Kids in Iowa have a right to safe, nondiscriminatory school environments where their civil and constitutional rights are protected. Those rights include freedom of expression and due process. Bullying is a serious problem that warrants thoughtful action by schools and policymakers. But attempts to remedy bullying should not trample on the free speech of students.

Unfortunately, the proposed anti-bullying legislation that passed the Iowa Senate but was voted down in the Iowa House was deeply flawed. The provision that the ACLU of Iowa and other advocates for free speech find so troubling would expand the authority of schools to monitor, investigate, and ultimately impose punishment for constitutionally protected speech made outside of school hours, off school time, and in a variety of electronic and social media. Nothing in the bill’s language restrains a school’s ability to investigate and punish kids for the things they say and write at home with parents, over the summer at camp, in a church group, or while working at an afterschool job.

The ACLU of Iowa has suggested amendments that would better tailor the authority teachers and administrators to monitor speech made away from school. While the bill was voted down in the House, it could still pass through conference committee before the session ends. If that happens, legislators should insist on these five changes:

First, the bill should allow students and their parents to make complaints about bullying occurring away from school, but should not allow school employees or volunteers to trigger complaints unless the bullying occurs at school, a school event, or otherwise under the school’s authority. While school employees and volunteers should report and respond appropriately to bullying occurring under their supervision at school and at school events, they should not be incentivized or required to monitor student’s social media away from school to look for and report bullying. This change will prevent the schools from tasking school employees with the job of monitoring social media. Empowering schools to monitor and respond to bullying off school grounds and on social media by initiating a complaint will also have the likely effect of creating liability for schools when they fail to use that power to protect students under their supervision and care. Placing appropriate limits on who can initiate the formal process when it concerns speech made away from school protects not only the students’ from the chilling experience of routine monitoring of their private speech activities, it also protects schools from liability.

Second, the bill should be amended to make clear that the law is intended to protect students from bullying. There have been cases where students were punished for things they posted to Facebook or other online fora that was critical of teachers or administrators.  For example, this 12 year old was punished for “bullying” an adult hall monitor for posting on Facebook that the hall monitor had been mean to her. Any bill passed in Iowa should guard against that kind of overreach by school officials.

Third, durational limits must be added to the bill. The potential chilling effect of disciplining students for their speech away from school will be amplified the further in the past schools are authorized to look. To justify the investigation, the alleged bullying should be reasonably current, and not, for example, from a prior school year.  

Fourth, the language in the bill that specifically authorizes school personnel to refer alleged incidents of bullying or harassment occurring off school ground to “law enforcement agencies” must be deleted. The appropriate response to an alleged incident of bullying may or may not involve formal discipline, much less referral to law enforcement. The inclusion of that language perpetuates a punitive mindset in schools that is often very harmful to kids. We know that when school discipline is imposed, it is imposed more often and more harshly against students of color in Iowa. This is sometimes referred to as the school-to-prison pipeline. It’s important for the anti-bullying and anti-harassment bill not to become another tool for harsh school discipline that can be expected to have disparate racial impact.

And finally, the requirement that the alleged bullying has some nexus to the school environment must be strengthened in order to justify the school’s ability to investigate speech made out of school. The bill should make clear that schools only have the authority to investigate speech made outside of school when some component of the alleged bullying occurred at school or otherwise under the school’s authority.

The ACLU supports the important effort to reduce bullying in our schools. With the right amendments, the ACLU would not oppose the legislation considered this session, and will continue to work toward a safe school environment for all kids where their freedom of expression is championed.