Court rulings have provided precedent about how K-12 students may express their opinions—even potentially offensive ones—on campus, but a new set of guidelines attempts to provide further clarity for school administrators under pressure to curb bullying and harassment.
The new guidelines shared today were produced by the American Jewish Committee and the Religious Freedom Education Project/First Amendment Center, both based in Washington, and they say that schools must not censor students’ speech purely out of the fear of potential bullying.
Too often, “anytime anyone says something that makes anyone uncomfortable, it’s bullying,” said Charles Haynes, a senior scholar at the First Amendment Center and 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.
“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.
More than a dozen groups have endorsed the new guidelines, including 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 need for clarification on the topic has heightened as the Obama administration has taken a more active role against bullying among the nation’s children and teenagers. In 2010, the U.S. Education Department’s office for civil rights issued guidance to school 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.
The guidelines issued today are not intended to be legal advice, however, and, ultimately, school 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 attorney for the NSBA. Consider, she said, a situation in which a student wears a T-shirt that is designed to target a specific classmate.
She said the guidelines also caution schools to consider the age and grade levels of students involved.
Recent Rulings
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.
In this Illinois case, two students had sued their school district after they were prevented from wearing the shirts at school.
“People in our society do not have a legal right to prevent criticism of their beliefs or even their way of life,” the judge wrote.
“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.
“Students may have a right to say what they’re saying, but etiquette in a pluralist society sometimes means you can’t say everything you want to say when you want to,” he added. “The approaches we’ve outlined will work to diffuse controversy.”
One notable exception to the list of groups endorsing the guidelines was GLSEN. Executive Director Eliza Byard said she appreciated the guidelines’ intent, and the distinction made between a simple statement of belief versus bullying and harassment.
However, she said, given the political climate, her organization feared misuse of the document, so they didn’t endorse it.
She referenced several states’ proposals to ban the discussion of homosexuality in school, or “Don’t Say Gay” bills, as they have been dubbed,
“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. Still, “it is not an easy task that principals face. To the extent that these guidelines can provide context to the decisionmaking is valuable.”
Spelling It Out
The guidelines 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.
That criterion was established more than 40 years ago by the U.S. Supreme Court’s Tinker decision over whether students could wear black arm bands in protest of the Vietnam conflict.
For example, the 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 left 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.
“We are responsible for protecting students and teachers from online harassment, but in doing so, we may trigger a lawsuit from a student claiming that his or her free speech has been impinged upon,” said Sasha Pudelski, the government affairs manager for the AASA. “As a result, the line between what is appropriate punishment and what is appropriate speech continues to remain blurred. In the meantime, school districts could be at risk for litigation when they attempt to punish students for online, off-campus speech.”
While there is 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. “That’s most of the time what happens.”
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. He just completed a book with research center co-director Sameer Hinduja called School Climate 2.0: Preventing Cyberbullying and Sexting One Classroom at a Time, published this year by Corwin Press.
Lawsuits are often triggered when schools attempt to quell the speech and punish the posters severely, such as by expulsion or suspension, or when schools fail to intervene at all, including simply having a conversation with parents of the student who posted the offending material.
Going forward from 2005, Mr. Patchin said, “our research bears out that students who are using online tools are making better decisions and behaving more appropriately.”
