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Obama Administration Promotes Panic Over "Bullying" To Incite Attacks on Students' Rights and Well-Being

Obama administration officials call bullying an “epidemic” and a “pandemic.” But in reality, bullying and violence have steadily gone down in the nation’s schools, as studies funded by the Justice Department have shown.

 As the Associated Press noted in 2010, “There's been a sharp drop in the percentage of America's children being bullied or beaten up by their peers, according to a new national survey by experts . . . The study, funded by the U.S. Department of Justice, found that the percentage of children who reported being physically bullied over the past year had declined from nearly 22 percent in 2003 to under 15 percent in 2008.”

The myth that bullying has risen among girls was debunked in a 2010 New York Times column, “The Myth of Mean Girls.” As it noted, “this panic is a hoax. We have examined every major index of crime on which the authorities rely. None show a recent increase in girls’ violence; in fact, every reliable measure shows that violence by girls has been plummeting for years.”

If bullying has gone down, how can it be a pandemic?  By broadening the definition of bullying to include speech and vague power relationships.

The anti-bullying website nobully.com defines even “eye rolling” as bullying, so if you roll your eyes at a bully, you yourself can be accused of “bullying.” Its ridiculously-broad definition has been adopted by schools like Fox Hill and Alvarado Elementary, which define “eye rolling” and “staring” as “bullying.”  As a small middle-schooler, I rolled my eyes at bullies. A recent survey defined bullying to include “the use of one’s . . . popularity to . . . embarrass another person on purpose.”

A student can even be deemed guilty of "bullying" for not inviting a hostile classmate to her birthday party, since social “exclusion” is considered bullying (even though forcing children to invite unwanted guests to their birthday party can violate their right to free association). As a bullying victim noted in response to an article about such broad anti-bullying policies, “as someone who was frequently bullied as a youth, this policy would have required me to invite my own bullies to my birthday party. That sounds exceedingly miserable.”

Forty-five states “have laws requiring public schools to adopt anti-bullying policies,” but there’s no federal law against bullying, in general. That hasn’t stopped the Obama administration from trying to federalize anti-bullying policy. Its StopBullying.gov website defines “teasing” as a form of “bullying,” and “rude” or “hurtful” “text messages” as “cyberbullying.” Since “creating web sites” that “make fun of others” also is deemed “cyberbullying,” conservative websites that poke fun at the president are presumably guilty of cyberbullying under this strange definition. (Law professors like UCLA’s Eugene Volokh have criticized bills by liberal lawmakers like Congresswoman Linda Sanchez (D-Calif.) that would ban some criticism of politicians as cyberbullying.)

School bullying can only violate existing federal law if it involves racial or sexual harassment. Moreover, harassment by students violates federal law only if it’s condoned by school officials, and is severe and pervasive. In its 1999 decision in Davis v. Monroe County Board of Education, the Supreme Court ruled that schools can be sued “only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” As it emphasized, “Damages are not available for simple acts of teasing and name-calling,” nor are they available for even “severe one-on-one peer harassment” if it occurs just a “single” time.

Thus, federal law does not ban most bullying.

To be actionable, harassment in school must be both severe “and” pervasive, rather than just severe “or” pervasive, unlike in the workplace. This limit on liability may have been a response to Justice Kennedy’s dissent, which noted that court rulings had cited the First Amendment to strike down campus harassment codes modeled on workplace harassment laws. 

Federal civil-rights laws do not ban sexual-orientation discrimination. By contrast, most school districts do prohibit anti-gay harassment. Many states and municipalities do have gay-rights laws banning sexual-orientation harassment, and most states have hate-crimes laws that cover gays more broadly than federal law.

Despite the fact that federal law does not prohibit anti-gay harassment, the Obama administration has told the nation’s school officials that they may be liable for bullying, including anti-gay bullying. In an October 2010 letter, the Education Department told the nation’s school officials to take “steps to reduce bullying in schools,” saying that some bullying “may trigger responsibilities” under federal laws “enforced by the Department’s Office for Civil Rights.” Contrary to the Supreme Court’s Davis decision, the letter told schools that conduct “does not have to . . . involve repeated incidents” to be illegal, and need not be “severe” as long as it is “pervasive or persistent.”

The letter falsely suggested that anti-gay harassment is usually discrimination based on sex. It cited as illegal “gender-based harassment” a case in which “a gay high school student was called names.” By contrast, court rulings have often dismissed lawsuits over homophobic sexual harassment in cases like Wolfe v. Fayetteville School District, Simonton v. Runyon, Higgins v. New Balance, and Schroeder v. Hamilton School District. (Admittedly, a minority of courts, like the liberal Ninth Circuit, have managed to effectively equate most forms of sexual-orientation harassment with gender-based harassment.)

The Education Department’s letter was interpreted by some news reports as saying federal law already bans bullying in general, and anti-gay harassment. “The Department of Education states that federal education anti-discrimination laws provide protection against harassment of gay and lesbian students,” noted an approving commentary at the liberal American Constitution Society.

The Education Department also took aim at student speech outside of schools, such as “graphic and written statements” on the “Internet.” It did so even though the Supreme Court’s Davis decision based liability on the fact that the school had  “custodial” power over students at school, and “the misconduct” occurred “during school hours and on school grounds.” It did so even though cases like Lam v. University of Missouri rejected lawsuits over off-campus conduct.

The anti-bullying panic has enriched high-paid consultants. After New Jersey passed an anti-bullying law, hundreds of schools “snapped up a $1,295 package put together by a consulting firm that includes a 100-page manual.”

Federalizing bullying would harm civil liberties and falsely accused people. The Education Department has already argued that the existence of a federal law banning sexual harassment overrides traditional protections in school disciplinary proceedings for students accused of harassment, protections like the clear-and-convincing evidence standard most colleges once used. It has also argued that students should not be allowed to cross-examine their accusers, and that colleges should investigate based on anonymous allegations. It took those positions in a 2011 letter that I criticized as legally-unfounded in The Washington Examiner. (I once worked as an attorney in the Education Department's Office for Civil Rights).  Under federal pressure, many colleges recently reduced safeguards against false allegations.

Banning all eye-rolling as “bullying” violates the First Amendment under the Third Circuit Court of Appeals’ decision in Saxe v. State College Area School District, which invalidated a harassment code that banned isolated instances of hostile speech, holding that even a hostile “purpose” is not always reason enough to ban speech that is neither lewd nor disruptive.

And banning all teasing is harmful, 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.”

Some anti-violence activists criticize the current panic over bullying, and say it diverts attention away from more serious safety issues. “Teasing and bullying aren’t an issue in our community. Youths killing and maiming other youths is,” said Ron Moten, co-founder of the anti-youth-violence group Peaceoholics. “The new movement is not about children. It’s about politics.” Besides, Mr. Moten said, schools can’t “police everything a kid says.”

Legal mandates imposed on schools in the name of preventing bullying can have bad consequences for child development. As a school administrator noted after passage of New Jersey’s sweeping 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.”