Emily Bazelon and the Danger of Bringing "Anti-Bullying" Laws to Campus

As the moral panic about bullying moves beyond grade school and into our nation's universities, it poses a serious threat to constitutionally protected speech.
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Alone in school, young girl standing away from schoolyard friends as they make fun of her behind her back
Alone in school, young girl standing away from schoolyard friends as they make fun of her behind her back

If those of us who defend civil liberties had to name our greatest historical adversary, the leading candidate could be summed up in two words: moral panic. Moral panic is a sudden, powerful, and often highly exaggerated perception within a society that people or their values are facing a dire threat. The concept has been discussed for nearly two centuries, with the classic example being the witch hunts of Medieval and Renaissance Europe. But the phenomenon is no stranger to modern times. In the 1950s, Americans rallied against comic books, which were thought to cause all manner of societal evil. In the 1980s, some even claimed that Dungeons & Dragons led to juvenile delinquency and Satanism. Of course, moral panics aren't always based on pure illusions. It is understandable that some Americans panicked when Stalin obtained nuclear weapons, and the attention to child molestation in the 1990s was long overdue. But regardless of the justification, moral panics tend to be so galvanizing that civil liberties and our legal commitment to the presumption of innocence are often marginalized.

One of the latest instances of moral panic is our heightened awareness of bullying. In many ways, we are past due for a pushback against excessive cruelty by children against other children. While bullying has likely been around as long as civilization has, there is no reason not to expect better for current and future generations. But at the same time, the recent outcry against bullying has all the same pitfalls as any other moral panic: the false sense of a new epidemic, the focus on a category of individual who personifies societal evil (and therefore is safe to demonize and despise), an almost irresistible opportunity for grandstanding, and a desire in some circles to eliminate the problem by any means necessary. Add the fact that this moral panic involves children, and you have a concoction that is none too friendly to reasoned, deliberate, and thoughtful debate.

Considering all of this, I am both pleased and relieved that Emily Bazelon has become a leader in the discussion about how we should address bullying. Her book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy, approaches the topic with an uncommon thoughtfulness and sobriety. She shows little interest in oversimplifying the problem and applies lawyerly and journalistic skepticism to a topic that badly needs clear, careful thinking.

While the book has already received an exceptional amount of coverage, I want to pay particular attention to the many serious cautions it presents. Bazelon emphasizes "bullying, wherever it takes place, isn't on the rise. It feels more pervasive only because the Web is pervasive," and that "Though bullying is a problem that cuts across lines of class, race, and geography, the reality is that most kids aren't directly involved -- either as perpetrators or as targets." She also repeats that punishing bullying often is not the best answer. I was pleasantly surprised to see her acknowledge that there "is truth in the old sticks-and-stones chant," for which the book is named. The saying has never meant words don't hurt; rather, it's a mantra intended to help children cope with that pain and to put the opinions of others in perspective. She writes "most kids do bounce back from cruelty at the hands of other kids," and that learning resilience and how to face adversity are essential parts of growing up.

Bazelon even bravely weighs in at length about the tragic case of Phoebe Prince, a high school student who hanged herself shortly after being verbally taunted by fellow students. Rather than making it a simple morality tale of pure good versus pure evil, Bazelon teases out how complex the case actually is -- and how, like many other such stories, it could perhaps be better understood as illustrating the urgency of recognizing the warning signs of depression and self-harm. Her discussion of the Prince case also showcases how the public can whip itself into a vengeful frenzy and how the dangerous retributive impulse can be amplified beyond all reason in the midst of a moral panic. Bazelon accomplishes all of this while displaying an all-too-rare concern not only for the bullied, but also for those accused of bullying. In one of many passages that should be read over and over she writes: "But when a bullying incident blows up into a media frenzy and one teenager comes to stand for malice writ large, we lose sight of our own standard for giving kids a second chance. Instead, we indulge our primal urge for revenge."

Bazelon and I agree on the need for cultural solutions to bullying, as well. She points out early in the book that "social norming" -- that is, letting children know that most kids do not bully -- can greatly help in making the phenomenon less common. She warns against anti-bullying "hucksters," consultants who charge hefty fees to apply a dubious quick fix to the problem, and this is a timely and useful reminder.

Bazelon recently wrote an important piece for The New York Times in which she pointed out that the definition of bullying is "expanding, accordion-like, to encompass both appalling violence or harassment and a few mean words." She recommends a narrow definition of bullying and critiques the efficacy of sloppily drafted legislation in addressing the problem.

Such legislation often causes far more problems than it solves. Minnesota, for example, is on the verge of passing a vague, overbroad bill that bans speech -- even a single word, image, or action -- that interferes with a student's ability to participate in "a supportive learning environment" on campus. The bill also targets speech that "creates or exacerbates a... perceived imbalance of power between students." As Professor Eugene Volokh of the UCLA School of Law notes, determining the meaning of such prohibitions is virtually impossible, and the language of the bill is so broad and vague that it "would require restrictions on a vast range of speech."

My experience in defending free speech on college campuses only confirms Bazelon's skepticism and demonstrates the many pitfalls of attempts to legislate away a moral panic. In my book, Unlearning Liberty: Campus Censorship and the End of American Debate, I provide example after example of how schools use vague, broad rules to squelch expression that is often at worst mildly offensive, or otherwise common, everyday speech (one absurd repeat example includes codes such as Drexel University and the University of Connecticut's former ban on "inappropriately directed laughter"). Such codes can be used to squelch the dissenting and discomfiting, or speech that an administrator simply dislikes. On today's campuses, "harassment" is the most abused rationale for speech codes and speech-based punishments. For example, the University of Central Florida charged a student with harassment for calling a student government candidate a "jerk and a fool," Grambling State University includes comments about "hair color" in its definition of harassment, and a professor at Appalachian State University was suspended for harassment because she showed a documentary that examined and criticized the adult film industry.

This trend is striking because the legal definition of harassment is far more limited than even the narrowest proposed descriptions of bullying. In its 1999 ruling in Davis v. Monroe County Board of Education, the Supreme Court defined student-on-student harassment as targeted, discriminatory conduct that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victims are effectively denied equal access to an institution's resources and opportunities." Yet school after school implements unconstitutional harassment policies that extend far past these boundaries.

As the moral panic about bullying moves beyond grade school and into our nation's universities, it poses a serious threat to constitutionally protected speech. Attempts at anti-bullying legislation like the recently reintroduced Tyler Clementi Higher Education Anti-Harassment Act greatly exceed the student-on-student harassment standard established by the Court in Davis.

Plainly stated, anti-bullying laws have no place on the college campus, where almost all students are adults. During their college years, students must be free to explore new ideas without the fear of being punished for controversial speech. To some, the distinction between K-12 and higher education seems somewhat arbitrary, as, they argue, some freshman are the same age as high school seniors, but this misses several crucial points. First of all, while there are a small number of minors in college, the institution of higher education ranges from teenagers to senior citizens, from freshman year to the completion of PhDs on important and taboo topics that might make most people squeamish. Take law school, for examples. While there may be some superficial similarities, I can assure you that law school and high school are different ballgames, with law school requiring much more intellectual rigor, resilience, and tolerance for topics and issues that can and probably should make many people uncomfortable (for example, a well-written criminal law exam is a study in the grizzly, dark side of human nature. It's a topic that cannot be handled with kid gloves).

The roles of high school and higher education are fundamentally different. We do not rely on high schools to be our engines of intellectual innovation, bold thinking, and change; we rely on higher education for that. And research indicates that students already feel somewhat nervous about expressing unpopular views on campus. Applying a new legal anti-bullying regime will, I can all but guarantee, make matters much worse and, I can further guarantee, will be used to justify strange forms of censorship that ultimately have nothing to do with bullying. (For a powerful recent example of this, check out what happened at Central New Mexico community college last month.) Though some lawyers, advocates and courts have lost sight of it, there should be a bright line distinction between K-12 and higher education for a whole variety of reasons, not the least of which is that we've decided that the age of 18 is a special significance allowing when citizens can vote and die for their country. (Read this article for an in-depth discussion of the issue.)

This does not mean college students are unprotected. In fact, there is very little in the way of serious behavior that a university cannot prevent through its anti-harassment policies, its stalking rules, its prohibition on threats, or other standard rules. It is always worth noting, for example, that the spying that reportedly led to Tyler Clementi's suicide (a conclusion that Bazelon points out as oversimple) was already clearly illegal in the state of New Jersey. Additional laws and administrative burdens are not needed in higher education which is already prone to overreaction. New vague and subjective laws to prevent hurtful speech will only push campus administrative overreach into overdrive.

How we prevent bullying is a charged and emotional topic, but it is my hope that sober and careful discussion of it, like that presented by Emily Bazelon's book, can help prevent this moral panic from producing results that we later look upon as foolish or even deeply harmful.

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