Obama Administration: Soft on Bullying, Hard on Speech

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Kevin Jennings, head of the federal Safe and Drug Free Schools office, addresses the problem of bullying with the authority of experience, having been bullied by his peers as a schoolboy and, years later (in 2009) by social conservatives who tried to derail his appointment to the Department of Education, citing, in part, his embrace of a "homosexual agenda." So Jennings should be sensitive to bullying based on status and on the expression of unpopular ideas. But whatever lessons he may have learned about the importance of protecting the freedom to say what you choose -- as well as the safety to be who you choose -- are not reflected in the administration's crusade against bullying. If Department of Education officials intended to demonstrate a penchant for gratuitous bureaucratic overreach and disregard for individual rights, they've succeeded.

An October 26, 2010 "Dear Colleague" letter from the Education Department's Office of Civil Rights (OCR) presents school administrators nationwide with expansive definitions of harassment and bullying that effectively encourage schools anxious to avoid liability to impose very broad restrictions on student speech. (The Daily Caller reported on OCR's letter in an article that's somewhat sensationalized but essentially true.) Noting that federal laws protect students from discrimination based on race, national origin, sex, or disability, OCR provides a definition of actionable harassment considerably broader than the definition supplied by the Supreme Court some ten years ago.

In a 1999 case, Davis v Monroe, involving student on student sexual harassment, the Court limited school liability in private-damage actions to the most grievous cases in which school officials displayed "deliberate indifference to known acts of harassment ... so severe, pervasive, and objectively offensive that it effectively bars the victims' access to an educational opportunity or benefit." The Court added that actionable harassment would generally involve persistent, repeated misconduct, not simply one offensive incident.

The administration's failure to advise schools on their obligations to respect First Amendment freedoms reflects the tendency of anti-bullying campaigns to devalue speech in favor of keeping students "safe."

Compare the Court's approach here to the administration's definition of harassment.  According to OCR's letter, the alleged misconduct need not be repeated; it may involve one incident and it need only be "sufficiently severe, pervasive, or (not "and") persistent so as to interfere with or limit a student's ability to participate in or benefit from the services, activities or opportunities offered by a school." Harassment need not even include "intent to cause harm" and need not "be directed at a specific target." In other words, schools could conceivably be liable for innocent, non-severe, non-pervasive, undirected "harassment," like teasing or controversial references to racial, ethnic, or sexual stereotypes. Finally, according to OCR, discriminatory harassment may merely "limit" student's ability to participate in school; it need not "effectively bar" a student's access, as the Court held; and there is no requirement that the harassing speech or conduct be deemed reasonable or "objectively offensive."

These differences in the wording of standards enunciated by the Court and the administration, respectively, may seem small, but they loom large legally in assessing a school's liability. The OCR letter is a compendium of quite consequential legal technicalities, and it indicates why school policies are apt to be drafted by risk averse lawyers, instead of educators. (Harvey Silverglate, co-founder of the Foundation for Individual Rights in Education, attributes the decline of liberty on campus partly to the ascent of lawyers.)

Perhaps the most significant burden on school officials (which will significantly burden student speech) lies in the virtual omniscience and omnipotence the administration apparently expects of them. The Supreme Court imposed liability on schools when officials deliberately ignored "known" cases of grievous harassment (in Davis, the harassment included a sexual battery and prolonged sexual taunting of a young girl.) The administration, however, holds schools responsible for harassment about which it "reasonably should have known" (including off-campus, online harassment) and schools are required to "take prompt and effective steps reasonably calculated to end the harassment." Punishing offenders may not shield schools from liability; they may be required to take "systemic" action, like initiating sensitivity trainings, which, on college campuses, regularly violate freedom of speech and belief.

OCR does not discuss student-speech rights in its October 26th letter, free-speech merits merely a footnote to an earlier, 2003 OCR memo affirming restraints on anti-harassment policies imposed by the First Amendment. How did civil liberties groups respond to OCR's new guidelines? Some free speech advocates are concerned, but the ACLU offered unmitigated praise for OCR's letter to schools, calling it a "vital step today (in) alerting all school districts to their legal duty to protect their students ... this guidance is a welcome and important step toward ending discrimination in schools."

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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