Spring 2012 Constitutional Law II Exam: Freedom of Expression: Statute Prohibiting Bullying

Over the next few days I'll post the questions from my Spring 2012 Constitutional Law II exam. The first one up involves the constitutionality of a Connecticut statute requiring school districts to prohibit bullying at school. I added a criminal penalty and a couple of hypothetical fact situations. What do you think? May this law be constitutionally applied to the children in question?


Here's one of the questions I asked my students on a portion of the spring semester exam:

In the wake of a number of child suicides traced to bullying, the Connecticut State Legislature adopted a law prohibiting “bullying” of schoolchildren. 

For purposes of this section, "bullying" means any overt acts by a student or a group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school-sponsored activity or on a school bus, which acts are committed more than once against any student during the school year. [“Bullying” may also include] bullying outside of the school setting if it has a direct and negative impact on a student's academic performance or safety in school. 

The statute made “bullying” grounds for suspension or expulsion from school as well as a criminal misdemeanor juvenile offense.
 The law was applied in the following circumstances:
             1. For three days in a row seven fifth grade girls made a point of saying to another girl, whenever they saw her, “Nobody likes you, why don’t you just disappear.”
            2. A tenth-grade student regularly wore a tee shirt to school that had written on it, “Homosexuality is a sin.”
             Please analyze the constitutional issues that arise under the doctrine of Freedom of Expression.

My students had about a half-hour to answer this question, and it was worth about 17 points out of 100 on the exam. Feel free to take a stab at it. Tomorrow I'll summarize some of the constitutional issues that this question raises.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.