A First Amendment Deference Approach to Reforming Anti-Bullying Laws

• Author: Emily Suski
• Position: Assistant Professor, University of South Carolina School of Law. LL.M., Georgetown University Law Center; J.D., University of North Carolina.
• Pages: 701-754

A First Amendment Deference Approach to Reforming Anti-Bullying Laws Emily Suski * INTRODUCTION At the risk of making a large understatement, bullying among students is a complicated problem. It can take multiple forms: physical, verbal, relational, which includes imposing social isolation on another, and cyberbullying. 1 Bullying also occurs on a large scale. According to at least one study, approximately one-third of students in middle school grades have reported experiencing bullying. 2 In addition, the effects of bullying are varied and Copyright 2017, by EMILY SUSKI. * Assistant Professor, University of South Carolina School of Law. LL.M., Georgetown University Law Center; J.D., University of North Carolina. The author is grateful to the following individuals for the invaluable feedback they provided on this Article: Scott Bauries, Derek Black, Clark Cunningham, Jim Knoepp, Lauren Sudeall Lucas, Barry McDonald, Mae Quinn, Eric Segall, and Jonathan Todres. The author is also grateful to the participants of the Southeastern Association of Law Schools New Scholars Colloquium, the University of Kentucky College of Law Developing Ideas Conference, and the Association of American Law Schools Conference on Clinical Legal Education Works in Progress for feedback on earlier versions of this Article. Finally, the author owes thanks to Connor Bateman for excellent research assistance. 1. The Centers for Disease Control and Prevention (“CDC”) has developed a uniform definition of bullying. That definition is as follows: [A]ny unwanted aggressive behavior(s) by another youth or group of youths who are not siblings or current dating partners that involves an observed or perceived power imbalance and is repeated multiple times or is highly likely to be repeated. Bullying may inflict harm or distress on the targeted youth including physical, psychological, social, or educational harm. R.M. GLADDEN ET AL., CTRS. FOR DISEASE CTRL. & PREVENTION, BULLYING SURVEILLANCE AMONG YOUTHS 7 (2014). The CDC also notes the multiple forms of bullying, including physical, verbal, and relational, as well as damage to property. Id. at 7–8. 2. Simone Robers et al., Indicators of School Crime and Safety: 2012 , 2012 DOJ BUREAU JUST. STAT. ANN. REP. 46 (2013), http://nces.ed.gov/pubs2013/201 3036.pdf [https://perma.cc/X8QH-L54V]. In some studies these numbers are even higher. One study found that 39% of sixth grade students reported bullying. VICTORIA STUART-CASSEL ET AL., SOCIAL BULLYING: CORRELATES, CONSEQUENCES, AND PREVENTION 3 (2013) , http://safesupportivelearning.ed.gov/sites/default/files/1315%2 0NCSSLE%20Social%20Bullying%20d7_lvr_0.pdf [https://perma.cc/NYC6-GW85]. 702 LOUISIANA LAW REVIEW [Vol. 77 significant, ranging from negative academic outcomes to suicide. 3 Despite the complicated and widespread nature of the problem, most states’ anti-bullying laws call for a school-level response to bullying that lacks a level of nuance to match the problem. 4 Most laws call for, and sometimes require, schools to respond to bullying no differently than any other serious student disciplinary problem, which usually means suspending, expelling, or otherwise excluding students who bully from school. 5 This is so despite the fact that social science research indicates that school exclusion rarely works in response to bullying and can actually exacerbate it. 6 In addition, when bullying takes the form of speech—as much of it does—school interventions also implicate the First Amendment. Public schools are arms of the state. 7 Thus, any intervention in response to 3. Infra Part I.A. 4. All of the states now have anti-bullying laws, and almost without exception, these laws place the responsibility on the schools for addressing the problem. The vast majority focus schools’ responses implicitly or explicitly on school exclusion. See infra note 50 and accompanying text. Kentucky, Idaho, and arguably Montana are the three states that do not call for schools to intervene when bullying happens. Kentucky and Idaho’s laws are in the states’ criminal codes, so the criminal justice system, not the public schools, has responsibility for combatting bullying in those states. IDAHO CODE ANN. § 18-917A (West 2016); KY. REV. STAT. ANN. § 158.150 (West 2016). In Montana, which had no anti-bullying law until 2015, the law prohibits bullying in schools, but does not specifically require schools to take actions to address it. Bully-Free Montana Act, 2015 Mont. Laws 253 (codified at MONT. CODE ANN. § 20-5-207 through § 20-5-210 (West 2016)). Instead, it states that victims can take any recourse available to them under state or federal law. Id. That said, the law also does not preclude schools from punishing bullies–it just does not require it. 5. Infra note 57; see also Brea L. Perry & Edward W. Morris, Suspending Progress: Collateral Consequences of Exclusionary Punishment in Public Schools , 79 AM. SOC. REV. 1067, 1069–70 (2014) (defining and discussing school exclusion). 6. Infra notes 196–202 and accompanying text. That is not to say that the bullying laws even with their focus on school exclusion have had no effect. New research does suggest that the laws have done something to stem the tide of bullying. Mark L. Hatzenbuehler et al., Associations Between Antibullying Policies and Bullying in 25 States , 169 JAMA PEDIATRICS ONLINE 10 (2015). The study did not identify the reason bullying laws have had some effect—whether from raising awareness and therefore increased reporting of bullying or for some other reason. 7. See Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969) (noting “the State in the person of school officials” can impinge on students’ First Amendment rights in school under some circumstances). 2017] A FIRST AMENDMENT DEFERENCE APPROACH 703 bullying that also constitutes speech raises First Amendment questions. 8 This Article explores the problems associated with school exclusion as a response to bullying in light of the complicated nature of the problem and the attendant First Amendment concerns. It argues in favor of drawing on First Amendment jurisprudence, particularly by deconstructing rationales for the deference afforded schools to suppress student speech, to develop better, more comprehensive legal approaches to combatting bullying that also address those First Amendment concerns. In doing so, it also seeks to fill a gap in the literature on bullying. Although scholars have explored the limits that the Constitution, including the First Amendment, places on anti-bullying laws, they have not done so in light of the complicated nature of the problem, the interventions called for in response, or by examining the rationales for public school deference to suppress student speech. 9 First, to illustrate the difficulties with crafting responses to bullying, take the example of Hailee Lamberth. Hailee was a 13-year-old Nevada public school student who tragically committed suicide on December 12, 2013. 10 In her suicide note, Hailee said that she committed suicide because other students at school had been bullying her. 11 According to Hailee’s father, the students had been calling Hailee names like “fat” and “ugly” repeatedly over a period of time. 12 Hailee’s suicide note asked that her school be informed of the reasons she committed suicide so that “next 8. Infra notes 94–96 and accompanying text. 9. These scholars have assessed how the anti-bullying laws can comply with First Amendment and Fourth Amendment limits. See, e.g. , Ari Ezra Waldman, Hostile Educational Environments , 71 MD. L. REV. 705 (2012) (arguing that a particular type of bullying laws, cyberbullying laws, can survive First Amendment challenges); Naomi Harlin Goodno, How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy That Considers First Amendment, Due Process, and Fourth Amendment Challenges , 46 WAKE FOREST L. REV. 641 (2011) (focusing on cyberbullying and proposing that cyberbullying laws comply with the standards set forth in relevant Supreme Court cases, including Tinker v. Des Moines Independent Community School District ); Douglas E. Abrams, Recognizing the Public Schools’ Authority to Discipline Students’ Off-Campus Cyberbullying of Classmates , 37 NEW ENGLAND J. CRIM. & CIV. CONFINEMENT 181 (2011) (arguing that public schools should be responsible for addressing students’ off-campus cyberbullying and can under the First and Fourth Amendments). 10. Trevon Milliard, Father: White Middle School Student’s Suicide Related to Bullying , L.V. REV. J. (Feb. 28, 2014, 7:26 PM), http://www.reviewjournal.com/news /father-white-middle-school-student-s-suicide-related-bullying [https://perma.cc/5W AT-F8K4]. 11. Id. 12. Id. 704 LOUISIANA LAW REVIEW [Vol. 77 time” the school would prevent what happened to her from happening to another student. 13 Notably, at the time Hailee committed suicide, Nevada had an anti-bullying law in place, one that called for discipline, which could include school exclusion as a means to address the problem. 14 Whether implemented or not, the law did not help Hailee. Indeed, even if school exclusion could have helped Hailee, though social science literature suggests it could not, such an intervention may not have been available to the school because any one-time instance of bullying that Hailee experienced may have been protected by the First Amendment. 15 Although schools do have more latitude to suppress student speech, including student-bullying speech, than other state actors, that deference is limited. First, any anti-bullying law has to comply with First Amendment overbreadth constraints. 16 In addition, and as a general matter, schools can only suppress student speech that would otherwise be protected by the First Amendment if the schools can reasonably anticipate the speech will cause a substantial disruption to the work of the schools or infringe on the rights of others. 17 Although this standard...