Louisiana bullying frenzy — violating the First Amendment, or just trying to?

In the waning days of their 2012 session, Louisiana legislators have the unappetizing choice between two anti-bullying bills: One that violates the Constitution, and another that is intended to.

To understand how thoroughly cyberbullying hysteria has taken hold of state legislators, consider the disappointed comments of state Rep. Patricia Haynes Smith, D-Baton Rouge, after a Senate committee rejected her bullying bill in favor of a Senate alternative.

Criticizing the Senate version, Smith told Baton Rouge’s NBC-TV 33: “I still have concerns about the First Amendment right being in it because the First Amendment gives individuals in my opinion the right to bully.”

That’s right: It is Smith’s express intention to enact a law giving students fewer rights than the First Amendment requires.

Which makes it especially sad that Smith’s bill is the one that actually might be constitutional. It’s bad enough to aim for unconstitutional, but shooting and missing?

Both bills would require school districts to enact disciplinary policies applying to student-on-student bullying, but the Senate version, by Sen. Rick Ward III, D-Port Allen, goes much further.

SB 764 has already passed the Senate, is awaiting action in the House, and has the support of Gov. Bobby Jindal’s administration. It would give Louisiana one of the most extremist and dangerous bullying laws in the country — for the 15 minutes that it stays on the books before a federal judge throws it out.

The bill defines punishable “bullying” to include not just acts that all reasonable people would agree are already fair game for disciplinary action (punching, kicking, threatening) but also such conduct as “shunning or excluding” a classmate from activities, “obscene gestures and making faces,” “taunting,” “calling names” or “spreading untrue rumors.”

Such behavior would become grounds for suspension or expulsion if it has the effect of “substantially interfering with” the victim’s performance in school. But the First Amendment does not allow for punishment of the content of speech simply because it makes one student distressed enough to lose concentration. Speech is punishable only if (in the words of the Supreme Court’s Tinker standard) it creates “material and substantial interference” with good order in school — not with a single student’s emotional state.

SB 764 does not require that the speech be intended to interfere with a student’s performance. Nor does it requires that the victim’s reaction be a reasonably foreseeable one. So a student who “taunts” a classmate about his new braces, or about his favorite team losing the Super Bowl, could be facing suspension from school if the classmate is emotionally fragile and reacts in an unpredictably severe way.

Including minor everyday slights in an anti-bullying bill so dilutes the concept of bullying as to cheapen the suffering of real victims, and to risk undermining the legitimacy of the disciplinary process. If school becomes a place of “zero tolerance for unkindness,” then many tens of thousands of kids will be placed at increased risk of dropping out, and losing out on college admission, by undeserved suspensions and expulsions.

That is why Senate Bill 764 is doubtfully constitutional. Here is why it’s also a terrible idea:

  • It would mandate — with no exceptions — that every incident of bullying be reported to the victim’s parents, even if the victim begs for confidentiality. And it would prevent school employees from interviewing a victim about his bullying experience without offering parents the chance to be present — again, even if the victim begs to speak to a counselor in private. The obvious result: Kids from troubled homes will stop reporting bullying at all. And kids no longer will trust school counselors to keep confidences. Discouraging kids from reaching out to a trusted teacher or counselor for help — and discouraging those trusted adults from finding out about kids who are hurting — is the opposite of an anti-bullying strategy.
  • It requires not just school employees but also volunteer chaperones to report all instances of bullying they learn about. When you impose a legal duty, you also open up the risk of civil liability for failing to perform that duty. As Louisiana soon will learn if SB 764 becomes law, half of the parental volunteers will quit for fear of being sued, and the other half will become hair-trigger bullying tattlers, reporting every kid who sticks out his tongue for fear of being sued by a victim’s family if an incident goes ignored.
  • It provides that, if an instance of bullying is confirmed, the school “shall” take prompt disciplinary action. This deprives school administrators of the ability to make sensible on-the-field judgment calls about whether a stern conversation, as opposed to a suspension, is more likely to produce good results.

(The portion that distresses Rep. Smith — a concluding line that says SB 764 is not “intended to infringe” on a student or employee’s right to free speech — is just that, a statement of intent. It does not provide any recourse for a wrongfully accused student to have bullying charges summarily dismissed.)

Smith’s House bill, HB 1214, has several distinct advantages.

First, unlike the Senate bill, it prohibits bullying by school employees as well as by students. That is valuable not just because it helps make school a less disempowering place, but also because it discourages school administrators from defining “bullying” overly broadly, since they’ll be forced to live by the standards they set.

It also imposes a higher threshold before speech becomes punishable as bullying. A student could be disciplined only if his speech would reasonably be expected to place a student in fear of harm to himself or his property.

Still, House Bill 1214 suffers from some of the same overzealousness as its Senate counterpart. It, too, would give school employees (including counselors) no discretion as to whether to accept a report of bullying confidentially. They must without exception tell the principal, and the principal must without exception tell the parents of “any student who is involved,” including both victim and harasser.

Both the House and Senate bills would remove the requirement in Louisiana’s existing bullying law that conduct must be “severe, persistent or pervasive” before it is punishable. That is a legal standard imported from harassment law — in order for harassing behavior to be unprotected by the First Amendment, it must be “severe” or “pervasive.” So Rep. Smith may have achieved her aspiration to unconstitutionality after all.

Louisiana’s session must end no later than June 4, so we will know within a week whether the state cautiously enacts a measured response to bullying, or hastily enacts a counterproductive one. It’s clear which side is winning.

As with many states, Louisiana is hurriedly making policy in response to a heart-tugging death (in this instance, the April 20 suicide of 17-year-old Tesa Middlebrook, a bright college-bound student from New Roads). The urge to do something — anything — to respond to such a terrible loss is entirely human. Grief is a powerful motivator. But grief can also be blinding. Legislation written in anger may be cathartic, but requiring principals to throw innocent kids out of school is an unworthy remembrance of Tesa Middlebrook and of the other bullying victims whose memory deserves better.