MASSACHUSETTS — Massachusetts Gov. Deval Patrick signed the state’s anti-bullying bill into law on Monday in an effort to keep students safe in schools, but language in the new law has the potential to chill students’ constitutionally protected free speech.
The law mandates school employees to report all instances of bullying and requires principals to investigate the reports. The law also requires every student from kindergarten through 12th grade to participate in an annual anti-bullying curriculum. The push for the anti-bullying law began after two Massachusetts students hanged themselves after being bullied at their respective schools.
The law defines bullying as “the severe or repeated use by one of more students of a written, verbal or electronic expression, or a physical act or gesture or any combination thereof, directed at another student that has the effect of: causing physical or emotional harm to the other student or damage to the other student’s property; placing the other student in reasonable fear of harm to himself or to his property; creating a hostile environment at school for the other student; infringing on the rights of the other student at school; or materially and substantially disrupting the education process or the orderly operation of a school.”
“Cyber-bullying” is included in the law and is classified as bullying through the use of technology or any electronic means.
Tuesday, The Boston Globe reported a number of civil rights lawyers and plaintiffs’ attorneys across the country and in Massachusetts say the new law may limit students’ free speech.
Christopher Ott, communications manager of the Massachusetts American Civil Liberties Union, said the ACLU is concerned that the law has an overly broad definition of bullying.
“Under this definition of bullying, for example, if a child twice calls another student a name like ‘loser,’ and hurts that student’s feelings, that can be identified as bullying and set in motion a whole host of mandatory actions. [There could be] a pretty severe chain of events from something that might not be a particularly serious issue. Obviously, if someone is being harassed or stalked or something like that, that’s not something you want to take lightly. The concern here is that this is so broad that it pulls under the umbrella these really common things that kids do,” Ott said.
Ott is also concerned that the law does not have any protections, nor an objective reasonable person standard built into it.
“[It] prohibits actions that cause physical or emotional harm. The question is, whose definition of that are you using? It’s another thing that is vague about this legislation and could potentially be applied broadly,” Ott said.
“Some individuals called into question whether or not this would have any impact on the First Amendment rights of students, and clearly that was not anyone’s intention. We will work into the guidance for schools about how they should handle the law — specifically about how instances should be managed. Our thought right now is that it’s going to have to be on a case-by-case basis,” said Jonathan Palumbo, communications director for the Massachusetts Executive Office of Education. The Senate Joint Committee on Education introduced the bill in March.
Executive Director of the Student Press Law Center, Frank LoMonte said that it is certainly possible to develop an anti-bullying law that both punishes bullying and protects journalistic speech.
“It would be much preferable if the burden is on the state to show wrongful intent on the part of the student. Right now it’s possible for a student to be guilty of student of bullying if their conduct does emotional harm even if there was no intent to harm. Any time you talk about punishing conduct that does emotional harm, you run the risk of punishing editorial speech that is upsetting or disturbing.” LoMonte said.