Federal Anti-Bullying Guidelines Provoke Formal Comments from Several Free Speech Organizations

As the federal government gears up to combat bullying in schools, free speech organizations are reminding officials of their responsibility to uphold First Amendment protections for students.

In addition to FIRE, the Student Press Law Center and the National Coalition Against Censorship have filed comments with the U.S. Commission on Civil Rights (USCCR) regarding recent guidance issued by the Department of Education's Office for Civil Rights (OCR) on how to reduce bullying in schools. In October of 2010, OCR instructed schools that failure to properly respond to complaints of race-based or gender-based bullying could lead to liability under federal anti-discrimination laws. OCR's sweeping guidance now leaves schools wondering whether they must take intrusive steps—like monitoring Facebook—to ferret out bullying before it is even reported.

As we blogged last week, FIRE's formal comment to the USCCR emphasized that the term "bullying" is amorphous and vague, and that students are already protected from the vast majority of behavior targeted by the anti-bullying push under existing anti-harassment laws and regulations. What's more, governmental mandates that compel elementary and high schools to punish protected speech tend to trickle up and infect the college atmosphere. Like the comments submitted by the National Coalition Against Censorship (NCAC), we therefore argued that the government must respect the speech-protective standard set forth by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999), which held that schools are liable only to address unwelcome, harassing conduct on the basis of race or gender that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." According to the NCAC, "[i]f schools fail to offer students an opportunity for discussion and debate on the challenging issues of their time, many will leave school unprepared to make the kind of informed decisions so necessary in a representative democracy."

The Student Press Law Center's (SPLC's) comments focused on the argument that OCR's guidance will cause schools to punish harmless speech in order to prove to the government that they are tough on bullying. The SPLC's website notes that "the threat of federal civil-rights sanctions will cause schools to over-punish harmless speech as they seek to create a ‘paper trail' of discipline for defensive purposes in litigation—even when an informal conversation might have better resolved the problem." According to the SPLC's comments:

The disciplinary process in many school systems is already badly broken. Imposing hundreds of new disciplinary cases on overburdened schools is the equivalent of pouring ten gallons of water into a leaking five-gallon jug. ... [T]he [Department of Education] should impose no new disciplinary mandates unless and until it undertakes a comprehensive study of the state of school disciplinary procedures and is satisfied that wrongfully accused "bullies" will have a fair opportunity to clear their names.

We at FIRE are heartened by the fact that other free speech organizations are also keeping a watchful eye on the government's anti-bullying initiatives, even when championing free speech is not politically popular. We hope that the USCCR's forthcoming report on the federal response to bullying in schools will take these concerns seriously.