An October 26, 2010 “Dear Colleague” letter from the Department of Education’s Office of Civil Rights (OCR) attempts to give guidance to schools in dealing with the problem of “bullying.” Bullying has been in the national spotlight for the last few years, first, because of the technological enhancement the Internet brought to old-fashioned schoolyard bullying and, second, because of the alleged correlation between the bullying of gay teens and instances of gay teen suicide. Schools, parents and legislators have struggled with how to respond to what they see as a growing problem. NCAC has covered and commented on the various responses from the perspective of young people’s free speech rights.
The “Dear Collegue” letter, in spite of its good intentions, presents a serious threat to student speech. In an article for the Atlantic, lawyer and writer Wendy Kaminer argues that the letter offers school administrators nationwide with “expansive definitions of harassment and bullying that effectively encourage schools anxious to avoid liability to impose very broad restrictions on student speech.”
Some highlights from the article:
“Perhaps the most significant burden on school officials (which will significantly burden student speech) lies in the virtual omniscience and omnipotence the administration apparently expects of them. (…) The administration, however, holds schools responsible for harassment about which it ‘reasonably should have known’ (including off-campus, online harassment) and schools are required to ‘take prompt and effective steps reasonably calculated to end the harassment.’ Punishing offenders may not shield schools from liability; they may be required to take ‘systemic’ action, like initiating sensitivity trainings, which, on college campuses, regularly violate freedom of speech and belief.”
There is a “… tendency of anti-bullying campaigns to devalue speech in favor of keeping students “safe,” not just from physical assaults but from insults and slurs, both trivial and potentially traumatic.”
“Like pornography, bullying is hard to define objectively — people think they know it when they see it, but some see a lot more of it than others — and the effects of bullying (however it is defined) range widely, depending on its severity and the resilience of its targets. …”
“… while securing the protection of civil rights laws (which I support) provides remedies to victims of harassment, it doesn’t necessarily embolden them or encourage self-sufficiency.”