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 a nd

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, C lark 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 K entucky 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 Batema n 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 d ifferently 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 re sponse 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 Mon tana 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. M orris, 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 tid e 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 re porting 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 a rgues 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 co mplicated 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 H ailee 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.