Earlier, we wrote about a Wisconsin town whose ordinance holds parents liable for bullying by their children, including certain speech. We and law professor Eugene Volokh noted that this raised serious First Amendment issues. Now, a New Jersey judge has done the same thing by judicial construction, by allowing New Jersey school districts to drag students and their parents into lawsuits brought against school districts by alleged victims of bullying or discriminatory harassment. (New Jersey’s anti-bullying law is so broad that it violates the First Amendment by banning non-violent speech, notes the civil-liberties group Foundation for Individual Rights in Education.)
On March 12, a New Jersey Superior Court Judge ruled in V.B. v. Flemington-Raritan Regional School District that that school district, and the Hunterdon Central Regional High School, “could name 13 students and their parents as third-party defendants in a bullying suit,” dragging them into a lawsuit against the school districts, and potentially forcing them to share the massive cost of paying any damages awarded by a judge or jury against the school district. Judge Yolanda Ciccone allowed the parents to be sued based on conduct and offensive comments both in school (where teachers and schools officials, not parents, were in charge) and outside of school. She based this ruling partly on speech that is protected by the First Amendment outside the schoolhouse, such as unkind remarks on Facebook, writing that “Plaintiff’s complaint includes several allegations of that acts of bullying and harassment took place on Facebook, and that plaintiff had to contact Facebook directly to have to [sic] offending statements removed.”
Never mind that federal judges have ruled that the First Amendment applies with added force to students’ speech outside of school, meaning that vulgar speech that is banned in school may be protected speech when it occurs away from school, as cases like Klein v. Smith (1986) illustrate. Similarly, the federal appeals court with jurisdiction over New Jersey has issued two First Amendment rulings in favor of students disciplined for creating fake web profiles lampooning their principals, holding that the speech was protected outside of school even if it would be unprotected in school, in Layshock v. Hermitage School District (2010) and J.S. v. Blue Mountain School District (2011).
The New Jersey state judge, by contrast, allowed all of these students and their parents to be sued over the students’ alleged contribution to a “hostile learning environment,” including student K.I., who was sued even though “there were no allegations against him after the 2007-08 school year,” because other students harassed the plaintiff student for years thereafter, causing a hostile environment to develop for reasons largely unrelated to K.I. (The court did not merely cite offensive speech in allowing the bullying suit to go forward, but also cited obnoxious conduct totally unprotected by the First Amendment, such as a bully throwing things at the plaintiff. However, this does not make the First Amendment problem go away, because a damage award cannot be based even in part on protected speech, as the Supreme Court’s decisions in Street v. New York and NAACP v. Claiborne Hardware Co. make clear.)
In practice, New Jersey’s Law Against Discrimination restricts more speech as sexual, sexual-orientation, or racial ”harassment” than any other state or federal antidiscrimination law in America, creating a looming conflict with the First Amendment. New Jersey state court decisions like Taylor v. Metzger (1995) have sometimes allowed plaintiffs to sue for racial or sexual harassment under state law based on a single offensive utterance; by contrast, the U.S. Supreme Court has dismissed such claims as not rising to the level of harassment under federal law in cases like Clark County School District v. Breeden (2001).
Ironically, the federal appeals court in New Jersey (the Third Circuit) has struck down campus sexual, racial, and sexual-orientation harassment codes that restricted speech, even when those codes were effectively much narrower than the ban on “harassing” speech contained in New Jersey’s Law Against Discrimination, in cases like DeJohn v. Temple University (2008) and Saxe v. State College Area School District (2001). Similarly, citing potential First Amendment problems, the Fifth Circuit Court of Appeals in Texas has rejected harassment claims over sporadic offensive speech that would probably succeed in New Jersey, in its DeAngelis and Weller decisions. The Ninth Circuit rejected a racial harassment lawsuit against a professor over racially-charged anti-immigration emails, ruling that allowing a college’s Hispanic employees to sue over them would violate the First Amendment, in Rodriguez v. Maricopa Community College (2010).
Under New Jersey state law, unlike federal law, verbal or physical harassment in school apparently does not need to be both severe and pervasive for liability. Moreover, schools, not just employers, are apparently liable for mere negligence in failing to stop harassment, judging from the New Jersey Supreme Court’s decision in L.W. v. Toms River Regional Schools (unlike under federal law, where a student suing for damages has to show not just negligence but “deliberate indifference” under the Supreme Court’s Gebser and Davis decisions; and also has to show that the speech or conduct sued over was severe and pervasive enough to interfere with their education).
Damage awards for sexual or racial “harassment” under the New Jersey Law Against Discrimination sometimes exceed a million dollars, and in addition, if the plaintiff wins, he can recover up to 1.5 times his actual attorneys fees under the state supreme court’s decision in Rendine v. Pantzer (1995). (The defendants, by contrast, don’t recover a dime in attorneys fees even if they prove themselves innocent.) Such legal asymmetries can create a massive bias in favor of plaintiffs, that drives frightened employers and school officials to restrict even protected speech as “harassment” to avoid the specter of liability. As Justice Breyer once noted in urging the Supreme Court to decide the Nike v. Kasky case on the merits, sweeping liability rules can make even otherwise constitutional laws, like false-advertising bans, violative of the First Amendment). Even federal “hostile environment” harassment law, which is narrower in practice than New Jersey state law, has expanded over the years to the point where it reaches a wide array of offensive speech in the workplace. Law professor Eugene Volokh gives examples here. I discuss the subject here and here.
After New Jersey passed its broad anti-bullying law, hundreds of schools “snapped up a $1,295 package put together by a consulting firm that includes a 100-page manual.” But a University of Texas researcher found that anti-bullying programs increase bullying, and “actually teach students different bullying techniques — and even educate about new ways to bully” classmates. Activists claim bullying is an “epidemic” and a “pandemic.” But in reality, bullying and violence have steadily gone down in the nation’s schools, especially before the current “anti-bullying” crusade.
Overly broad anti-bullying rules can damage children emotionally. As a school administrator noted after passage of New Jersey’s bureaucratically rigid anti-bullying law, “The anti-bullying law also may not be appropriate for our youngest students, such as kindergartners who are just learning how to socialize with their peers. Previously, name-calling or shoving on the playground could be handled on the spot as a teachable moment, with the teacher reinforcing the appropriate behavior. That’s no longer the case. Now it has to be documented, reviewed and resolved by everyone from the teacher to the anti-bullying specialist, principal, superintendent and local board of education.”
Expansive definitions of bullying, such as defining all teasing as bullying, are harmful to children. Equating “teasing” with bullying is a bad idea, according to psychologist Dacher Keltner, who noted in The New York Times that teasing is educational for children and teaches them “the wisdom of laughing at ourselves, and not taking the self too seriously.”
The term “bullying” is increasingly being used as an excuse for censorship of speech protected by the First Amendment, such as anti-abortion advocacy, publicly revealing the names of students who vandalized a pro-life exhibit, student newspaper editorials criticizing gay marriage, and criticism of shoddy academic research on subjects like the history of firearms.
I just wanted to clarify four things in my commentary above, especially for the benefit of non-lawyers:
1. No one raised a First Amendment defense in the lawsuit I described above, so that issue has technically not been decided, and the students and their parents are thus not foreclosed from raising a First Amendment defense for any taunts, ridicule or insults that were non-violent and constitutionally protected (such as outside of school). As the Supreme Court observed in Waters v. Churchill (1994), “cases cannot be read as foreclosing an argument that they never dealt with.”
2. The judge's ruling was on a pre-trial motion to dismiss, and did not find the students and their parents liable, only that they could potentially be liable, and certain assumptions undergirded the judge’s ruling that may be questioned later in the litigation. As the judge herself noted, even the school officials’ liability was not proven yet.
3. The fact the school officials have a proprietary (or tutelary) power to restrict certain student speech hardly means that the government can criminalize or create tort liability for all such speech, since the government's power to restrict speech as a sovereign is narrower than its power to restrict speech in its proprietary or tutelary capacity, as I explain at this link:
So even if all the students could have been disciplined by school officials for all the speech, insults, and ridicule at issue in the lawsuit (even outside of school), it does not follow that their parents can be forced to pay damages for such speech or insults, and indeed, that can violate the First Amendment.
4. I noted above that discriminatory harassment has to be both severe AND pervasive to violate federal law. I discuss this at length, with hyperlinks to court decisions, at this link: