Why Time Magazine is wrong about New Jersey’s cyberbullying law

In the latest edition of Time Magazine, author and Yale law professor Adam Cohen presents an overly simplistic portrayal of New Jersey’s new “cyberbullying” law as a “model” for the nation.

Cohen’s method of analysis, which typifies the reasoning of many state legislators, can be reduced to this: “Bullying is a big problem. This is a tough legal response. Therefore, it is good.”

Well, maybe. But when even the lobbyists for school administrators are publicly fretting that the schools are being given too much authority (or as they see it, too much responsibility), then you have to wonder whether the train has jumped the rails.

Assembly Bill 3466, the New Jersey’s “Anti-Bullying Bill of Rights Act,” took effect as of the start of the 2011-12 school year. The law targets the undeniably worrisome problem of meanness and incivility, in person and online. A.B. 3466 was a direct response to the tragic death of Tyler Clementi, a Rutgers University freshman who killed himself after his college roommate secretly recorded him in a sexual encounter and posted the video on the Web.

What was done to Tyler Clementi violated both pre-existing statutory law (against taping and publishing people’s sexual acts without consent) and common law (against invasion of privacy). Ample legal remedies existed to prosecute Clementi’s harassers even before the law enacted in his memory. In fact, the lead perpetrator, Dharun Ravi, faces serious charges including intimidation, witness and evidence tampering, and invasion of privacy, carrying up to 10 years’ imprisonment, all crimes that existed before New Jersey enacted A.B. 3466.

The new law significantly augments the role of schools and colleges in responding to acts of incivility, in ways that at times are both dangerous and constitutionally suspect.

Most notably, the law defines “bullying” to include a gesture, act or communication that is based on a student’s “distinguishing characteristic” and that causes a student severe emotional harm — regardless of whether any conduct takes place on campus or whether there is any discernible impact on the school. By this definition, a text message from a boyfriend to a girlfriend saying, “I’m dumping you for your best friend, Suzy, because I like blondes better than redheads” would qualify as an act of bullying, which under A.B. 3466 is punishable by suspension or expulsion from school.

If we think that no principal would use his authority so foolishly, just remember two words: “Zero tolerance.” It is not a suspicion that A.B. 3466 will be used to expel innocent kids from school; it is a certainty.

An especially dangerous feature of New Jersey’s new law imposes an absolute and inflexible requirement that any school employee who learns of an incident of bullying immediately report the matter to the principal, who then is absolutely and inflexibly required to notify the family of each student involved. No exception is made for the student who cries on the shoulder of a favorite teacher but begs the teacher not to tell. No exception is made for the student with an abusive parent who is certain that a call home from the principal will make life worse. No exception is made for school counselors or psychologists, who may have an ethical duty to keep the confidences of the kids who confide in them.

The obvious incentive for a fear-stricken student will be to avoid getting counseling, knowing that anything told to the counselor will immediately go back to the principal, to the student’s family, and even to the harasser’s family. This is the kind of decision — harmless on the drawing board, destructive in real life — so often made by shortsighted politicians who fail to include students and teachers in their deliberations.

It is a commonplace, but wrongheaded, legislative response to say: “Something terrible has happened. Therefore, we must outlaw something that is different from, but somewhat comparable to, the terrible thing.” This is precisely what happened in Missouri, where a teacher’s sexual attack on a student in the year 1980 — some 23 years before the advent of social networking sites — somehow morphed into a justification to ban teacher-student communication on Facebook.

Cohen acknowledges some (but not all) of the defective draftsmanship in the New Jersey law, but shrugs off these defects. The costs — in unnecessary litigation, in the uncertainty that students will experience not knowing whether a simple joke will get them suspended from school as bullies — are, in his words, “worth the trouble.”

If a problem is awful enough — and kids killing themselves must be atop anyone’s list of awful things — then any response can be rationalized, no matter how overzealous and no matter how ineffectual. Cohen’s endorsement is all about the awfulness of the problem, and not at all about the effectiveness of the solution.

Of all of the things that America’s public education system does competently, discipline is at the bottom of the list. Most schools are bad at it; some are disastrously so.

Study after study is exposing how trigger-happy schools excessively reach for the remedy of out-of-school suspension for minor (or imaginary) slights, with the burden falling disproportionately on minority students.

Misfired school discipline has its own grave consequences. In just one suburban Washington, D.C.-area school district, two student-athletes have committed suicide in the last three years when facing harsh disciplinary penalties for minor substance-abuse offenses. Parents in that school district were able to use freedom-of-information laws to document that, out of the last 5,025 disciplinary cases students appealed to a “neutral” hearing officer, the students won exactly zero times, no matter how flimsy the allegations.

Did New Jersey study whether more kids kill themselves as a result of bullying as compared with intemperate school discipline? Or was one headline-grabbing suicide enough for headline-hunting legislators to act?

To be sure, there are commendable features of New Jersey’s law, including retaliation protection for those who blow the whistle on bullying, and enhanced training for everyone in the school community from school board members on down. Schools are terrible at punishing, but all kidding aside, they’re really pretty good at educating. That’s the way — and the only way — they should be tasked with responding to misbehavior that takes place entirely off campus.

Cohen concludes that “perhaps the most significant thing” about the New Jersey law is “the strong message it sends.” In other words, constitutionally unsound and practically unworkable laws are to be commended — and emulated as models — so long as we think they might scare bad people. That rationale could justify an awful lot of bad lawmaking — waterboarding and confinement in Guantanamo Bay would also send a “strong message” to people who use nasty language on Facebook. Surely we aren’t prepared to go there.

It’s not time to put New Jersey’s statute in the copier and crank out 49 duplicates. It’s time to take a deep breath, put our emotional distress over heart-wrenching cases like Clementi’s in perspective, and bring young people into the process of creating truly effective educational programs that will address the hatred that motivates bullying in all of its manifestations. That includes the bullying of young people by their own school administrators, a problem that laws like New Jersey’s will only worsen.