Erin Fleury, MJLST Staff
Bullying in schools is an age-old problem; the effects of which have been exacerbated by society’s increasing use of technology, especially social media. Minnesota has minimal legislation when it comes to bullying and although it does include cyberbullying, many argue that the state should do more to enable schools to crack down on bullying in general.
A University of Minnesota Law School student, Bryan Morben, recently wrote an excellent Note regarding cyberbullying in which he highlighted a bill that was working its way through Minnesota’s legislature. At the time his article was published, the bill had been passed by the House but was “effectively kill[ed]” by the Senate. Supporters were hopeful that it would be revived during the current legislative session, however, and on March 12 the Senate’s education committee recommended the passage of an amended version of the bill that was passed by the House last year.
Mr. Morben’s article suggests that the House bill would not be defective for being vague or overbroad but it seems as though the bill could actually be criticized because it may encompass behavior outside the scope of what the legislature is aiming to prevent. For example, the House bill may include conduct that would not be considered bullying by any common-sense definition but is merely distracting to the learning process. The bill defines bullying as “the use of … words, images, or actions … that a reasonable person knows or should know … will have the effect of materially interfering with the ability of an individual … to participate in a safe and supportive learning environment.” After the definition, an example is listed which states that bullying would include conduct that “interferes with a student’s educational performance or ability to participate in educational opportunities.” A ‘class clown’ who routinely interrupts the teacher and distracts other students would reasonably know that such behavior is interfering with the ability to participate in a supportive learning environment, yet that type of behavior should not necessarily be considered bullying since it does not have the same type of negative consequences on students. Yet the language may create authority for teachers to crack down on other types of disruptive behavior because of the potential broadness.
Furthermore, the bill imputes a reasonable person standard on the requirement that the bully know that they will materially interfere with the other individual, but there is no reasonable or objective standard in regards to what actually is a material interference. For example, if one student would unreasonably react to another student disagreeing with them in class in such a way that it “has a detrimental effect on [their] physical, social, or emotional … health” then that would still be considered bullying even though the unreasonableness was on the part of the bullied rather than the bully. While these arguments may be stretching the meaning of the bill (and there are certainly strong arguments for interpreting the bill more narrowly), the House’s proposed definition certainly seems to create ambiguity that could lead to serious concerns about the scope or even constitutionality of the law.
The Senate’s amended bill, on the other hand, remedies these defects by requiring that all bullying conduct be “objectively offensive.” It also requires more from the offensive activity than any word, images, or actions by only applying to “intimidating, threatening, abusive, or harming conduct.” What constitutes such conduct is further defined with the examples of “causing physical harm [or reasonable fear thereof] to a student or a student’s property … violates a student’s reasonable expectation of privacy, defames a student, … constitutes intentional infliction of emotional distress … [or] is directed at a student based on [a number of personal characteristics].” Unlike the House’s bill, every example requires some form of objective or reasonableness requirement. While the definition itself explains that these examples are not all-inclusive, they do seem to point much more directly at bullying actions rather than other types of disruptive behavior. In this regard, the Senate proposal seems like a stronger piece of legislation because not only is it less likely to be contested on legal grounds, but its scope is also better targeted at the specific problem Minnesota is trying to address.
So far the amended bill has only been put forward by committees and not voted on by the entire Senate but it will be interesting to keep any eye on any future revisions and to see what version, if any, might be enacted into law.
