Controversy Over Harassment, Bullying and Free Expression Guidelines

Sheila Musaji

Posted May 26, 2012      •Permalink      • Printer-Friendly Version
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Controversy Over Harassment, Bullying and Free Expression Guidelines

by Sheila Musaji

This week, a report titled “Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools” was released.  It was PRODUCED BY: American Jewish Committee and the Religious Freedom Education Project/First Amendment Center.  It was
ENDORSED BY:  American Association of School Administrators, ASCD, Center for Religion and Public Affairs of Wake Forest University Divinity School, Christian Educators Association International, Christian Legal Society, Hindu American Folundation, Islamic Networks Group, Islamic Society of North America, Muslim Public Affairs Council, National Association of Evangelicals, National Association of State Boards of Education, National Council for the Social Studies, National School Boards Association, Religion Action Center of Reform Judaism, and the Union of Orthodox Jewish Congregations of America.

On the surface it would seem as if this would not be controversial, however immediately after the press conference announcing the release, the ADL issued a statement about its concerns over the guidelines.

Lauren Markoe notes the core of the controversy:

When Sally tells Jimmy that he’s going to hell for believing in a false religion, is that Sally exercising her First Amendment right to free expression, or is that Billy getting bullied?

A broad coalition of educators and religious groups—from the National Association of Evangelicals to the National School Boards Association—on Tuesday (May 22) endorsed a new pamphlet to help teachers tackle such thorny questions.

Authored chiefly by the American Jewish Committee, “Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools,” contains 11 pages of advice on balancing school safety and religious freedom.

“There are those who believe that we can’t have restriction on bullying and protect free speech; Conversely there are those who think that the rules against bullying are so important that they trump any concern for free speech,” said Marc Stern, the AJC’s chief counsel and lead author of the pamphlet.

I am certain that there will be much more said about this in the coming weeks, and we will update as needed.  It is an important discussion.  Here are key statements to date on the guidelines.  I am not an educator, but I am a parent, and after reading the guidelines and the various statements, I must admit that I find the ADL’s arguments the most persuasive. 

The Islamic Society of North America:

(May 25, 2012) At a press conference held this Tuesday, May 22, a new resource guide was released which aims to help public schools more successfully combat harassment and bullying while also protecting the First Amendment rights of their students to express personal beliefs. 

“Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools” was endorsed by ISNA and 17 other national organizations.  The resource document was organized by the the Religious Freedom Education Project and the American Jewish Committee.

This document provides necessary guidelines to better clarify the murky area of law surrounding what constitutes harassment and what is considered constitutionally protected free speech.  For example, while it is completely acceptable to express what your religion might think about a particular social issue, it is never acceptable to use that belief to threaten or harass a student. 

ISNA and the creators of these guidelines believe the document is a critical first step towards addressing a growing problem of bullying in schools that has, unfortunately, led to very serious and harmful consequences across the nation for those bullied.  ISNA

The Muslim Public Affairs Council

This week, MPAC joined the First Amendment Center at the Newseum, the National School Boards Association and 16 other organizations at a press conference to release “Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools.”

Speakers at the press conference at the National Press Club included Marc Stern from the American Jewish Committee, Charles Haynes of the Religious Freedom Education Project, Francisco Negron from the National School Boards Association, Kim Colby of the Christian Legal Society, and Hoda Elshishtawy, MPAC’s Legislative and Policy Analyst.

The goal of the guidelines, which will be distributed to school districts around the country, is to “help public schools balance the need for school safety with the need for free expression.”
According to the guidelines, students should be able to attend public schools where they are free to share their views and engage in discussions about religious and political differences in a safe school environment that prohibits discrimination, bullying and harassment.

Some students are targeted and singled out for bullying and harassment as a result of scapegoating from skewed debates on race, immigration or even national security spilling over into the schools.

“Of course, students are free, and in fact encouraged to have their own opinions on issues impacting their lives; but teachers and administrators must ensure and be responsible to create safe spaces to permit students to explore these issues while being aware they are in an honest, safe and open environment that allows all students to thrive,” Elshishtawy stressed during the press conference.

While students’ right to free speech must be upheld, we understand the important role teachers and administrators play in educating our students as well as making them feel comfortable and creating an environment of openness and inclusion.

At times harassment and bullying clash with free speech—whether an American Muslim student is bullied as a trickle-down effect of Islamophobia, or a gay student is harassed because of their sexuality or a Sikh American student is targeted because of perceived religious affiliations with Islam.

As a faith-based organization, MPAC is proud to endorse the guidelines, which encourage school leaders to address head on the difficult realities students are facing today. Having these conversations helps build resilient communities and allows for our students to understand the importance of free speech while recognizing the destructive power words can have when wielded as weapons for bullying.

The value of free speech in a democratic society is a treasure and public schools can be an example of institutions where constitutional rights are upheld and cherished while individual dignity and safety are simultaneously respected and protected.  MPAC

The Anti-Defamation League letter to Secy. Duncan of U.S. Dept. of Education

You may be aware that earlier this week, a diverse group of organizations released guidelines on how they believe public schools can protect First Amendment free speech rights while addressing peer bullying and harassment.  The Anti-Defamation League declined an invitation to endorse the document, “Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools” (”Guidelines”) because we believe the Guidelines are ill-conceived, unnecessary, deeply flawed, and counter-productive to confronting the growing and serious problem of bullying and cyberbullying.

Because of the confusion and mixed messages promoted by these Guidelines, we write to urge the Department to send a letter to schools and school districts, limiting and distinguishing the Guidelines – and clarifying schools’ actual current obligations under federal anti-discrimination laws.

It is disturbing that these Guidelines barely acknowledge the significant regime of current federal and state anti-bullying laws and policies. As you know, 49 states and the District of Columbia have already enacted laws and policies intended to deter bullying and to provide a constitutionally-sound framework for responding to students engaging in bullying and those they are targeting. 

In addition, under your leadership, the Department of Education’s Office for Civil Rights (OCR) issued significant, inclusive, and quite comprehensive guidance for addressing bullying and harassment in October, 2010.  It is critically important to note that the OCR Dear Colleague guidance also outlined serious legal obligations for schools, alerting them to the need to comply with the full range of federal education anti-discrimination laws.  Yet, surprisingly, the Guidelines issued this week downplay, undermine, and understate this OCR guidance, relegating it to a passing reference buried in a footnote.

ADL strongly welcomed the OCR Dear Colleague letter, which provided an unprecedented, inclusive description of the breadth of existing federal anti-discrimination laws and their application to both K-12 schools and colleges and universities.  The OCR guidance stressed that when responding to an incident of discriminatory harassment where a hostile environment is formed, it is not enough for the institution only to punish the student who is responsible.  The administration must also lean forward to address the environment and the effect of the incident and take steps to ensure the harassment does not recur.

Directly contrary to the Department’s Dear Colleague letter, however, the Guidelines issued this week emphasize students’ First Amendment rights over the responsibility to create a safe learning environment for all students – especially vulnerable minority, disabled, and LGBT students.  While we agree that students’ free speech and religious expression rights are important, we strongly disagree with the Guidelines’ direct implication that such rights have been given short shrift in current federal and state law and policy and need greater protection.

The Guidelines issued this week have the word “Bullying” in their title, but break no new ground and offer no insights on preventing bullying.  Even worse, they are tone-deaf as to the actual dynamics of real-world bullying in our nation’s private and public schools.  Bullying situations very rarely erupt as conflicts over political or religious speech.  Instead, they much more often involve the intentional targeting of an individual with less physical or social standing for physical or verbal abuse.  Targeted students are in a very different power position than those doing the bullying.  The aggressor’s objective is not to convince his/her target of the rightness of a policy position – it is, rather, to cause physical or emotional harm.

Perhaps the clearest, most disturbing example of the sterile, divorced-from-reality manner in which the groups’ Guidelines address bullying is this statement:

Even though there is a right to turn away from speech with which one disagrees, school officials should explain, on an age-appropriate basis, that it is a necessary habit of democratic citizenship to learn to listen to ideas with which one disagrees, to analyze arguments, and to respond, whether with a rebuttal or defense, or a change, modification or reaffirmation of one’s own views.

In other words: “Targets of bullying:  life can be tough – learn to live with it.”

It is unfair and unrealistic to expect that children – especially vulnerable, oft-targeted children – can or will do this.  Instead, as many state anti-bullying policies – and as the OCR guidance make clear – school personnel have a legal, ethical, and moral responsibility to protect students from the physical and emotional harms that bullying can cause.  We believe strongly that school personnel must send the explicit message that acts of bullying are unacceptable and will be taken seriously.

The most common forms of bullying are in-person and electronic verbal abuse.  Maybe the drafters and endorsers of the Guidelines believed that current state and federal policies are insufficiently attentive to the First Amendment rights of students.  Yet, if clarification of this issue was their intention, they utterly failed:  they do not cite a single case that would be corrected if their Guidelines were implemented. 

Sadly, there is good reason to be concerned that the Guidelines will be misinterpreted – perhaps purposely by some.  For example, anti-bullying advocates have fought to defeat amendments to proposed anti-bullying legislation – in Michigan, Tennessee, and elsewhere – which would carve out an exception for “a sincerely held religious belief or moral conviction.” ADL is a staunch supporter of religious freedom, but never as a justification or excuse for harassment or bullying.

The Guidelines issued this week offer specific advice to schools that is inconsistent with the Department of Education’s legal guidance – as well as laws and policies adopted by 49 states and the District of Columbia.  It is notable that most of the leading anti-bullying advocacy and stakeholder groups in this country did not endorse these Guidelines. 

Rather than build on the extraordinary progress in recent years achieved through enactment of state anti-bullying laws and policies or complement the significant and welcome broad array of new federal education and outreach initiatives to address bullying, the problematic Guidelines issued this week unfortunately propose a path to retreat on the accomplishments we have made in addressing bullying and harassment in schools. 

We urge you to write to schools and school districts across the country to clarify their existing legal obligations and emphasize, in the words of the Department’s October, 2010 Dear Colleague guidance, “their important responsibility to maintain a safe learning environment for all students.”


ADL Calls Coalition Guidelines On Bullying, ‘Ill-Conceived’; Urges Duncan To Warn Schools On Their Use

Anti-Defamation League Condemns Coalition’s Bullying Guidelines As ‘Deeply Flawed’, Zack Ford

Bullying or free speech?

Guidelines seek line between free speech, bullying, Lauren Markoe

Harassment, Bullying And Free Expression: Guidelines For Public Schools Seek Middle Ground, Lauren Markoe

New guidelines help schools combat bullying

Rabbi Saperstein Welcomes Public School Guidelines on Harassment, Bullying and Free Expression

School Harassment and Bullying Policy Will Include Respect for Religious Beliefs