tag:blogger.com,1999:blog-7302245627574027504.post5341528873849980556..comments2019-05-15T23:59:20.159-07:00Comments on Feminist Legal Theory: Are we going too far to protect our kids?Lisa R. Pruitthttp://www.blogger.com/profile/16469550950363542801noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-7302245627574027504.post-44004581402625758212011-12-02T14:18:53.472-08:002011-12-02T14:18:53.472-08:00Thanks for the post, Brown Eyed Girl. I am glad th...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.<br />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.<br />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.<br /><br />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.tomindavishttps://www.blogger.com/profile/05629980736351969410noreply@blogger.comtag:blogger.com,1999:blog-7302245627574027504.post-363725768228551462011-11-22T22:55:04.290-08:002011-11-22T22:55:04.290-08:00That's certainly an interesting idea. I never ...That's certainly an interesting idea. I never imagined an analogy quite like this.<br /><br />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]<br /><br />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]<br /><br />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?<br /><br /><br />[1] http://www.cnn.com/SPECIALS/2011/bullying/<br /><br />[2] http://blogs.discovermagazine.com/80beats/2011/08/09/bullied-boobies-grow-up-to-become-bullies-themselves/<br /><br />[3] http://news.bbc.co.uk/2/hi/uk_news/7037984.stmBrown Eyed Girlhttps://www.blogger.com/profile/08145202398040248819noreply@blogger.comtag:blogger.com,1999:blog-7302245627574027504.post-44268626611668254982011-11-22T11:11:17.321-08:002011-11-22T11:11:17.321-08:00The past few readings for Feminist Legal Theory br...The past few readings for Feminist Legal Theory brought a constructive analogy to mind. <br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.Rose Sawyerhttps://www.blogger.com/profile/03312561091132429675noreply@blogger.com