Washington considers bill that would allow schools to punish speech that causes 'emotional harm'

WASHINGTON — A bill that would update Washington’s anti-bullying statute to include online speech as well as speech that causes “emotional harm” has Senate approval and is being considered by the House.

Washington already requires schools to have anti-bullying policies. The bill would also mandate that school districts offer training classes for people who would act as the “primary contact” regarding harassment, bullying and cyberbullying.

“We do know that bullying is now 24/7,” said State Sen. Marko Liias, a Democrat supporting the bill, at a House committee hearing Thursday. “When you and I were at school, we got to go home and be at peace. Kids today, they don’t get to go home and be at peace, and we need to make sure our policies are embracing that.”

Proponents argue that the bill add protections for students who are bullied online, but critics say that “emotional harm” is too ambiguous a term for schools to adopt as policy.

“If you look hard enough, you usually see the root cause (of suicide) is some kind of emotional bullying, so I’m a big supporter of this concept. I’m a little worried, though,” said State Rep. Chad Magendanz, a Republican member of the House Education Committee considering the legislation. “Nowhere do we actually define emotional harm.”

Magendanz and others on the committee also expressed particular concern with the legal impact the legislation could have on school districts. To what degree, under the proposal, would schools be legally liable to enforce acts causing emotional harm? Several legislators brought concerns about a possible spike in lawsuits levied against schools.

State Rep. Mark Hargrove, a Republican, wondered if emotional harm was “an undefinable thing,” suggesting to Liias that “taking out those couple words” could remove problematic ambiguity from the legislation.

The Student Press Law Center submitted testimony to the bill’s public hearing Thursday, stressing that the proposal invites “tragic zero-tolerance overreactions” against students and invades their free-speech rights.

“If enacted as written, it will place Washington’s students at risk of punishment merely for day-to-day social frictions — what students call ’drama’ — or worse, for wholly innocent behavior that is misunderstood by adult listeners,” SPLC’s testimony said.

Democratic State Rep. Monica Stonier, the committee’s vice chairwoman, asked if there had been any discussion about further defining “emotional harm.” She said schools often look to dips in academic performance as indicators of bullying and suggested that method as a possible measurement of emotional harm, which Liias called a “creative” idea.

“I’m not a legal beagle, either,” Liias said. “I think we should figure this out.”

A taskforce of education experts came up with the new terms and made the call to add them to the legislation, Liias said.

“I struggle because I’m not the expert,” Liias said. “I’m not in the buildings and the classrooms. The folks that are said that this would be helpful, and that’s why I’m bringing this forward.”

Liias said that emotional harm and cyberbullying would not be criminal or civil offenses — this bill would simply require school districts to address them in their policies.

Marie Sullivan, government relations director for the Washington State School Directors’ Association, said her organization has submitted a “whole list of amendments” to the legislature. Her group is more concerned about extending the deadline for implementing updated policies and securing funding for training exercises for employees who would act as contacts for disciplinary procedures, but she said that “emotional harm” is broadly defined in the legislation.

“It will be very difficult to get to a consensus on how that would actually be applied when it gets into a district procedure,” she said.

The American Civil Liberties Union of Washington supports the bill “on balance,” said Linda Mangel, the organization’s education policy director. The ACLU has worked to ensure that First Amendment protections are addressed in the bill, she said.

“I understand why there would be a further effort to define it,” she said. “We think it’s fine. But if folks want to pursue a further refining of the definition, it’s not something we object to.”

Mangel also said she understands that there are “too many circumstances where schools are overreaching in instances of cyberbullying,” but Washington’s law would only enforce against it if occurred using school computers or equipment, on a school campus or if it “substantially interfered with the school environment.”

By Rex Santus, SPLC staff writer. Contact him by email or at (703) 807-1904 ext. 119.