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.

Agreed.

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

Agreed.

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

Agreed.

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.

PFAW