Unconstitutionally Overbroad New Jersey Anti-Bullying Law Challenged; Reference To “Head Lice” Deemed “Bullying”

New Jersey’s anti-bullying law, which applies to the state’s schools and universities, is so overly broad that a fourth-grader was punished just for noting, in response to a question, that a classmate had suffered from head lice. A civil-liberties group called the Rutherford Institute is now representing that student in a First Amendment challenge to the law, notes the Newark Star-Ledger in an article titled, “Civil liberties organization asks federal court to declare NJ’s anti-bullying law unconstitutional.” Another civil-liberties group, FIRE, has also concluded that the law violates the First Amendment.

The Rutherford Institute explains:

Attorneys for The Rutherford Institute have asked a federal court to declare a New Jersey anti-bullying law unconstitutional in light of its chilling effect on students’ free speech rights. The Institute’s latest brief, which counters a move by the New Jersey Commissioner of Education to have the lawsuit dismissed, argues that the state’s enforcement of the anti-bullying act represents a violation of students’ rights under the First and Fourteenth Amendments to the U.S. Constitution and the New Jersey state constitution. Institute attorneys filed the First Amendment lawsuit in Lim v. Board of Education of the Borough of Tenafly in December 2013 on behalf of a 4th grade boy who was punished under the act for truthfully stating that a fellow student had head lice.

“What school officials conveniently seem to keep forgetting is that students do not shed their constitutional rights at the schoolhouse gate,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. . . Rutherford Institute attorneys argue that while the purpose of the law is admirable, the law’s scope is unconstitutionally broad and the language is too vague to give parents or students adequate notice about what statements will or will not be prohibited.

Highlighting the potential absurd applications of the law, Institute attorneys draw attention to an incident that took place in September 2011, when a 4th grade boy was punished under the act for correctly stating that a fellow student had head lice. A few days after a note was sent home to the parents of a class of 4th grade students, warning them that one of the students had head lice, several students were sitting at a group table completing an assignment together. During the discussion, one student asked a female student why she had dyed her hair. After she failed to respond to the question, one young boy, L.L., correctly replied that she had done so because she was the student who had head lice. The female student complained to the teacher who in turn instructed L.L. to apologize, and the class lesson continued uninterrupted. The teacher then reported the incident to the school’s “Anti-Bullying Specialist,” who filled out a bullying report and informed the Superintendent about the incident. As a result of the finding, the student was forced to undergo a special sensitivity assignment, and the entire class was reminded about the need to be kind to each other, which further embarrassed the fourth grader. L.L.’s parents appealed the bullying determination first with the local school board, and then with the state Board of Education, both of which affirmed the decision.

Arguing that the statute punishes any speech deemed “hurtful,” even if factually true and non-disruptive, attorneys for The Rutherford Institute filed a First Amendment lawsuit in federal court, asking that the statute be struck down, and that students like L.L. not be penalized in accordance with the statute for exercising their constitutional rights.

Earlier, I wrote about a disturbing ruling by a New Jersey trial judge that allowed parents to be sued for the speech of their children under both New Jersey’s unconstitutionally overbroad anti-bullying law, and New Jersey’s Law Against Discrimination, or LAD. (The LAD contains a prohibition on sexual, racial, and sexual-orientation harassment that has been interpreted in a breathtakingly broad fashion by the New Jersey Supreme Court in workplace cases like Taylor v. Metzger, so broadly that if that is applied in the educational setting, it will violate the First Amendment under the logic of school and college free-speech rulings in the Saxe, DeJohn, and McCauley cases decided by the Third Circuit, the federal appeals court with jurisdiction over New Jersey, Pennsylvania, and Delaware.)

Under the logic of that disturbing ruling in V.B. v. Flemington-Raritan, college students could be sued for constitutionally-protected speech, merely because thin-skinned classmates claim to be “bullied” or “harassed” by their criticism. As we noted earlier, 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.

As the Foundation for Individual Rights in Education notes,

While virtually all attention to the [New Jersey anti-bullying] law has focused on its impact on K-12 students, New Jersey’s Anti-Bullying Bill of Rights also requires colleges to prohibit “harassment, intimidation and bullying.” The law defines those terms so broadly as to include “a single incident” on campus that “substantially disrupts or interferes with the orderly operation of the institution or the rights of other students” and “has the effect of insulting or demeaning any student or group of students” or “will have the effect of physically or emotionally harming a student.”

Yet in Davis v. Monroe County Board of Education (1999), the Supreme Court of the United States defined peer-on-peer harassment in the educational context as unwelcome conduct directed at an individual that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” . . .

In contrast to the Davis standard, New Jersey’s law fails to define “emotional harm” and gives students no way to predict what fellow students will perceive as “emotional harm.” Such highly subjective terms effectively leave the state’s adult college students guessing at what speech is and is not outlawed on campus. That kind of uncertainty leads to a chilling effect on speech, as rational students decide to self-censor rather than risk punishment.

In addition, by prohibiting speech that “has the effect of insulting or demeaning any student or group of students” in such a way as to “substantially disrupt[] or interfere[] with the orderly operation of the institution,” New Jersey has in effect sanctioned the “heckler’s veto.” If the College Republicans were to stage a disruptive sit-in because the College Democrats had harshly criticized them for being Republicans, New Jersey’s law would subject the Democrats to punishment for the Republicans’ disruption. In other words, New Jersey has incentivized overreaction to any perceived insult, since the “victim’s” disruption of the orderly operation of the school automatically shifts the blame to the speaker.

The New Jersey law also is at odds with binding precedent from a federal appellate court. In DeJohn v. Temple University (2008), the United States Court of Appeals for the Third Circuit struck down Temple University’s restriction on “generalized sexist remarks and behavior,” holding that the policy “provides no shelter for core protected speech” and concluding that “[d]iscussion by adult students in a college classroom should not be restricted.” In McCauley v. University of the Virgin Islands (2010), the Third Circuit struck down the University of the Virgin Islands’ prohibition on conduct causing “emotional distress.” The court found the policy “entirely subjective” and noted that under this vague restriction, “[e]very time a student speaks, she risks causing another student emotional distress,” resulting in a “heavy weight” that does “substantial” damage to free speech on campus.

Even if New Jersey’s anti-bullying law only prohibited speech that schools could regulate in the K-12 setting, it would still be unconstitutional because it applies to colleges (where free speech is broader than in K-12 schools) and because not all K-12 student speech than can be banned by school officials under the Supreme Court’s Tinker decision can be criminalized by the legislature, or turned into a tort or statutory cause of action, for the reasons I explain at this link.