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ADL Letter to Secretary of Education Arne Duncan, Re: Bullying Guidelines for Schools

May 23, 2012

The Honorable Arne Duncan
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202

Dear Secretary Duncan:

You may be aware that earlier this week, 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 to send a letter to schools and school districts, limiting and distinguishing the Guidelines – and clarifying schools’ actual current obligations under federal 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, the Department of Education’s Office for Civil Rights (OCR) issued significant, inclusive, and quite comprehensive guidance for addressing bullying and harassment in October, 2010.   It is critically important to note that the OCR Dear Colleague guidance also 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 this week downplay, undermine, and understate this OCR guidance, relegating it to a passing reference buried in a footnote.

ADL strongly welcomed the OCR Dear Colleague letter, which 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 stressed 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 Department’s Dear Colleague letter, however, the Guidelines issued this week emphasize students’ First Amendment rights over the responsibility to create a safe learning environment for all students – 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 this week 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 policies – and as the OCR guidance 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 this week offer specific advice to schools that is inconsistent with the Department of Education’s legal guidance – as well as 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 this week unfortunately propose a path to retreat on the accomplishments we have made in addressing bullying and harassment in schools. 

We urge you to write to schools and school districts across the country to clarify their existing legal obligations and emphasize, in the words of the Department’s October, 2010 Dear Colleague guidance, “their important responsibility to maintain a safe learning environment for all students.”



Robert G. Sugarman
National Chair
Abraham H. Foxman
National Director

Related Materials

ADL Letter to Assistant Attorney General for Civil Rights Thomas E. Perez, Re: Bullying Guidelines for Schools (6/6/12)

ADL Calls Coalition Guidelines On Bullying, 'Ill-Conceived'; Urges Duncan To Warn Schools On Their Use (5/24/12)

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