Saturday, November 19, 2011

Are we going too far to protect our kids?

I’ve done it again. What started out as a comment became yet another post. Last week’s “Digital bullying, stalking, and the unfortunate price of free speech,” was thought provoking and it drove me to reexamine my views on recent anti-bullying legislation. I must admit that my views remain the same, but I feel better for having reconsidered them. As I understand the author’s views, he believes recent anti-cyberbullying laws are necessary to combat the ruthless torment taking place in (and outside) our schools. However, there is a concern that some laws push the boundaries too far, allowing schools to monitor bullying in the private sphere away from campus. These laws, such as a new law in Connecticut, create a gray zone open to interpretation. This interpretation is problematic because it allows schools to potentially infringe on private speech made away from schools. While the author does not condemn the premise of these laws, he does raise a legitimate concern. Forgive me if I have misread the piece; if I am wrong, please feel free to correct me.

However, if I am right, I must disagree. Admittedly, these laws do expand the reach of schools to regulate and punish various forms of bullying, including cyberbullying. But they do not overextend their reach. The Connecticut law goes on to limit its application to “bullying (A) on school grounds, at a… school-related activity… and (B) outside the school setting if such bullying (i) creates a hostile environment at school… (ii) infringes on the rights of the student… at school, or (iii) substantially disrupts the education process or the orderly operation of a school[.]” See Public Act No. 11-232, Section 1(b)(15). The California Education Code includes a similar provision. Section 48900(r) provides that any student who is engaged in acts of bullying, including bullying by electronic means, may be suspended or expelled from their school. Under 48900(s), this law is applicable to any act that "is related to school activity or attendance." In other words, any bullying that prevents a student from attending class could be punished by the school- even if it takes place off-campus.

I believe these laws fall within the parameters of the Tinker Test. See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). Bullying imposes deeply emotional and psychological harms to its victims. These harms "materially and substantially" disrupt a school's ability to provide an education to its students; therefore, schools should be given the ability to regulate such actions. “[C]onduct by the student, in class or out of it, which for any reason-whether it stems from time, place, or type of behavior-materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” Tinker, 393 U.S. at 513 [italics added for emphasis]. The Connecticut and California laws encompass bullying that creates a hostile environment at school or prevents a student from attending school. Bullying, even “private” bullying, infringes on these rights possessed by teenagers and adolescents.

In my mind, the Tinker Test is still a viable guideline for our schools. Although time and technology have changed, the responsibilities of schools to provide a safe learning environment have not. It is true that our schools should be mindful about overextending their reach under these laws. But these laws have been properly and narrowly tailored to prevent any form of bullying that affects their educational mission alone. Any bullying that falls outside those restraints, such as backyard teasing, retains its “protected private speech”-qualities, however regrettable.

These laws represent a pragmatic approach to the vast misuses of technology. As in the story of Amber Cole, we are too often witnesses to young men exercising their masculinity to establish patriarchal norms over women. Adolescent girls are significantly more likely to have experienced cyberbullying in their lifetimes, but society’s idea of a “masculine man” also drives teens to attack other boys for being gay or simply not “manly enough.” Surely my colleague was correct, informal means such as comprehensive education programs or presentations and other avenues appealing to teens are a powerful way to address the problem before it begins. But these anti-cyberbullying laws are also essential tools to help protect our young people.


Rose Sawyer said...

The past few readings for Feminist Legal Theory brought a constructive analogy to mind.

Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003) was a case involving a woman's petition for citizenship that turned on whether she had been subject to "extreme cruelty" in the United States. Although her husband was physically and verbally abusive to her in Mexico, she fled to the United States to avoid him. He contacted her by phone and convinced her to return to Mexico -- and to him. The Court, in an inspiringly progressive opinion, held that Hernandez had been subject to extreme cruelty in the United States on these facts because battered women are caught in abusive cycles. Even if a "reconciliation" phase of the cycle occurs domestically, the cycle in itself is extremely cruel and therefore the woman meets the legal standard to gain citizenship.

This seems in some ways analogous to what happens in instances of off-campus bullying. Although the specific instances of bullying are discrete, the psychological damage that it imposes is continuous. Accordingly, bullying does cause an "educational disturbance" even when it occurs off campus, on a blog, etc.

This would, of course, be something of a Pandora's box as a legal standard because there is not (as far as I know) the same kind of rigidly-documented information about the psychological effects of bullying as there is about the psychological effects of intimate partner abuse (Battered Women's Syndrome). For a court to simply say, "bullying has continuous psychological effects" without the research to back up that statement would invite litigation in more instances than is probably desirable.

That said, if backed up by the appropriate research, this could potentially be a strong argument for those in favor of punishing off-campus bullying.

Brown Eyed Girl said...

That's certainly an interesting idea. I never imagined an analogy quite like this.

It is true that Battered Woman's Syndrome and the cycle of domestic violence have been closely followed and documented. But I wouldn't be surprised if studies regarding the psychological impact of bullying began to emerge with more regularity. In the past few years, stories of children who tragically take their lives after enduring years of bullying have become all too common. The issues of teen violence and bullying have been pushed to the forefront of public discussions. [1]

Certainly, the groundwork has been laid by recent studies finding that bullied baby birds often become bullies themselves. [2] Researchers have found that the victims' stress levels greatly increase and these changes in their hormonal levels follow them for the rest of their lives. And others believe these patterns exist in adolescent and adult humans. [3]

More and more, research is moving closer toward establishing that bullying involves its own cycle of violence. This cycle can result in serious psychological changes, and sometimes death. As the research becomes more established, will courts be more willing to expand their understanding of domestic violence to encompass various forms of bullying?




tomindavis said...

Thanks for the post, Brown Eyed Girl. I am glad that my post triggered thoughts, comments, and a well-thought out response. I was always equivocal in my position, recognizing that this unanswered question left me and others wondering just how far Tinker could and would reach. Yet I remain unconvinced that it can be applied to private, off-campus behavior.
First, there are concerns of overbreadth. The language of the Connecticut statute, narrow and detailed though it is, may incorporate some case that satsify Tinker's material and substantial disruption test; but it could easily sweep up a great many acts that cause "psychological harms" but which stand outside Tinker. A school board would be left with discretion that could very easily reach excess, and trample on private rights of jackass students who nonetheless have been only offensive under first amendment analysis. That worries me, and it would moreover prove vexing for judges dealing with the various case-by-case mess.
Second, even if the causation can be made (itself a problem) between the off-campus, unsupervised act and the disruption on campus, I am concerned that such an approach would be only addressing one part of Tinker. I may be wrong, but Tinker speaks not just to the existence of the disruption. It speaks also to the key fact that teachers, or the school, are in a custodial role when the conduct occurs. It is within the reach of school's custodial power that the disruption occurs, and for that reason I believe we should be very careful to establish material disruptions stemming from acts not just outside the reach of teacher's power or their duty, but in fact INSIDE the homes of individuals not acting in the capacity of a student. Certainly I don't think the Tinker court had properly envisioned that such disruption could stem from electronic message from private homes. They may very well have balked at allowing their ruling to go that far.

I understand that acts have impact far beyond their immediate reach. Much of hornbook torts law recognizes how far that reach extends. Yet in the absence of such a tort (threats, defamation, invasion of privacy, etc.), can we feel comfortable with a school extending their custodial role in that fashion? I cannot, as much as I recognize just how bad cyberbullying can be, and what damage it causes in U.S. schools.