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Navigating the Nuances of Bullying Laws

The First Amendment rights of bullies, as well as adequate protections for victims, are at the heart of a raging debate about how to maintain constitutionally sound policy while also keeping children safe.

Bullyproof, a public service project sponsored through the American Bar Association Young Lawyers Division, aims to provide legal advice and information about how to combat bullying and provide resources to parents, students and educators they could use to better understand the legal nuances of bullying.

A March webinar called “Introduction to Legal Issues Related to Bullying: Practical Tips from Those on the Front Lines,” was also offered and featured a panel of experts who personally faced the challenges of bullying. Ted Farley, executive director of the It Gets Better Project, said judges and lawyers see only a small portion of bullying cases and most are unreported for fear of retaliation, according to information provided by the ABA.

“As a community, our responsibility is to look out for those types of situations and try to create school environments in which those who could perhaps be bullied for any reason feel empowered to come forward and to talk about it,” he said.

He encouraged a strong focus on community and said gay-straight alliances have been an effective measure to curb bullying. He also discouraged the use of zero-tolerance policies because they can often have the adverse effect of punishing a victim who decides to finally stand-up to a bully.

Judge Lee Bussart Bowles of the Tennessee General Sessions Court dove into the legal differences between “harassment” and “bullying,” with the former directed at some particular characteristic of the victim, such as race, sex, national origin and disability, which are protected under federal law, according to information from the ABA.

“There’s a lot of bullying situations that aren’t going to fall into these categories,” Bowles said in a statement. “Harassment’s a very narrow definition when you look at what is truly protected under these federal laws. We have a lot of what some might consider nastiness, rudeness, unkindness that would not fall under these protections.”

Bowles said bullying has a broader definition. It generally features aggressive and repetitious behavior and a difference in power between the target and bully. Laws vary in scope, with some requiring schools adopt an anti-bullying policy, Bowles said, however, some states extend their laws to off-campus activities, like cyber bullying. She said, though, anti-bullying laws are usually vague and ineffective.

“I’m not sure that the law can provide an adequate remedy,” Bowles said. “Certainly the law has a place, but this really is a social issue that is going to require a change in how we view the issue.”

Legal proceedings dealing with bullying highlight the difficulty in finding the appropriate scope of statue. A case stemming from December has recently made headlines due to a new round of filings.

The Rutherford Institute is arguing a student’s First and Fourteenth Amendment rights were violated due to punishment handed down by school administrators for “truthfully stating that a fellow student had head lice,” according to information from the Rutherford Institute.

The case, Lim v. Board of Education of the Borough of Tenafly, deals with a fourth-grader in New Jersey who told classmates a girl dyed her hair because she had lice. The New Jersey Commission of Education recently asked for a dismissal and Rutherford Attorneys countered with a brief enumerating why the applicable New Jersey anti-bullying law, one of the country’s strongest, is unconstitutional.

“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. “While we all want our schools to be safe, nurturing environments for our children, anti-bullying statutes—well-meaning as they may start out—are Orwellian in nature and inevitably run afoul of the Constitution’s protections for free speech and expression.”

Dan Sabbatino is an award winning journalist whose accolades include a New York Press Association award for a series of articles he wrote dealing with a small upstate town’s battle over the implications of letting a “big-box” retailer locate within its borders. He has worked as a reporter and editor since 2007 primarily covering state and local politics for a number off publications.

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