David Rubin, a Metuchen-based education lawyer, has filed a Supreme Court brief to prevent K-12 and college students from being bullied even when off campus because it may disrupt a student’s school experience.
Rubin, who filed the brief, known as Mahanoy Area School District v. B.L., revealed this at the Middlesex College Law Association presentation earlier this month.
According to https://www.scotusblog.com/case-files/cases/mahanoy-area-school-district-v-b-l/, which offers an independent analysis of the U.S. Supreme Court, Mahanoy Area School District v. B.L. will rule whether a previous ruling, which determined school officials may regulate speech that would disrupt school activities, applies to student speech that occurs off campus.
Rubin said, “We basically take the position: make up whatever rule you want about speech off campus. Generally, let the parties to the case argue that, but whatever you do, Supreme Court, at least leave some space for courts (or) for school authorities to regulate off campus speech that amounts to bullying or harassment of fellow students because in this day and age, to talk about on campus versus off-campus, in-person (or) online are meaningless distinctions.”
“The First Amendment does allow for a fair amount of expression that others might find hurtful, offensive (or) controversial,” he said, “How do we reconcile that with our anti-bullying laws here in New Jersey and in other states? Courts really have not come to grips with that.”
“The same group of kids are harassing the child in person, on-campus, off campus, at night, into the next day, moving from one environment to another. If you limit school authorities’ ability to regulate this sort of behavior to the four corners of the school property, a lot of kids are going to get hurt as a result,” Rubin said.
He said that reasonable people may differ about how much school officials should interfere but that there must be some options for school officials.
“Our position is (to) let those people fight it out, but whatever you do, Supreme Court, at least save some space for school officials to deal with harassment and intimidation of particular students because if you cut off that at the school property line, bad things will happen,” Rubin said.
Middlesex College’s director and instructor of paralegal studies, Sheri-Rose Rubin, said this could affect both K-12 and collegiate settings.
“With regard to colleges, some are private and if that is the case, then the First Amendment question does not really apply in the same way as the school is not (affiliated) with the government,” Sheri-Rose Rubin said, “With regard to public schools, such as MC, the question of First Amendment application is important. So, my short answer is yes, it is possible that should the Supreme Court rule that a school has expanded rights to regulate communication outside of school, there could be an impact on what public colleges can control.”
Sheri-Rose Rubin said she had mixed feelings about this because bullying in schools, although perhaps not colleges to the same extent, is a social emergency. However, she said she was not sure how much the school should control.
Cristobal Espinoza-Wulach, a MC history professor, said he disagreed with the brief.
He said that although the brief may focus on K-12 students, it could affect college students as well.
Espinoza-Wulach said, “Giving school administrators power to regulate students’ off campus or unofficial activities can be problematic. Consider the following question: should colleges have the power to regulate students’ use of internet platforms while they are off campus? Should colleges install a software on each student’s computer to surveil their behavior? Giving power to school administrators to handle students’ activities will open the door for colleges to regulate students’ private lives.”
“Moreover, if college officials have the power to regulate students off campus behavior, they could also become liable for that behavior,” Espinoza-Wulach said, “It is not logical to assign power without responsibility and liability. If college administrators become liable, the same administrator will ask for more power to regulate students’ behavior off campus.”
Espinoza-Wulach said however, he agreed that colleges should be proactive in fostering an inclusive and diverse environment.
“College should develop procedures that facilitate reports on bullying and protect the rights of the accuser and the accused. As places of learning, colleges can set a good example on how to address these problems,” he said.
Andrew Dzurisin III, another MC history professor, said he supported the brief.
“Bullying itself is not a new phenomenon,” he said, “What makes it different today is the advent of social media. Social media means kids can’t escape bullies even outside of the school environment. We have seen the tragedy of such intense bullying in the suicides of many teenagers. To combat bullying means to look at both the internal school dynamics and outside factors. To tie the hands of school administrators by only (having) them focus on the school itself seems shortsighted.”
Dzurisin said the brief was more likely to affect K-12 students if passed.
One of the College’s political science professors, Nicolas Archer, said he disagreed with the brief.
“This is just another example of the pointless liberal ‘wokestivism’ strategy that focuses on punishment as prevention for social ills that are ultimately tied to American capitalism, racism, sexism, imperialism and religious culture,” he said, “Until those root structures of domination are addressed and destroyed, bullying, assault and hate speech will continue to exist and grow.”
“If the SCOTUS says yes, which I doubt they will, this would effectively expand school and government dominion over their subjects into the private realm, which, historically, we have been loath to do, and justifiably so, as it would eviscerate due process and many other protections in the Bill of Rights beyond even the First Amendment,” Archer said, “In many ways it is akin to college administrators wanting to have the power to override due process in sexual assault cases or in trying to change the legal definition of sexual assault to include behaviors generally not recognized as such legally. In either case, you have liberal activists and public actors trying to achieve amiable social goals, (like) less bullying (and) less assault, at the expense of the Constitutional structure while ignoring the root causes of problems, namely hyper-capitalist and conservative American culture.”
Archer said he does not believe this brief will have an impact on college students.
“Colleges are considered institutions of higher learning that serve adult populations,” he said, “They are afforded more normative and legal protections for academic freedom, and students are guaranteed far more generous privacy protections.”
The student leader of MC’s Student Law Association, Alex-Kayla Dalerta, said David Rubin’s practice is well-known in the fields of education law, commercial disputes, professional responsibility matters and appellate litigation.
“He has argued numerous precedent-setting cases at all levels of the state and federal court system, generating over 50 published judicial opinions. Mr. Rubin has achieved national prominence in the field of education law through his present representation of numerous public school districts and numerous private schools throughout New Jersey,” Dalerta said.
The argument will be held on April 28. Although the Supreme Court is currently closed to the public, audio coverage is available on C-Span.