NCAC Backgrounder

One of the thorniest issues in recent years has been the question of restricting "hate speech" in schools. Schools must provide access to education on a non-discriminatory basis, prevent harassment that interferes with their educational mission, and socialize students to live and work in a diverse community – and they must do all these things while recognizing that the right of free speech sometimes means the right to say things that are offensive to others.

Discrimination in education is addressed at the federal level by Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. These laws impose on public schools the responsibility to insure that educational opportunities are provided on a non-discriminatory basis.

To rise to the level of discrimination, objectionable speech must create a "hostile environment." Under Supreme Court decisions, discrimination occurs only when harassment is so severe, persistent, amd pervasive that it creates a hostile or abusive educational environment and adversely affects a student’s ability to benefit from an education program.  Age and maturity of students is also relevant.  The Department of Education (DOE) Office of Civil Rights, for example, explains that "a kiss on the cheek by a first grader does not constitute sexual harassment."

"A comment by one student to another that she has a nice figure [or] a request for a date…even if unwelcome” does not constitute harassment. Federal law makes it clear that “Title IX is intended to protect students from … discrimination, not to regulate the content of speech…. [O]ffensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a … hostile environment."  Under current Supreme Court standards, the "mere utterance of an ethnic or racial epithet which engenders offensive feelings" is not sufficient to make a hostile environment claim.

Notwithstanding these guidelines, many schools penalize and suppress speech because it might be offensive to others. On the one hand, this is understandable, as schools strive to socialize students and prepare them to live in a democratic diverse community. However, these policies can go too far. Suppressing speech and ideas, by imposing a political orthodoxy, destroys candor, hampers students in working through their own ideas and disagreements, and undermines the ability of students to understand one another. In addition, it can impede the educational program.

When school policies suppress campus speech because it might be offensive, parents and students will likely fail to understand why they should read books with "offensive" language. Ironically, African-American authors, such as James Baldwin, Claude Brown, Maya Angelou, Alice Walker, Toni Morrison, Malcolm X, Richard Wright, and others, are most often challenged on grounds that they might give offense. And if derogatory speech can be suppressed, why not news stories, cartoons, poems, and other material dealing with issues of race, ethnicity, gender, or other sensitive topics.

Eliminating discrimination in education is of the highest priority. Accomplishing this without creating an educational culture repressive of speech and ideas – including those that are sometimes objectionable – is obviously one of the public schools’ most delicate, and important, tasks. Schools that have tried to avoid claims of harassment and discrimination by suppressing "offensive" speech have sometimes found the approach divisive, counterproductive, and expensive, in the case of First Amendment challenges. Schools may be better off doing what they do best – focusing on education, teaching about the First Amendment, discrimination, and the tools of civil dialogue.

Joan E. Bertin, Executive Director, National Coalition Against Censorship