Some anti-bullying policies disrespect free speech


By Mary C. Tillotson |

What happens when anti-bullying measures leave students feeling bullied?

The Rutherford Institute is suing education officials in New Jersey, alleging they infringed on a student’s free speech rights when he was accused of bullying another student.

WATCH WHAT YOU SAY: Though hardly anybody supports bullying, it’s important to remember the importance and purpose of free speech when crafting anti-bullying policies, First Amendment activists say.

The school nurse sent a letter to parents informing them a student had head lice. While fourth-grade students were working in small groups, one student asked a girl why she had dyed her hair. A third student, identified in the legal brief as “L.L.,” said the girl dyed her hair because she was the one with head lice.

The incident was reported to the school’s bullying specialist, who “launched a formal investigation and had L.L. removed from class so she could proceed to question him about the incident,” according to the Rutherford Institute’s brief. The specialist also interviewed other students and required L.L. to complete a sensitivity assignment.

The teacher then explained to the class why it was important to be nice, which embarrassed L.L.; his classmates knew his comment had spurred the additional instruction. L.L. was stigmatized as a bully, according to the brief.

“The kid didn’t know what was going on,” said John Whitehead, founder and president of the Rutherford Institute. “He wasn’t demeaning her intentionally. He knew what the facts were. He made a factual statement. Then the entire class was reminded of what the kid had done and looked at the kid like Dr. Evil.”

The lawsuit alleges the state statute is too broad to allow for constitutional rights outlined in the First Amendment.

“Our client, all this sensitivity training — he ended up worse than the girl that had the lice,” Whitehead said. “They have to think about what they’re doing to the kid who’s (allegedly bullying).”

The policy is too extreme for common sense, he said.

“I would put this in the category of political correctness gone crazy amuck,” he said. “They don’t take into account what it does to the student who is called a bully when he’s not a bully. What do you do, put tape over your mouth so you don’t make a mistake?”

Whitehead and Ken Paulson, president of the First Amendment Center, said policymakers need to remember the place and purpose of free speech when considering anti-bullying laws and policies.

“Public schools have a number of obligations, in terms of students they serve,” Paulson said. “They have to create a safe and secure learning environment, and that would mean shielding students from harassing behavior. But equally important is that they instill in young people an understanding of the core principles of the First Amendment and the importance of being able to share ideas freely. They’re not mutually exclusive.”

School leaders and policymakers should cultivate an environment in which students can express, discuss, disagree and debate ideas without being treated like criminals, Whitehead said.

Sensible anti-bullying policies should focus more on intent and less on the effect of a student’s remarks or behavior, he said. A student like L.L. cannot control the emotional effects his or her comments will have on other students, and may inadvertently offend someone without meaning to.

Good policy should also be clear about what behavior counts as bullying, they said.

“A good policy for public high school would be to express support for the free exchange of ideas, but make clear that speech that is substantially disruptive, threatening, or directly harassing can be punished,” Paulson said. “If you apply that standard, you go, OK, someone is saying this. Is it substantially disruptive? Not, ‘Does it make people feel uncomfortable?’ Not, ‘Did people disagree with it?’ But did it disrupt the operation of a school?”

For minor incidents, teachers could pull students aside and remind them to be courteous, without leaving a black mark on their permanent records, Whitehead said.

“We have a right,” Paulson said. “Students have a right to be free of harassment and bullying, but they don’t have a right to be free from exposure to ideas they’re uncomfortable with.”

The lawsuit is ongoing in federal court. The student’s parents are not commenting on the case.

Contact Mary C. Tillotson at