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Inside the First Amendment
By Charles C. Haynes, First Amendment Center
After years of benign neglect – neglect that was anything but benign for the victims – bullying has finally moved to the top of the school-climate agenda.
Today, 49 states and the District of Columbia have anti-bullying laws in place (Montana is the lone holdout). The U.S. Department of Education has issued guidance on how schools can fight bullying and harassment. And many local school districts are moving vigorously to address a serious and widespread problem.
But as school officials act to stop bullying, they need to know when and where to draw the line on student expression. The challenge is to stop bullies without overreacting by censoring students’ protected religious and political speech.
It goes without saying that creating and sustaining a safe learning environment is “job one” for school administrators. But how can public schools balance the need for school safety with a commitment to freedom of expression?
To help answer this question, a coalition of 17 education and religious groups released guidelines on May 22 designed to help public schools combat bullying and harassment while simultaneously upholding the rights of students to free speech and free exercise of religion under the First Amendment.
“Harassment, Bullying and Freedom of Expression: Guidelines for Free and Safe Public Schools” has been endorsed by diverse religious voices such as the Christian Legal Society, the Muslim Public Affairs Council and the Hindu American Foundation, as well as leading educational associations, including the National School Boards Association, the American Association of School Administrators and the National Association of State Boards of Education. (A full list of endorsers and the text of the guide are available at www.religiousfreedomeducation.org).
My own organization, the First Amendment Center’s Religious Freedom Education Project, worked closely with the American Jewish Committee over the past year to produce the document.
As the guidelines explain, much harassment and bullying is physical, “targeting an individual student or classes of students for unwanted touching, bodily assault or threats of violence.” Prohibiting such actions in schools raises no First Amendment concerns.
But bullying can also be verbal, creating a hostile school climate. Following current law, the guidelines draw a distinction between student speech that expresses an idea, including religious and political views, and student speech that is intended to cause (or school officials demonstrate is likely to cause) emotional or psychological harm to the listener. The former is, in most circumstances, protected speech, but the latter may and should be stopped.
As the guide puts it, “Words that convey ideas are one thing; words that are used as assault weapons quite another.”
Although student speech about religious and political issues receives a high level of protection under the First Amendment, such speech can also be controversial, unpopular and offensive to some listeners.
To cite an example mentioned in the guidelines: One student may wear a “gay? fine by me” T-shirt to express support for gay rights, and another student may wear a “be happy, not gay” T-shirt to express an opposing viewpoint.
Students on each side may be tempted to label the views of the other side “harassment or bullying” and demand that the school censor the speech.
But as the guide explains, student speech conveying religious or political ideas is protected by the First Amendment and therefore “may not be the basis for disciplinary action absent a showing of substantial disruption (or likely disruption) or a violation of another student’s legal rights.”
Rather than shutting down student speech about politics and religion, schools should help students master the skills of civil discourse, including the skill of listening to speech with which one profoundly disagrees.
Censorship doesn’t make schools safer. On the contrary, suppressing speech only deepens divisions and fuels intolerance.
To prepare students for citizenship in a pluralistic democracy that values the First Amendment, schools must be places that are both safe and free.
A safe school is free of bullying and harassment – and a free school is safe for student speech, including speech about issues that divide us.
Charles C. Haynes is a former MASA keynote speaker and director of the Religious Freedom Education Project. Contact him at email@example.com.