Schools Use “Bullying” as a Pretext to Violate Students’ Rights to Free Association and Freedom of Speech

In a small but growing number of schools, you have to invite all the kids in your child’s class to her birthday party, even if your child doesn’t want to invite them. For example, the student handbook of the John F. Kennedy Elementary School in West Berlin, New Jersey makes this demand: “If a student is inviting his/her classmates to a party, he/she must invite all of the students in the class or all of the female students or all of the male students. When invitations are given in school, students may not arbitrarily invite or exclude classmates from parties.”  These mandates may make sense to wealthy, privileged liberals with big houses, who don’t realize that a parent with a small house could not accommodate the entire class or even half of it. But there is no way I could accommodate more than a few kids at my daughter’s birthday party, since I live in a little two-bedroom house.

Many of these bossy rules dictating who kids can invite to their own birthday parties are based on the weird idea that inviting only popular children is a form of bullying.  Using politically-correct psychobabble about “power relationships,” some psychologists have sought to redefine bullying to include wielding “popularity,” not just violence.  For example, a recent survey by a clinical psychologist at the University of Virginia, Dewey Cornell, defined bullying as “the use of one’s strength or popularity to injure, threaten or embarrass another person on purpose,” and defined it to include “verbal” or “social” behavior, not just “physical” assaults and intimidation.  So if you are “embarrassed” by a “popular” person you can accuse them of bullying. Still worse is the web site, which defines even “eye rolling” as a form of bullying, so if you roll your eyes at a jerk, they can accuse you of “bullying.”  As someone who experienced real, violent bullying as a child, I think these overbroad definitions of bullying trivialize actual bullying.

This mindset is typical of the current Administration, which issued a letter to school officials in October 2010 that falsely implied that bullying is already banned by federal law (contrary to federal court rulings), and defined bullying in ways that would violate free speech and disregard basic principles of federalism.

Trying to regulate who parents invite into their own homes violates their freedom of association.  The courts have accorded fairly little protection to students’ freedom of association in school, but these mandates are so unreasonably intrusive that they may violate even the limited First Amendment protections recognized by the courts.  (Non-political, non-expressive freedom of association has fairly limited protection, but it still has some protection.  For example, the California Court of Appeal held that Boy Scout packs were protected against forced acceptance of unwanted members by the Constitutional freedom of intimate association in Curran v. Mount Diablo Council of Boy Scouts of America (1994).  And the U.S. Court of Appeals for the Fifth Circuit held that a city could not use an anti-discrimination ordinance to regulate the membership of truly private clubs in Louisiana Debating and Literary Association v. City of New Orleans (1994), since that violated freedom of intimate association.  Dating relationships were also held to be protected by freedom of intimate association in Wilson v. Taylor (1984).  Courts have held that schools have less control over students outside school boundaries in cases like Klein v. Smith (1986)).

To the extent that school officials attempt to define speech as “bullying” merely because it “embarrasses” a less popular student, that violates students’ recognized First Amendment rights, especially in the college setting. Even speech by children that has a hostile ‘purpose’ is generally protected as long as it is not severe, lewd, or disruptive, as a federal appeals court noted in striking down a school’s anti-harassment policy in Saxe v. State College Area School District (2001).  Colleges can’t apply anti-violence policies to speech that merely embarrasses people or depicts them in a negative light, as the U.S. Court of Appeals for the Ninth Circuit noted in Bauer v. Sampson (2001), which held that a college professor’s caricatures of a college president and satirical yearning for his death were protected by the First Amendment.  Similarly, the Ninth Circuit held that the First Amendment protected a professor from being sued for racial harassment for his racially-charged emails about immigration, which offended Hispanic faculty, in Rodriguez v. Maricopa Community College District (2010).  Labels like “bullying” and “harassment” do not make otherwise constitutionally-protected speech lose its protection.

When space in a home is scarce, or parents are too poor to invite all classmates, it only makes sense for them to invite only those students who are popular with the child.  I was not a very popular child, because I was shy and tended to clam up around non-family members.  So I wasn’t invited to that many birthday parties, for good reason: I wouldn’t have added much to the party (and wouldn’t even have enjoyed the party that much, if I barely knew the kid having the birthday — I might have preferred to stay home and read a book).  By contrast, my daughter gets invited to parties, probably because she is outgoing and talkative and likes interacting with new people, including strangers.  It makes no sense to  force parents to invite relatively unpopular children (like myself as a child), rather than relatively popular children (like my daughter). Doing so results in a less lively party. It also discourages parents of modest means from even holding birthday parties open to classmates, since if they accommodate anyone, they must accommodate everyone.

“Bullying” is also being used as an excuse for serious academic misconduct as people claim that whistleblowing is “bullying” of the wrongdoer.  When fabrications about the history of firearms by liberal historian Michael Bellesiles were exposed by multiple historians from across the political spectrum, resulting in his forced resignation from his position for academic fraud,  a leading “anti-bullying” expert in Connecticut got him a new job at her university, claiming that he “was the victim of a “mobbing” campaign by the historians, which is “basically a situation in which more than one person engages [in] abusive conduct or bullying.”  The eminent historians who had the temerity to point out the fraud — at least one of whom openly shared Bellesiles’ point of view about gun control — were also ludicrously accused of “swift-boating” him, even though the evidence that he engaged in fraud was unimpeachable, and the distinguished historians who found him guilty of unprofessional and misleading work were appointed by his own university to perform the inquiry that led to these findings.

Broad definitions of “cyber-bullying” have become an excuse for silencing online critics.

Trial lawyers also are beginning to use the label of “bullying” against journalists, legal commentators, and bloggers.  When a wealthy trial lawyer brought a defamation lawsuit against a law blogger (after his prior lawsuit against the blogger had already been thrown out by a judge), he claimed that the blog, and the web site of a California-based magazine, were “internet bullying” sites.

In court cases, psychologists hired as expert witnesses have increasingly made dubious psychological diagnoses at the behest of trial lawyers, including the highly-publicized example of Stuart Greenberg, who rose to the pinnacle of the psychological profession before his egregious misconduct (and destruction of countless lives) was exposed.