A First Amendment Deference Approach for Reforming Anti-Bullying Laws

This Article examines the anti-bullying laws and their response to the problem of bullying in light of both the nature of the problem itself, the interventions the laws call for, and the laws’ First Amendment implications. Bullying has many varied, negative consequences, some tragic, and is widespread. Yet, the anti-bullying laws disproportionately focus schools’ responses to bullying on school exclusion, meaning suspending, expelling or otherwise excluding students who bully from school. This is so even though social science literature has found school exclusion ineffective and sometimes counterproductive as a method for addressing bullying. What is more, because much of bullying is speech, bullying interventions often implicate the First Amendment. Although the Supreme Court has given schools more deference—or effectively more authority—to suppress student speech as compared to other state actors, that deference is not unlimited and sometimes it arguably precludes any response to individual instances of bullying, no matter its efficacy. The anti-bullying laws then are at times either limited by the First Amendment to the point of being inapplicable, and even when they can be applied address bullying, they focus on a one-size-fits-all school exclusion approach. Drawing on all of these points, this Article thus argues that the anti-bullying laws represent a limited response to the complicated problem of bullying that raise a number of First Amendment concerns despite the deference the Supreme Court has given schools to suppress student speech. It also argues that drawing on First Amendment jurisprudence, particularly by deconstructing the rationales for schools’ deference to suppress student speech and crafting bullying laws in a way that closely aligns with those rationales, offers both a way for the anti-bullying laws to both better respond to the problem of bullying and an argument that schools should have more deference to suppress student bullying speech. So changing the anti-bulling laws and providing schools with more deference to suppress student bullying speech would help resolve some of the extant First Amendment problems with the anti-bullying laws. Perhaps most importantly, it would help the students who suffer the negative, sometimes devastating, consequences of bullying