Minnesota Bill to Ban K-12 Speech That Denies Fellow Students a “Supportive Environment”

That’s H.F. No. 826, which requires schools — including private schools that get any “public funds or other public resources” — to ban, among other things, “bullying” at school, defined as

use of one or a series of words, images, or actions, transmitted directly or indirectly between individuals or through technology, that a reasonable person knows or should know, under the circumstances, will have the effect of interfering with the ability of an individual, including a student who observes the conduct, to participate in a safe and supportive learning environment. Examples of bullying may include, but are not limited to, conduct that:

  1. places an individual in reasonable fear of harm to person or property, including through intimidation;
  2. has a detrimental effect on the physical, social, or emotional health of a student;
  3. interferes with a student’s educational performance or ability to participate in educational opportunities;
  4. encourages the deliberate exclusion of a student from a school service, activity, or privilege;
  5. creates or exacerbates a real or perceived imbalance of power between students;
  6. violates the reasonable expectation of privacy of one or more individuals; or
  7. relates to the actual or perceived race, ethnicity, color, creed, religion, national origin, immigration status, sex, age, marital status, familial status, socioeconomic status, physical appearance, sexual orientation, gender identity and expression, academic status, disability, or status with regard to public assistance, age, or any additional characteristic defined in chapter 363A of a person or of a person with whom that person associates, but the conduct does not rise to the level of harassment.

First, what does interfering with “the ability of an individual … to participate in a … supportive learning environment” mean, exactly? Say that students are talking over lunch about how a classmate committed a crime, cheated, said racist things, treated his girlfriend cruelly, or whatever else, which causes people to feel hostile towards the classmate. That interferes with his ability “to participate in a … supportive learning environment.” Presumably that’s now forbidden, right?

Second, what on earth does “creat[ing] or exacerbat[ing] a real or perceived imbalance of power between students” mean? What kind of power? Social power? Financial power? Power within student-run institutions, such as clubs or businesses that students set up?

Third, what does “violates the reasonable expectation of privacy of one or more individuals” mean? The disclosure of private facts tort doesn’t really tell us, because it is by design limited to speech said to a large group. Would a girl telling a friend that her ex-boyfriend has an STD violate the ex-boyfriend’s reasonable expectation of privacy? (What if the boyfriend is hitting on the friend?) Would revealing a secret qualify? Revealing an acquaintance’s religious or political beliefs, if the acquaintance views them as a private matter?

Fourth, “relates to the actual or perceived race, ethnicity, color, creed, religion, national origin, immigration status, sex, age, marital status, familial status, socioeconomic status, physical appearance, sexual orientation, gender identity and expression, academic status, disability, or status with regard to public assistance, [or] age … of a person or of a person with whom that person associates” would require restrictions on a vast range of speech.

Condemning illegal aliens, Scientologists, people who marry too young, people who are flunking out of school, or people who are on welfare would have to be forbidden as “bullying.” That’s true whether one says this about a student, about the students’ family members (“person[s] with whom that person associates”), or presumably about the group as a whole: After all, even a general condemnation of illegal aliens might interfere with the ability of an illegal alien student who “observes the conduct” to “participate in a … supportive learning environment.” (It’s not very supportive when people think that people like you should be deported, no matter how strong the case for deportation might be.)

Now public schools have broader authority to restrict student speech than does the government acting as sovereign. But even public schools’ authority is limited (see here for more details); and a public school policy that’s this broad would, I think, be unconstitutionally overbroad and thus invalid on its face, see, e.g., Saxe v. State College Area School Dist. (3d Cir. 2001) (Alito, J.). The government’s use of funds for private schools — even funds that amount to a small fraction of the school’s budget — as leverage to suppress a wide range of speech at those schools is even more constitutionally problematic, see FCC v. League of Women Voters (1984). And beyond that, the proposal’s overbreadth is bad policy as well as being unconstitutional.

For more on this topic, see my 2011 testimony before the U.S. Commission on Civil Rights about possible problems with restrictions on supposed “bullying” in K-12 schools.