Minnesota’s Anti-Bullying Statute: Weakest in the Nation, Slated for Revision

I’ve been saying it for a while now, but a new report by the U.S. Department of Education confirms that Minnesota’s anti-bullying statute is the weakest of the forty-six states it analyzed (four states, however, lacked state-wide polices altogether).  At a mere 37 words, it’s no secret that the law needs to be re-written.  As it stands, Minn. Stat. § 121A.0695 instructs local school boards to enact a written policy on bullying, but lacks any suggestions for what to include beyond the fact that electronic bullying should be considered in the policy.

Fortunately, this report, and a recent push by state Attorney General Lori Swanson to pass a revised version of the law that models its language on North Dakota’s, which was passed earlier this year with bi-partisan support and wide acclaim from anti-bullying watchdogs like http://www.bullypolice.org.  The proposed law provides model language and requires school districts to report bullying incidents and investigate them if/when it takes effect on January 1, 2013.  The law will also include mandates for reporting possibly criminal acts to law enforcement and preventing retaliation against those who report bullying.

This is clearly a great step in the right direction, but what troubles me is the proposal’s  lack of any mention of cyber-bullying and harassment through social media, online worlds or other Internet services.  The prevalence of this form of bullying is one of the main drivers in the movement against bullying, since kids don’t realize how harmful it can be to tease another person through the Internet.  Their still-developing brains can’t fathom how inescapably permanent and devastatingly public the mean things they say or do through the Internet can be.  Clearly, school districts and their administrators are ill-equipped to deal with acts that take place far beyond the four walls of the classroom or the school yard.  Some states have justified far-reaching policies on the grounds that outside behavior that affects other students’ school performance becomes the district’s business, but there are dangerous Constitutional waters.  A policy that polices what students can say to each other privately through email, text message or on non-public chat rooms could quickly run afoul of privacy and 1st Amendment concerns, even though students’ 1st Amendment free speech rights are far narrower than those of adults (see, e.g. Tinker v. Des Moines).

I’m glad to see that the problem is continuing to gather attention and that the states appear to be responding to growing national pressure.  It still seems to me, however, that a national law addressing cyber-bullying and online harassment needs to be considered because of the cross-border, decentralized nature of the Internet.  We continue to shoehorn state and local laws into online behavior with the incomprehensible philosophy that local laws should govern local actions.  That’s fine for real-world actions, but leaves far too much ambiguity when it comes to online behavior of this nature.  Would the district of the victim or the bully govern the punishment?  What about people from out of state?  What about behavior that starts at home and then resumes in school?  Is it a problem if a child doesn’t know what the policy is in the neighboring township or school when she posts derogatory remarks about another person?

As Bob Collins at Minnesota Public Radio’s News Cut blog noted, the first time the Minnesota legislature passed its bullying law, there was no debate and barely any public input.  I doubt that will be the case this time.  It’s a good thing.  Our children deserve a well-though-out policy that has a clear enforcement strategy and a welcoming demeanor. Let’s home they get it.

About Justin Kwong

An attorney in the Twin Cities and adjunct professor at William Mitchell College of Law where I teach a seminar on the law of virtual worlds.
This entry was posted in Legislation, Mobile Devices, Rights and Civil Liberties, Social Networks and tagged , , , , , , , . Bookmark the permalink.

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