Obama Administration: Soft on Bullying, Hard on Speech

By Wendy Kaminer

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."

I invited the ACLU to offer additional comments on OCR's letter. In response, a national staff member cited some important state affiliate cases protecting student speech rights, and added, "the ACLU takes into account both free speech rights and the right to be free from discrimination." That is sometimes true, especially in state affiliates, but you'd never know it from reading the ACLU's official praise of OCR's "Dear Colleague" letter. Compare the ACLU response to a December 7, 2010 response by the National School Board Association (NSBA), concisely critiquing OCR's unduly expansive definitions of harassment. (The NSBA is primarily concerned with protecting schools from litigation, but imposing reasonable, discernible limits on school liability should result in expansions of student rights to speak.)

The administration's failure to advise schools on their obligations to respect First Amendment freedoms (and the ACLU's failure to point it out) is discouraging but not surprising. It reflects the tendency of anti-bullying campaigns to devalue speech in favor of keeping students "safe," not just from physical assaults but from insults and slurs, both trivial and potentially traumatic. President Obama, for example, recalls experiencing bullying, thanks to his "big ears" and funny name: "I didn't emerge unscathed," he said at the recent White House bullying conference -- although, all things considered, he doesn't seem to have emerged much scathed.

Like pornography, bullying is hard to define objectively -- people think they know it when they see it, but some see a lot more of it than others -- and the effects of bullying (however it is defined) range widely, depending on its severity and the resilience of its targets. Some targeted students, like big-eared Barack Obama, survive and prosper, but there's little if any indication of that in the OCR letter or the rhetoric of anti-bullying campaigns, which is understandable, in part. Bullying is a particular priority for gay-rights advocates, because gay students are often targeted and because federal civil rights law does not yet prohibit discrimination based on sexual orientation, in the workplace or school (although OCR explains that federal prohibitions on sex discrimination may sometimes apply to instances of sexual orientation discrimination). Someday Congress may provide explicit statutory relief to gay and transgendered students. The Student Non-Discrimination Act, introduced last year by Senator Franken, would bar pubic school discrimination based on sexual orientation or gender identity.

But while securing the protection of civil rights laws (which I support) provides remedies to victims of harassment, it doesn't necessarily embolden them or encourage self-sufficiency. And when the laws are construed broadly to apply to instances of severe and moderate misconduct alike, they promote the extreme sensitivity to racial, ethnic, sexual, or homophobic slights that (after 20 years of political correctness with remarkable resistance to satire) now seems entrenched.

A recent controversy about racism at New York's Stuyvesant High School illustrates how little is required to "traumatize" students today. Four white male Stuyvesant students have been suspended for making a racist rap video, which was publicized when it was posted on YouTube by an offended Stuveysant graduate. (Racial slurs in a stupid student rap video -- imagine that.) The City's Department of Education is reportedly investigating the video, which one city councilman histrionically condemned as "cyber-terrorism." New York Civil Liberties Union Executive Director Donna Lieberman was quoted expressing hope that the video controversy would be used as a "teachable moment" -- about harassment and respect -- not about the freedom to make your own puerile rap video on your own time, without exposing yourself to official investigations of your offensive racist attitudes and ideas.  

Or consider the plight of Alexandra Wallace, the UCLA student who received death threats (prompting her to leave school) and was briefly investigated by school officials after posting another stupid, now notorious video deriding Asians. (Don't ask me how people reconcile their right to voice death threats with no right to voice ethnic slurs.) It's worth stressing that Wallace was accused by some of libel as well as harassment. The Supreme Court upheld group libel laws 60 years ago, but that ruling has since been widely discredited and practically although not formally overruled. Yet the concept of group libel is making a comeback in the form of anti-harassment policies. As the Obama administration advises, racial, ethnic, or sexist slurs need not target any particular student in order to qualify as discrimination.

"If you have nothing nice to say, don't say anything," girls were once admonished.

Occasionally, conservatives' complaints about the liberal feminization of culture may be truer than they know. 



This article available online at:

http://www.theatlantic.com/politics/archive/2011/03/obama-administration-soft-on-bullying-hard-on-speech/72926/