A new set of guidelines attempts to provide clarity for school administrators who are under pressure to curb bullying and harassment and simultaneously protect students’ rights to freedom of speech and expression. But the suggestions have raised concerns from the U.S. Department of Education and other groups.
Court rulings have provided precedent about how K-12 students may express their opinions—even potentially offensive ones—on campus. Taking a cue from those rulings, the new guidelines shared last month and produced by the American Jewish Committee and the Religious Freedom Education Project/First Amendment Center, both based in Washington, emphasize that schools must not censor students’ speech purely out of fear of potential bullying.
Too often, “anytime anyone says something that makes anyone uncomfortable, it’s bullying,” said Charles C. Haynes, a senior scholar at the First Amendment Center and the director of the Religious Freedom Education Project at the Newseum, in Washington.
For example, if a student wears a shirt that says “Be Happy, Not Gay,” “that’s going to be offensive to other students, even hurtful,” Mr. Haynes said.
But “unless it causes a substantial disruption, it’s important for administrators not to overreact by simply trying to censor the speech of a student,” he said, echoing the standard defined more than 40 years ago by the U.S. Supreme Court in Tinker v. Des Moines School District. Schools are a training ground for teaching students to live in a democratic society, one where censorship isn’t the first reaction to offensive speech, Mr. Haynes said.
“We want a respectful exchange of ideas. Schools should sincerely work on that—teaching students to express views without hurting people,” he said. Blocking students’ ability to express themselves could backfire, with students taking more drastic action in response.
Objections Voiced
In a letter to U.S. Secretary of Education Arne Duncan the day after the guidelines were released, however, the New York City-based Anti-Defamation League labeled them “ill-conceived, unnecessary, deeply flawed, and counterproductive to confronting the growing and serious problem of bullying and cyberbullying.”
The group declined to sign onto the list of those who endorsed the guidelines, a list that includes the American Association of School Administrators and the National School Boards Association, both in Alexandria, Va.; the National Association of State Boards of Education in Arlington, Va.; and several religious organizations.
The ADL said the advice to school staff members about teaching a respectful exchange of ideas shows the groups endorsing the guidance are out of touch with schools.
“Bullying situations very rarely erupt as conflicts over political or religious speech,” the ADL letter says. “Instead, they much more often involve the intentional targeting of an individual with less physical or social standing for physical or verbal abuse.”
In 2010, the Education Department’s office for civil rights issued guidance to districts that said some forms of harassment rooted in sex-role stereotyping or religious differences may be a federal civil rights violation, and schools are responsible for addressing harassment incidents about which they know or reasonably should have known.
In a statement last month, the Education Department said that while it and the U.S. Department of Justice “value and support the free speech rights of students, they also are charged by Congress to protect the rights of students to attend school free from discriminatory harassment and other forms of discrimination.”
“We remind schools that the law imposes on them an affirmative duty to respond promptly and effectively to incidents of harassment, whether verbal or physical, about which they know or reasonably should know,” the statement said.
The agencies reiterated what the guideline authors note: that the new guidelines are not legal advice. Ultimately, principals and administrators must decide how to handle each situation. Something that may not be a substantial disruption at one school may be at another, said Sonja Trainor, a senior staff lawyer for the NSBA.
Legal Track Record
Parts of the guidelines are bolstered by several unrelated court rulings. In a 2011 ruling by the 7th U.S. Circuit Court of Appeals in Chicago, for instance, a judge wrote that the phrase “Be Happy, Not Gay” on a student’s T-shirt was not derogatory or demeaning to other students. Students wore the shirts on the Day of Truth, a response to the national Day of Silence. The latter, sponsored by the Gay, Lesbian & Straight Education Network, or GLSEN, based in New York City, is intended to bring attention to anti-lesbian, -gay, -bisexual, and -transgender name-calling, bullying, and harassment in schools.
“You hear horror stories about kids being mocked about their sexual orientation. That’s not expression of ideas but using words as bullets,” said Mark Stern, the general counsel for the American Jewish Committee. The guidelines make a point to distinguish between the two.
One notable exception to groups endorsing the guidelines was GLSEN. Executive Director Eliza Byard said she appreciated the guidelines’ intent; but, given the political climate, her organization feared misuse of the document.
She referenced several proposals to ban discussing homosexuality in school, or “Don’t Say Gay” bills, as they have been dubbed, including one each in Missouri and
“What we have seen is a new wave of backlash and opposition to recent gains respecting the safety and participation of lgbt students in school life,” Ms. Byard said.
The guidelines do note that “students should be able to attend school without being—or even reasonably feeling—threatened by others. School officials should be mindful that abusive peer conduct may deny students full access to an education, even when it is not on a basis prohibited by law.”
They also say that there is no gray area when it comes to suppressing any kind of physical assault, unwanted touching, or violence.
But in general, unless a student exercising his or her right to free speech or expression is creating a substantial disruption of the school environment, it should not be squelched.
Tinker Decision
That criterion was in 1969 by the U.S. Supreme Court’s Tinker decision over whether students could wear black arm bands in protest of the Vietnam conflict.
The new guidelines say the presence of a Confederate flag, clothing expressing a stance on abortion, or something that provides a viewpoint about homosexuality aren’t inherently bullying or harassment. Exceptions in which schools may intervene include speech that promotes the use of illegal drugs, speech considered lewd or vulgar, and school-sponsored speech, such as what’s printed in a school-run newspaper, Ms. Trainor said. When schools do face a situation in which students’ speech is disruptive, the guidelines suggest asking the students to stop what they’re doing rather than immediately punishing the students.
The guidance leaves the question of off-campus speech fairly untouched, noting a mixed collection of court rulings and the U.S. Supreme Court’s decision not to take up such cases earlier this year.
While off-campus speech may be a gray area, it may not be as murky as some think, said Justin Patchin, an associate professor of criminal justice at the University of Wisconsin-Eau Claire and a co-director of the Cyberbullying Research Center. The standard is the same: whether the expression results in a substantial disruption at school.
“If educators have to stop teaching, students are constantly accessing the remarks, talking about it, it results in repeated discipline, if they have to stop doing what they would normally be doing, ... they have the authority to have that removed,” Mr. Patchin said.
He said his research finds that only about 10 percent of students have cyberbullied in the last 30-day period, meaning the majority of students on social-networking sites are making good decisions, and that trend is increasing.
