forces it to do so.

A school system should have the power to take reasonable steps to protect its students from specifically-defined bullying.  However, when those steps serve as a delivery system for broad edicts that curtail speech rights, it’s time to rethink the policy.

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One Response to Anti-Bullying Intent, Anti-Free-Speech Result?

  1. Pingback: Anti-Bullying / Anti-Free-Speech Redux | The Axis of Ego

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