December 1, 2021
December 1, 2021 (BOSTON, MA)—Yesterday, the U.S. Court of Appeals for the First Circuit issued a ruling affirming the inclusion of “emotional harm” in the definition of bullying in Massachusetts’ anti-bullying law. The ruling in Doe v. Hopkinton Public Schools preserves important statutory protections for addressing one of the principal effects of bullying: the long-term psychological damage that occurs in youth who have been on the receiving end of bullying behavior—particularly LGBTQ+ youth and other stigmatized groups—from their classmates.
“Speech or conduct that actively and pervasively encourages bullying by others or fosters an environment in which bullying is acceptable and actually occurs—as in this case—is not protected under the First Amendment,” the court stated.
“We applaud the First Circuit Court of Appeals for affirming a critical protection in our state’s anti-bullying law: students who engage in bullying—and schools that overlook it—can be held accountable for the damaging mental health effects their behavior causes,” said Polly Crozier, Senior Staff Attorney at GLAD. “This law is an effective tool to create safe, inclusive school environments for all students but only if fully implemented and enforced. This ruling is a call to action for school districts across Massachusetts to ensure that parents, students, and staff understand the harms associated with bullying—including the infliction of emotional harm—and their obligations under the anti-bullying law.”
GLBTQ Legal Advocates & Defenders (GLAD) and the Anti-Defamation League (ADL) submitted an amicus brief in the case supporting the inclusion of emotional harm in the anti-bullying law. The ADL has been a leading advocate for anti-bullying legislation in Massachusetts.
“When left unchecked, bullying can have a lasting impact on the health and well-being of young people, increasing the likelihood of anxiety, depression, and self-harm,” said Robert Trestan, ADL New England Regional Director. “The “emotional harm” prong of Massachusetts’ anti-bullying legislation is a critical component of the law that, when applied in a constitutional manner, protects students who are most vulnerable in our K-12 schools.”
GLAD and the ADL’s brief asserted that the inclusion of emotional harm in Massachusetts’ anti-bullying law provides clarity for students, school staff and parents and guardians about one of the principal consequences of bullying, and that it is vitally important to the law’s objectives to protect youth from the impacts of bullying and establish schools’ responsibility for prevention, identification, and remediation of such behavior.
The brief demonstrated that the definition of emotional harm is well-established and recognized in both law and medicine and presented established medical and social science findings on the severe negative consequences of emotional harm from bullying. The brief also highlighted the disproportionate impact emotional harm from bullying has on stigmatized groups including LGBTQ+ youth and youth of color.
It detailed, for example, research showing that LGBTQ+ youth—particularly those who are Black or Latinx—experience some of the highest rates of bullying, along with studies that reveal the range of social, psychological and behavioral problems that can result from the emotional harm of bullying, from frequent nervousness and fearfulness to self-harming behaviors in later adolescence—including eating disorders, suicidal ideation, substance misuse, cutting and burning.
“We hear regularly at GLAD from LGBTQ+ students experiencing the negative effects of bullying, and a large body of research confirms what they tell us about the long-lasting toll it takes on their mental health and well-being,” said Ben Klein, Senior Attorney and AIDS Law Project Director at GLAD. “The court acknowledged that reality and preserved a key statutory provision to help prevent bullying in our schools. That’s a victory for all students, each of whom needs and deserves a safe, supportive environment in which to learn.”
The ruling stems from a legal challenge in which plaintiffs had argued that the inclusion of “emotional harm” in the law’s definition of bullying was unconstitutionally “overbroad and vague.” The United States District Court for the District of Massachusetts ruled against them, and the plaintiffs appealed.
As part of GLAD’s work to reduce bullying and make schools more inclusive for LGBTQ+ students, the organization helped develop Safe Schools for All in collaboration with other LGBTQ+ advocacy organizations. This unique resource guides students in taking appropriate action if they have experienced anti-LGBTQ+ discrimination, harassment, and bullying at school. Rooted in guidance from the Civil Rights Division of the U.S. Department of Justice and the Office of Civil Rights of the U.S. Department of Education, the site was created in part because of statistics showing that despite the high rates of harassment and assault LGBTQ+ students experience at school, the majority of them don’t report the incidents to staff because they doubt meaningful intervention would occur or doing so would only exacerbate the situation.