Free Speech, Privacy, and Federalism are Casualties as Obama Administration Exploits Bullying Issue

by Hans Bader on March 24, 2011

in Legal, Nanny State, Personal Liberty

The topic of bullying is in vogue, and President Obama is taking advantage of that: “President Barack Obama has acknowledged he was taunted as a child over his big ears and unusual name, as he opened a White House summit on preventing bullying” a few days ago. Meanwhile, administration officials are trying to stretch the federal law against sex discrimination, Title IX, to outlaw bullying aimed at gay and lesbian youth, although the Administration has no statutory basis for doing so.

In essence, as I explain over at Minding the Campus, they have invented a federal law against the bullying of gay youth, although Congress has yet to pass a ban on either homophobia or bullying. To do this, they have so stretched the definition of sexual harassment as to create a serious conflict with the First Amendment and federal court rulings, as I explain in greater detail at this link.

Federal law doesn’t ban bullying as such — that is a matter addressed by state law. All states ban assault and battery, and some states have laws specifically aimed at bullying in the schools.

If the federal government were to criminalize bullying in general, that would violate limits on federal power, and federalism principles. (The Supreme Court struck down the Gun-Free School Zones Act as beyond Congress’s power under the Interstate Commerce Clause in United States v. Lopez (1995), and it invalidated part of the Violence Against Women Act in United States v. Morrison (2000), in which the defendant was accused of committing rape in a student dormitory.)

If schools turn a blind eye to bullying based on race or sex, that can sometimes violate federal law by constituting racial or sexual harassment, under the Supreme Court’s ruling in Davis v. Monroe County Board of Education (1999) — but only if school officials are “deliberately indifferent” to its occurrence after having “actual knowledge” of it, and only if the bullying is both severe “and” pervasive.

In its zeal to invent a remedy for bullying of LGBT youth, the Obama administration has shredded each of these limits on school liability for harassment. It also says that schools must take “systemic” responses that harm innocent students, like putting the entire student body through sensitivity training in some cases where only a few students were proven to be perpetrators.

In her recent letter to school officials, Assistant Secretary for Civil Rights Russlynn Ali took aim at student speech that occurs entirely outside of school, arguing that sexual and racial harassment include speech, such as “graphic and written statements” on the “Internet” and elsewhere. “Education Department officials are threatening school principals with lawsuits if they fail to monitor and curb students’ lunchtime chat and evening Facebook time for expressing ideas and words that are deemed by Washington special-interest groups to be harassment of some students,” reports Neil Munro at the Daily Caller, in a recent news story, “Fed Instructs Teachers to Facebook Creep Students.”

This meddling beyond school boundaries raises serious questions of administrative overreaching and invasion of students’ personal lives.  The Education Department has little statutory basis for this meddling, since court rulings like Lam v. University of Missouri (1997) have typically rejected harassment claims against schools based on individuals’ conduct – even serious misconduct like “off-campus assaults”  – outside of school.

The Supreme Court’s Davis decision expressly based school officials’ liability in the fact that they have substantial control over students during school hours, and found the school district potentially liable only because “the misconduct” in that case had occurred “during school hours and on school grounds.”  It conditioned its ruling on the school district’s “custodial” and “tutelary” power over students during school hours, and expressly limited its “liability to circumstances wherein” the school district “exercises substantial control over both the harasser and the context in which the known harassment occurs.”

Schools lack such broad control over students’ speech outside of school, such as on Facebook or on the Internet. Moreover, 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.

Disclosure: (1) I once worked as an attorney for the Education Department’s Office for Civil Rights, which sent the very letter I criticize above; and (2) I was one of the attorneys for the prevailing defendant in a Supreme Court case I cite above, United States v. Morrison.

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