NO BULLIES ALLOWED
After a year filled with race-based student misbehavior, policymakers should consider an
anti-harassment policy for both legal and learning reasons
Lately, public school leaders are too often seen waging a valiant struggle against
poisonous acts in which a student’s race and ethnicity are the source for hatred, while
decorum and civility get carelessly cast aside.
While nooses, swastikas, and other symbols of hatred have never entirely gone
away, in recent years incendiary words and acts seem to have experienced a disturbing
renaissance.
In such an atmosphere, and with potential legal liability lurking just below the
surface, the temptation for good people to do something becomes strong.
Below are some observations coupled with a few ways in which policy can help.
Boards should address the learning climate before a crisis arises and they’re forced to
react. Yet, the reality is this: Neither law nor school board policy has the power to change
attitudes.
Done right, however, school boards, superintendents, principals, and teachers can
demand a school climate in which every student-regardless of background, ability, or
disability-feels entitled to respect and has swift, sure, and easy recourse when it is denied.
Why develop policy?
This is where policy emerges. Many school districts have passed anti-harassment
policies to serve as an official statement that abusive behavior will not be tolerated.
Commonly, the policies encompass harassment by race and ethnicity but then go beyond
those traits to specify other harmful words and behavior that are out of bounds.
With February traditionally celebrated as African-American History month, it
seems an opportune time to pause and look back to see what lessons can be learnedlegally speaking-that will help school boards, superintendents, and communities avoid the
strife and pain that has become all too familiar.
Few tasks are more difficult, however, than turning common social courtesy into
policy language. If a district’s anti-harassment policy is written too generally, it restricts
the kind of offensive (but protected) free speech guaranteed by the U.S. Constitution. In
such circumstances, the school system could be challenged and ultimately overturned by
a federal court that deems the policy “overbroad.”
Write a school campus anti-harassment policy with detailed “thou shalt nots,” and
it risks violating free speech in one of the listed items it forbids. The policy also might
omit some elements. In that scenario, even if a court case does not upend it, the policy
must be constantly amended to account for individual creativity.
A 2001 case written by now-U.S. Supreme Court Justice Samuel Alito when he
was on the 3rd U.S. Circuit Court of Appeals is instructive of good intentions gone awry.
In Saxe v. State Area College School District, Alito struck down a Pennsylvania school
district’s anti-harassment policy, criticizing it on several First Amendment grounds.
Alito said the school district went too far, for instance, in prohibiting speech
directed at another person’s “values” rather than just a student’s behavior or speech. He
condemned the policy for exceeding what was necessary to prohibit “harassment that
objectively denies a student equal access to a school’s education resources.”
There is “no question that the free speech clause protects a wide variety of speech
that listeners may consider deeply offensive, including statements that impugn another’s
race or national origin or … that denigrate religious beliefs,” Alito wrote in his opinion.
Offense and defense
From a legal view, adopting an anti-harassment policy serves as both offense and
defense for a school district. It is a preventive tool, giving students unequivocal notice of
what is acceptable in the tricky realm of inter-personal relations. The policy also provides
evidence of a district’s good will when a lawsuit is filed.
Here are a few past school-related happenings to consider:
■ An incident involving nooses hung from a tree at a LaSalle Parish district high school
in Jena, LA, triggered a protest that drew thousands of people from around the nation.
Copycat nooses and swastikas appeared randomly throughout the U.S. to taunt both
students and teachers.
■ Nearly half the students at a high school in Ithaca, N.Y., stayed home one October day
in response to threats of violence and a rumored hit list targeting non-white students. The
community was bitterly divided over the school district’s handling of a two-year-old
incident in which a 12-year-old middle school girl was “subjected to racial slurs,
threatened, spat on, and punched by a group of white boys who called themselves ‘the
rednecks’ on the school bus,” according to the New York Times.
■ The U.S. Supreme Court forbade school districts from considering race when assigning
students, except in the narrowest circumstances. By a 5-4 vote, prevailing justices said
considering race outside a court order nearly always violates the 14th Amendment’s Equal
Protection Clause.
■ Immigration activists urged students in May to skip school as a way to symbolize
support for immigrant rights. That date marked the one-year anniversary of the “Great
American Boycott” in which hundreds of students around the nation sat out for the day to
demonstrate their beliefs on the subject.
■ The U.S. Department of Education agreed, starting in the 2010-11 academic year, to
allow K-12 students to self-identify as multiracial, checking more than one racial box,
when filling out official forms.
Schools can be forced to pay money to plaintiffs if officials allow harassment to
happen and do nothing. Students can litigate based on the U.S. Constitution or civil rights
statutes alleging that racial harassment was severe and widespread, causing a hostile
learning environment. But plaintiffs have a high hurdle to cross.
To be found liable, the student must prove a school district was “deliberately
indifferent: to his plight. In other words, that it is the official policy of the school district
to look the other way.
The “deliberately indifferent” phrase signals to the court that if a district can show
it took even small steps to address either racial harassment in general or that person’s
circumstance in particular, the case will be dismissed.
Districts can present evidence such as sensitivity training workshops, disciplinary
steps taken in the past, an anti-harassment policy, a student mix-it-up/diversity day, etc.
How can policy help?
First, policy should not be written under stress. Bad circumstances and scurried
policymaking usually lead to trouble. A policy of this impact and difficulty should be
done in a considered way with an eye toward the long term, not just to address the latest
flare-up.
The policy should be specific at the outset as to who is within the protected
categories but also leave room for other considerations. It should also, ideally,
incorporate the legal standard.
It would be easy to simply say that animosity is a natural outgrowth of students
attending school together and that the district can deal with it on a case-by-case basis.
And while it is true that clashes are inevitable, it behooves the leadership team to curb
young people’s baser instincts.
Anti-harassment rules could also be produced as part of a superintendent’s
directive or embedded in the code of conduct. But, by passing explicit rules,
policymakers give voice to the school’s official stance. A board-adopted policy provides
staff with a stronger tool to make clear what expectations are and to enforce them
vigilantly.
Doing less could prompt an environment in which teaching, learning, and
working are all compromised.
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Edwin C. Darden (EDarden@appleseed-network.org), an ASBJ contributing editor, is an attorney
and the director of education policy for Appleseed, a national organization focusing on K-12
education law, education policy, and social justice.
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POLICY QUESTIONS TO CONSIDER
■ Does your school district’s anti-harassment policy have an easy and clear reporting
mechanism?
■ Does it allow for officials to refer incidents to law enforcement when necessary?
■ Does the policy and accompanying training emphasize that all incidents will be taken
seriously and investigated?
■ Is your policy equally enforced across the district, being neutral in punishment
regardless of race, gender, or student family income?
■ Do you have a regular review process so the policy regularly gets a thorough
examination?