Do anti-bullying laws infringe upon students' First Amendment rights?

In the aftermath of a rash of LGBT teen suicides, states across the region have moved quickly to enact stricter anti-bullying laws. School officials, however, will have to remain wary of not treading on students' First Amendment rights when implementing these new regulations.

Pennsylvania lawmakers introduced a bill during their last session that would have extended anti-bullying protections to LGBT students, but the local Americans Civil Liberties Union chapter pulled their support due to a provision that sought to discipline students for their conduct outside the classroom. Andrew Hoover, legislative director of ACLU Pennsylvania, told EDGE parents and law enforcement officials-and not school administrators-should punish those who bully students outside the classroom.

"It's important to ensure that kids have protections from bullying in school-I think everybody understands that," said Hoover. "But it's also important for us at the ACLU to draw a balance to be sure that schools are not overstepping their bounds and they're not disciplining kids for activity that occurs outside of the school. Rather, that they give kids proper support-both kids that are victims of bullying and those that are bullies. We need to give them the support that they need to get through what they're dealing with."

Hoover added, however, schools have the right and obligation to mediate conversations between parents and students once they become aware of any incident of off-campus bullying. Lawmakers plan to introduce a revised version of the bill during the upcoming legislative session. And Hoover predicted it would most likely pass.

Former New York Gov. David Paterson signed his state's Dignity for All Students Act; which prohibits discrimination and harassment against all students in the state's public school system, including on the basis of sexual orientation and gender identity, into law in June.

The law, which goes into effect in July 2012, mandates teachers and staff receive bullying awareness training. And DASA also requires monitoring and reporting of bullying incidents.

Johanna Miller, public policy counsel of the New York Civil Liberties Union, said her organization is working closely with the state's Department of Education to make sure officials effectively implement DASA without infringing upon students' rights.

"In some ways, we have to tread lightly with anti-bullying legislation and that's part of the reason why we're trying to put together such a thoughtful implementation process," Miller told EDGE. "Students first amendment rights are important and, unfortunately, that includes their right to say things that aren't nice, particularly when they're not in school. At the same time if that's infringing on another student's rights to get the education they're entitled to then it's a serious problem. I think in some ways it goes back to the question of punishment-if the way we respond to these acts is by censoring and excluding students from schools then we are running against a student's First Amendment rights."

Under DASA, an employee from each school is required to attend an intensive training program and serve as an anti-bullying coordinator. While Miller said she realizes teachers already face a number of demands, she encouraged them to become familiar with recognizing what she described as low level bullying. Miller stressed when students feel comfortable in the classroom, it often alleviates many of the burdens placed on their teachers.

"I think it's unfortunate that there are so many adults who feel like bullying is part of growing up and I don't think that discriminating against your fellow students is part of growing up," she said. "I think we need to be cautious about our expectations of young people and not react by punishing them severely for what, in the long run, is young people making mistakes. But actually empower young people to understand why that kind of behavior is unacceptable in the school environment, particularly in a world where hate speech and hateful rhetoric is part of kids' everyday lives."

Across the Hudson River, New Jersey Gov. Chris Christie earlier this month signed into law what activists have described as the "toughest anti-bullying law in the nation." The Anti-Bullying Bill of Rights, which is a revision of the Garden State's 2002 anti-bullying law, gained momentum after Rutgers University freshman Tyler Clementi committed suicide last fall after his roommate allegedly posted a video of him having sex with another man on the Internet.

Carol Watchler, co-chair of Gay, lesbian and Straight Education Network's Central New Jersey chapter, said the new policy will make LGBT students feel welcome and less likely to commit self-destructive acts.

"For one thing, just when schools are able to articulate that-it lets young people know if they're questioning their sexuality that they are seen and part of the school community and have some protection," she told EDGE. "Another factor is to have an organization like a GSA that is students, gay and straight, working together to make the climate positive for all. If there's a group working on diversity within the school and are making sure everyone's welcome regardless of sexual orientation-that's a positive thing. That's a thing that's been shown with research to make a difference with students."

Hoover believes, however, LGBT youth will continue to feel subjugated until the law establishes equality in marriage, employment, and housing.

"LGBT people in Pennsylvania do not have equal rights," he said. "When their relationships are not recognized by the state it puts them in a position of second class citizenship and I think that has a negative impact on LGBT kids. There's this suggestion by the government and society that there's something wrong with being LGBT and that weighs on kids. Even though younger generations are becoming more accepting, you're still going to have folks in the broader community, unfortunately, who are not accepting."