New guidelines hit the free speech bullseye but miss the mark on bullying prevention

On May 22, a coalition led by the American Jewish Committee and the Religious Freedom Project/First Amendment Center released Harassment, Bullying, and Free Expression: Guidelines for Free and Safe Public Schools. While we welcome the opportunity to keep the anti-bullying conversation going, this particular entrée has a problem.

It concludes:

Prevention of harassment and bullying is essential for healthy, effective public schools.


But that effort must not lead to excessive limitations on the constitutional right of students to freedom of expression.


School officials have an obligation to seek the right balance between upholding free speech and maintain a safe learning environment for all students.


So what’s the problem?

With a clear primacy for speech rights, it tilts the balance too far in one direction.

To understand why let’s start with PFAW’s approach to the issue.

Following the increased media attention paid to bullying-related suicides in 2010, PFAW took a strong stand on behalf of lesbian, gay, bisexual, and transgender (LGBT) students and those who are perceived to be LGBT.

We supported the Safe Schools Improvement Act (SSIA) and comprehensive anti-bullying policies that enumerate specific categories of victims, including students targeted based on sexual orientation and gender identity, as well as SSIA’s provisions for data collection, public education, and grievance procedures.

We supported the Student Non-Discrimination Act (SNDA), which protects students from school-based sexual orientation and gender identity discrimination, much like Title IX does for gender discrimination, and much like other areas of law do for various protected classes. SNDA recognizes bullying and harassment as discrimination, and it provides both for remedies against discrimination and incentives for schools to prevent it from happening in the first place.

We didn’t support either at the expense of the Frist Amendment or freedom of speech.

SSIA states:

Nothing in this part shall be construed to alter legal standards regarding, or affect the rights (including remedies and procedures) available to individuals under, other Federal laws that establish protections for freedom of speech or expression.

SNDA states:

Nothing in this Act shall be construed to alter legal standards regarding, or affect the rights available to individuals or groups under, other Federal laws that establish protections for freedom of speech and expression, such as legal standards and rights available to religious and other student groups under the 1st Amendment to the Constitution and the Equal Access Act (20 U.S.C. 4071 et seq.).

Yet the May 22 guidelines say nothing of either bill, very little about the anti-bullying laws and policies already in place in 49 states and DC, and very little about the Department of Education’s October 2010 guidance. In other words, they take anti-bullying policies out of the anti-bullying context altogether and place them in the free speech context.

As the Anti-Defamation League put it in letters to Education Secretary Arne Duncan and Assistant Attorney General Tom Perez:

While we agree that students’ free speech and religious expression rights are important, we strongly disagree with the guidelines’ direct implication that such rights have been given short shrift in current federal and state law and policy and need greater protection.

We completely agree that the free speech rights of students should be defended.

We have every interest in fostering learning environments safe not only for free speech but also for freedom from bullying and harassment.

We hope that we can unite around a common goal of stopping abhorrent behavior that prevents victimized students from accessing a quality education. What should be havens for learning have instead become, for LGBT students and those who are perceived to be LGBT, sites of abject torment. All of our children deserve far better than that.

Click here for PFAW’s comments on bullying ahead of the new school year.


EEOC takes step forward in fight to end transgender employment discrimination

In October and December of 2010, the Department of Education took a stand for LGBT youth by issuing guidance to address bullying in schools, especially as it relates to federal education anti-discrimination laws. One of those laws, Title IX of the Education Amendments of 1972 (Title IX), prohibits discrimination on the basis of sex. While the language does not specify sexual orientation and gender identity, the Department has made clear that harassment on these grounds, under certain circumstances, violates Title IX.

Last month brought a similar ruling from the Equal Employment Opportunity Commission, establishing that gender identity employment discrimination violates sex discrimination protections under Title VII of the Civil Rights Act of 1964, thus allowing the complaint filed by Mia Macy to proceed.

Masen Davis, Executive Director of the Transgender Law Center:

Given the incredibly high rate of employment discrimination facing transgender people, this is incredibly significant for us. Data [link] from the National Center for Transgender Equality and National Gay and Lesbian Task Force found that 78 percent of transgender Americans say they've experienced workplace discrimination at some point in time. Given that transgender people do not have employment protections in the vast majority of states, this creates a whole new fabric of legal support for our community.

Mara Keisling, Executive Director of the National Center for Transgender Equality:

It will help so much that the EEOC agrees with what more and more courts have been saying—discriminating against trans people because of their sex, or their perceived sex, or what an employer thinks about their sex is clearly sex discrimination, illegal and wrong.

Rea Carey, Executive Director of the National Gay and Lesbian Task Force:

This is a historic victory for transgender people and their families — and it couldn’t come too soon. Our national survey on transgender discrimination found staggering levels of workplace discrimination against transgender Americans. This jeopardizes their ability to have or keep a job, have a roof over their head, and feed and take care of their family.

That the EEOC will now hear Mia Macy’s case is a hopeful sign that the American principles of fairness and equal opportunity might someday extended to all in the workplace. (Click here to learn about the backlash.)

Other recent developments include progress at US Citizenship and Immigration Services, a speech at my alma mater, Ohio University, and increased awareness (including PFAW Foundation) about the challenges faced by transgender voters.