Free speech organizations urge caution on federal anti-bullying guidelines

The sickening loss of young people harassed to the point of suicide has policymakers at all levels of government scrambling for answers. More and tougher punishment, while superficially appealing, runs a real risk of ruining as many lives as it saves.

In comments filed Friday with the U.S. Commission on Civil Rights, the Student Press Law Center urged a more measured response to school bullying. The SPLC’s comments note the deficiencies in school disciplinary practices that have come to light after two Virginia student athletes killed themselves while facing harsh penalties for nonviolent infractions.

The Commission is looking over the shoulder of the U.S. Department of Education, which on Oct. 26, 2010, issued sweeping new guidance cautioning schools that failure to respond adequately to complaints of race-based or gender-based bullying could lead to liability under federal anti-discrimination law.

The DOE guidance goes further than previous Department directives about bullying, because it suggests schools are responsible not just for responding to known incidents of bullying, but for affirmatively finding out whether bullying is going on. That has prompted questions about whether it is now the Department’s position that administrators must troll students’ Facebook pages to seek out evidence of online incivility.

In Friday’s comments, the SPLC cautioned 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:

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 DOE 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.

In a separate set of comments, the National Coalition Against Censorship explained why the DOE’s “dear colleague” letter to schools may encourage the punishment of speech that is in fact legal under federal anti-discrimination law.

As the NCAC points out, offensive words typically do not become punishable unless they reach the point of being “severe, pervasive and objectively offensive” to a reasonable listener. The Department’s letter dilutes that standard by turning the “and” into an “or.” This suggests that the DOE might consider an insult to be a civil-rights violation if one unreasonably hyper-sensitive person regards it as “severe,” even if a reasonable listener would not.

The Foundation for Individual Rights in Education, Inc. (“FIRE”) submitted its own set of comments emphasizing the need to clearly differentiate between what constitutes punishable harassment at the K-12 level versus what colleges may restrict, to avoid a “trickle up” to college campuses of rules meant for 12-year-olds.

The Commission on Civil Rights held a workshop May 13 (archived video is viewable here) to assess the effectiveness of the DOE’s response to bullying. The agency is formulating recommendations for how the DOE and Justice Department should apply civil-rights laws to the problem of student bullying, with additional federal legislation among the possible responses. The comment window closed on Friday, but those interested in following the Commission’s progress should check back in September for a final report.