The Honorable Thomas E. Perez
Assistant Attorney General for Civil Rights
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Dear Mr. Perez:
You may be aware that last month, 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 of Justice to coordinate an outreach and education effort with the Department of Education to clarify schools' actual current obligations under federal civil rights and 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, working cooperatively with the Department of Education, the Justice Department has demonstrated a substantial commitment to full enforcement of federal anti-discrimination laws, resolving serious bullying and harassment situations in such cases as J.L. v. Mohawk Central School District and Doe and United States v. Anoka-Hennepin School District. We are concerned that the Guidelines issued by the groups last month fail to recognize these important cases and their implications.
The Anti-Defamation League strongly welcomed the Department of Education's Office for Civil Rights (OCR) significant, inclusive, and quite comprehensive guidance for addressing bullying and harassment in October, 2010. That OCR Dear Colleague guidance 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 last month downplay, undermine, and understate this OCR guidance, relegating it to a passing reference buried in a footnote.
We believe the OCR Dear Colleague letter 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 ? and the Justice Department's enforcement actions ? stress 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 Justice Department's enforcement actions and the OCR Dear Colleague letter, however, the Guidelines issued last month emphasize students' First Amendment rights over the responsibility to create a safe learning environment for all students ? including 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 last month 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 laws and policies ? and as both the OCR guidance and cases like J.L. v. Mohawk Central School District and Doe and United States v. Anoka-Hennepin School District 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 last month offer specific advice to schools that is inconsistent with the Department of Education's legal guidance, inconsonant with the Department of Justice's resolutions in J.L. v. Mohawk Central School District and Doe and United States v. Anoka-Hennepin School District, and insufficiently attentive to the 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 last month unfortunately propose a path to retreat on the accomplishments we have made in addressing bullying and harassment in schools.
In a statement you wrote with Assistant Secretary of Education for Civil Rights Russlynn Ali in the aftermath of the Doe and United States v. Anoka-Hennepin School District Consent Decree, you asserted:
Education is the great equalizer. Yet students cannot learn if they are afraid to go to school. Students cannot learn if they are being harassed and threatened. Students cannot learn if they feel that school administrators don't and won't protect them.
In concert with the Department of Education, we urge you to write to schools and school districts across the country to clarify their existing legal obligations and to urge them not to rely on these deeply flawed Guidelines, which undermine the Department's fine work in enforcing our nation's education anti-discrimination laws.
Robert G. Sugarman
Abraham H. Foxman