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.