All those like you: identity aggression and student speech.

AuthorWaldman, Ari Ezra

TABLE OF CONTENTS I. INTRODUCTION II. IDENTITY-BASED AGGRESSION AS AN ATTACK ON PERSONHOOD III. IDENTITY-BASED AGGRESSION AND TRADITIONAL PEER-TO-PEER AGGRESSION COMPARED A. Definitional Similarities B. The Sociology of Identity Based Aggression IV. IDENTITY-BASED AGGRESSION AND THE SUPREME COURT'S STUDENT SPEECH JURISPRUDENCE V. CONSISTENCY WITH LIBERAL AND CLASSICAL EDUCATIONAL VALUES A. Classic Aristotelian Values B. Modern Liberal Values VI. CONCLUSION I. INTRODUCTION

According to recent studies, approximately eighty-nine percent of students have heard the word "gay" used frequently in school in a negative way and more than seventy-two percent reported hearing other homophobic remarks (for example, "dyke" or "faggot") in school and online. (1) Casual use of antigay rhetoric does not make it any less devastating. This verbal aggression, including saying "that's so gay" (2) in a critical way and wearing t-shirts that read, "Be Happy, Not Gay,"3 starts early (4) and follows gay, lesbian, bisexual, transgender, and questioning (LGBT) (5) students from elementary through high school, and from school into cyberspace. For example, despite Facebook's best efforts to silence hate in accordance with its Statement of Rights and Responsibilities, (6) the popular online social network has had its share of antigay hate groups: "Keep Queers Out of America," "STOP AIDS!!!!! KILL GAYS AN [sic] NIGGERS!!!!!!!!!," "people who hate fags," "GAY ? news flash: we fuckin' hate you !!," and "Kill All Gays," to name just a few. (7)

This hate does not always target a particular individual and, therefore, does not look like the traditional face-to-face aggression (8) that plagues schools and pushes teens to suicide. (9) But the prevalence of this behavior, the ease with which it condemns an entire identity group, and its effects--particularly on those who hear it, on those who identify as gay, and on the school as a whole--merit disciplinary consideration from the school. Elsewhere, I have discussed the affirmative steps schools can take to improve school climate and prevent these attacks from happening in the first place. (10) I have also argued that determining a school's disciplinary authority over cyberattacks requires us to distinguish between single incident peer-to-peer aggression and repeated bullying. (11) In this Article, I tackle a special subset of face-to-face aggressors and cyberaggressors--the identity-based aggressor--and argue that identity harassment is a unique and peculiarly harmful form of social aggression and, therefore, school discipline of identity-based aggressors is consistent with student First Amendment rights.

Identity-based aggressors highlight a quality intrinsic to someone's personhood (12) and demean it, deprive it of value, and use it as a weapon. They attack women, (13) racial minorities, (14) religious minorities, (15) and other traditionally victimized groups. And, as such, they attack not only their particular victims but also their victims' communities. Identity-based aggressors commit a constitutional evil not only because their behavior interferes with victims' access to education, their liberty to express who they are, and their right to participate in our body politic, but also because aggressors perpetuate the legitimacy of a malodorous social stigma attached to any given minority. (16) They may not create, but undoubtedly foster the continued encumbrance of minority identity with social and political burdens that keep minorities at risk of discrimination, social marginalization, and the tacit acquiescence to harm that comes with being different. And, although any of those effects may merit lawful school discipline under the "substantial disruption" standard of Tinker v. Des Moines Independent School District, (17) most federal courts con fronted with peer-to-peer aggression cases miss the consistent rationale for restricting student speech that underlies Tinker and its three supposed exceptions carved out in Bethel School District v. Fraser, (18) Hazelwood School District v. Kuhlmeier, (19) and Morse v. Frederick. (20)

Many courts tend to consider single incidents of identity-based aggression insufficiently disruptive to restrict under Tinker, and sufficiently distinct from lewd speech, official speech, and drug-related speech to restrict under Fraser, Kuhlmeier, and Morse, respectively. (21) But that viewpoint misses the forest for the trees. If Fraser, Kuhlmeier, and Morse depart from Tinker for special types of student speech, they do not depart from the underlying, broader rationale that the reason we restrict certain student speech is because of the effects that speech has on something--on the teacher or her ability to teach; on the administrator or her ability to function in her official capacity; on the school, or its reputation, success, standards of classroom discipline, or curricular mission; and, of course, on classroom discipline. This is what I will refer to as the "effects test." And, a broadly defined effects test makes sense, especially when those effects conflict with both modern liberal educational values that see schools as pristine "marketplaces of ideas" and classical Aristotelian values that see schools as training grounds for civic participation and perfection. Identity-based aggression is an affront to both because it takes the personal effects of peer-to-peer harassment and compounds it, metastasizing its impact over broad populations and creating an environment where teachers cannot teach, students cannot learn, and free speech means nothing. Therefore, under any measure, a school may lawfully restrict it.

This Article answers two categories of questions, one social and another legal. The first series of questions is about the sociology of identity aggression and it seeks to determine whether there is a difference between, say, calling someone a "faggot" and calling someone a "dork." If there is a difference, to what extent is there empirical evidence that suggests that one is more harmful to the victim, to his community, and to his school? The legal problem flows directly from the relative harm posed by identity aggression; it is too simplistic to see the Court's student speech jurisprudence like a pie with discrete bites taken out. Rather, the consistency lays in the common core of concern--namely, the school's ability to teach its curriculum. If that is true, and if calling someone a "faggot" has demonstrably more negative effects on that core of concern, then regulating identity aggression in schools should be a simple matter. To this end, this Article proposes a normative way of understanding the Supreme Court's student speech jurisprudence based on an effects test, which is the consistent rationale underlying the Court's student speech cases. School discipline of identity-based aggressors is consistent with that effects test and retains fidelity to the liberal and classical values running through American public education. Part II defines identity-based aggression in greater detail as attacks on an intrinsic personal characteristic that is salient to a person's or group's identity. This definition relies on current psychological evidence and my own sociological studies. In Part III, I describe the unique harms of identity-based aggression by comparing them to traditional face-to-face aggression. I argue that identity-based aggression devalues personhood, which in turn wreaks particular devastation on a school's and community's social fabric. This damage is exponentially compounded when the identity-based aggression occurs online. Part IV situates those harms within the Supreme Court's student speech doctrine. Tinker and its supposed exceptions are linked by a consistent effects test that bases the constitutionality of school discipline of student speech on some measure of the speech's effects on the school environment. To this end, I argue that the Court's student speech jurisprudence since Tinker should not be seen, as is the conventional wisdom, as a single test and three exceptions, but rather as an imperfect elucidation of one flexible balancing test that assesses the value of the speech versus its impact on the school's ability to teach. Because identity-based aggression irreparably damages the school by harming its reputation and its ability to teach, restricting identity-based aggression makes sense within this framework. Finally, Part V shows how this proposal is consistent with both the liberal and classical educational values that run through Tinker, Fraser, Kuhlmeier, and Morse, further suggesting the proposal's mainstream appeal.

  1. IDENTITY-BASED AGGRESSION AS AN ATTACK ON PERSONHOOD

    Identity-based harassment is not a new concept, but recent media, (22) legislative, (23) executive, (24) and judicial (22) attention on bullying in schools and its attendant suicides has highlighted a wide gap in the current understanding of the nature, effects, and implication of such aggression. (26) For the purposes of this Article, I synthesized current law and social science research and supplemented the work of others with my own surveys of students and identified the best definition of identity-based aggression as aggression based on a core, identifying characteristic that is essential to someone's conception of personhood. This formulation has at least three advantages. First, it is consistent with sociological and psychological studies about aggression and harassment in schools and mirrors current student understanding. Second, it parallels federal law's understanding of the concept, thus making a First Amendment analysis applicable in context. Third, by eschewing artificially formal requirements like immutability, this definition accurately reflects the underlying rationale for legal protections for traditionally disadvantaged or unpopular groups.

    The Department of Children, Schools, and Families (DCSF) in the United Kingdom's Department...

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