Bullying has attracted significant media attention in recent years, usually focusing on the most extreme examples of such behavior. Bullying can certainly be so severe as to trigger the police power of the state, and even federal involvement in enforcing civil rights (for example, through the Constitution’s mandate of “equal protection of the laws”). But this confluence of responsibilities creates fertile ground for federal overreach. The federal government exploits it to intimidate state and school officials, and ultimately parents, into abdicating their discretion in addressing less severe misbehavior—the type that teachers and principals handle every day. The federal government further exploits it to drive its values agenda into the states, the classroom, and the home.
The Obama Administration’s claims that it favors local control in education are belied by its actions—for example, coercing states to accept federally approved content standards and to compile and share private student data. But as evidence of federal interference run amok, Exhibit A is the Administration’s campaign to outlaw “bullying” and “harassment” in schools. From the Administration’s standpoint, this campaign offers double benefits: it enables the federal government both to control the minutiae of daily school operations, and to impose its preferred cultural attitudes. This attack is demonstrably inconsistent with constitutional and statutory law, and is yet another troubling transfer of power from families and localities to Washington.
The federal government’s constitutional role in education is basically nonexistent; the education of children is quintessentially a local and familial function. Though Congress long ago inserted itself into education policy despite this lack of authority, the federal government almost certainly does not have the power to enact an outright ban on bullying, under either the Commerce Clause (see U.S. v. Lopez) or the Fourteenth Amendment (see U.S. v. Morrison).
Congress and the federal Department of Education evade this problem through the power of the purse. Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and two lesser known statutes prohibit any educational institution that receives federal funding from discriminating on the basis of race, color, national origin, sex, or disability. If a school takes our money, says the Department, it must obey our rules. The Supreme Court generally allows this technique under the Spending Clause, Art. I, § 8 (see Davis v. Monroe County Bd. of Ed.). Thus does the federal government assume control in an area the founders left to local authority.
In October 2010, the Department’s Office for Civil Rights (OCR) announced its intention to aim these civil-rights statutes at schools that mishandle (in its view) student interactions. Decrying a supposed “pandemic” of bullying and harassment, OCR issued what is known in the bureaucracy as a “Dear Colleague Letter” to warn schools about potential civil-rights liability in such cases. Now, every teacher who addresses the everyday complaints of one student about another must fear being second-guessed by a bureaucrat in Washington. It is difficult to imagine a more inappropriate intrusion of federal authority into a manifestly local issue.
The OCR Letter’s Conflict with Current Federal Law
A particularly obvious problem with the Letter is the breadth of its definitions. Harassment, it says, “may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones and the Internet; or other conduct that may be physically threatening, harmful, or humiliating.” The government website fleshes this out: bullying includes “name-calling, teasing, spreading rumors, leaving people out on purpose, [and] breaking up friendships.” In other words, the federal definition of bullying includes much of what occurs in every school every day, and has since the advent of schools. The government presumes to hold schools accountable—through the threat of lost funding—if they do not stop it.
Another fundamental problem with the Letter is its inconsistency with Supreme Court authority. In Davis v. Monroe County Board of Education, the Court ruled that a student may recover damages from a school under Title IX for sexual harassment by another student, but only under very limited circumstances: school authorities must have been deliberately indifferent to, although they had actual knowledge of, harassment that was so severe, pervasive, and objectively offensive that it deprives the victim of access to educational opportunities or benefits. The Letter’s conflicts with this standard are several:
- The Letter changes the phrase “severe, pervasive, and . . . objectively offensive” to “severe, pervasive, or persistent.” The altered conjunction is significant: whereas the Davis Court required that all three conditions be met before liability would attach, OCR allows liability if any one of the three is present. Thus, as the dissenters to a U.S. Commission on Civil Rights “bullying” report warned, “schools can be in violation of Title IX based on a single student act if the government believes it is sufficiently severe.” This result was never contemplated by Davis.
- The Letter removes the requirement that the conduct be “objectively offensive” to justify liability. This change appears to eliminate the “reasonable person” standard, so that a school could lose federal funding for disregarding conduct that seemed harmless to the objective observer.
- Although Davis allows liability only for harassment that “deprive[s] the victims of access to educational opportunities or benefits,” the Letter changes “deprives” to the more expansive “interferes with.” This change in terminology broadens schools’ potential liability beyond the Davis limits.
The Letter changes the Davis holding that there is no liability unless a school had “actual knowledge” of the misconduct. OCR says instead that the school may be liable if it “knows or reasonably should have known”—a much broader standard than that applied by Davis. The OCR Letter also expands potential liability beyond school grounds. Davis emphasized that the school could be liable only for harassment that occurred during school hours and on school grounds; other courts have similarly refused to sanction a school based on off-campus misconduct (see Lam v. Curators of the Univ. of Missouri at Kansas City Dental School). But the Letter obviously contemplates holding schools accountable for such behavior, especially in its reference to Internet-based misconduct. Unkind remarks posted on Facebook late at night may be distressing to a student, but is it fair to hold a school accountable for them?
In expanding potential liability so far beyond that allowed in Davis, OCR assumes the authority to reinterpret the governing statutes (primarily Title IX and Title VI). As Professor John Eastman has pointed out, an administrative agency has only limited authority to interpret statutes, especially when the Supreme Court has already done so and has reached different conclusions. So a school targeted by OCR may ultimately prevail in court, but the risk and expense of protracted litigation may (as OCR perhaps intends) force it to submit without a fight.
In addition to the inconsistency with Davis, the OCR Letter expands the coverage of the federal statutes beyond their clear terms. The statutes do not cover discrimination based on sexual orientation or religion, yet the Letter purports to include harassment bases on these nonstatutory characteristics. The legal basis for extending the sanctions to sexual-orientation harassment is at least colorable (by labeling it “sex stereotyping”); this is not true of harassment based on religion. Nevertheless, OCR now appears ready to crack down on schools that allow students to express opinions about, say, the connection between Islam and terrorism.
The OCR Letter’s Conflict with the First Amendment
OCR’s sweeping prohibition of “harassment” and “bullying” carries serious First Amendment implications. May a student express a negative opinion of illegal immigration, or could that be prohibited as harassment toward Latino students? May a boy argue in a public-speaking class that women should not be allowed in combat, or could that be prohibited as harassment toward female students? Troubling hypotheticals abound.
The OCR Letter dismisses the First Amendment problem in a single reference: a two-sentence footnote. That allotment of space crystallizes the level of regard OCR apparently has for freedom of speech.
A school’s regulation of student speech comports with the First Amendment only when (with minimal exceptions) the speech would substantially interfere with or disrupt the work of the school or the rights of other students (Tinker v. Des Moines Independent Community Sch. Dist.). “The Supreme Court has held time and again . . . that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it” (Saxe v. State College Area Sch. Dist.).
Under this standard, OCR’s attack on what it labels harassment or bullying potentially conflicts with the First Amendment. At a Civil Rights Commission hearing held in May 2011, government witnesses insisted that OCR is focusing only on unprotected conduct involving physical threats or creating a reasonable fear of physical harm. But commentators such as Professor Eugene Volokh have refuted this, noting that the Letter’s sweeping language reaches even purely verbal acts well beyond those that can be regulated under Davis and Tinker. At the Commission hearing, no OCR witness denied that the Letter means exactly what it says.
To date, courts have held that even offensive student speech may be protected by the First Amendment. (See Saxe v. State College Area Sch. Dist. and DeJohn v. Temple Univ., both striking down overly broad school “discrimination” or “harassment” policies.) So, a school that defends against OCR action on First Amendment grounds may very well prevail in court. But again, OCR appears to be betting on schools’ unwillingness to risk federal funding and devote extensive time and resources to litigation. First Amendment jurisprudence has a term for this: “chilling effect.”
One aspect of the OCR letter that deeply implicates the First Amendment is the prohibition of “harassment” based on sexual orientation (known as LGBT—lesbian, gay, bi-sexual, and transgendered). By expressing his belief, based on religious faith, that LGBT conduct is immoral, a student exercises his First Amendment rights both to freedom of speech and to freedom of religion. But if an LGBT student takes offense, would OCR respect the speaker’s First Amendment rights? Unlikely. More likely to prevail is the attitude expressed by U.S. Civil Rights Commissioner (and former Pelosi advisor) Michael Yaki, who argues that “government action to stop bullying in schools, particularly bullying against LGTB or LGTB-identified children, [should] be given substantial deference with regard to competing First Amendment concerns.”
Thus does the Obama Administration achieve two goals: it extends the tentacles of federal control more deeply into the day-to-day operations of schools, and it bans the expression of religious and cultural attitudes disfavored by government elites.
The Practical Effect of the OCR Letter
Instructed that “bullying” may be second-guessed by federal bureaucrats with a political agenda, the most likely response will be similar to the “zero tolerance” overreaches that prevailed after high-profile school shootings. Schools are likely to shut down, to the extent possible, all discussion of controversial topics that might offend, and to overreact to every complained-of slight. Expect also the flowering of additional bureaucracy at every level of educational administration, and, as has already begun, marketing of pricey packages designed to train teachers and administrators to prevent kids from acting like kids. And expect students to view teachers and administrators with diminished respect—since the government has pre-judged them as incompetent.
What effect will this bureaucratization have on children? New York psychotherapist Israel Kalman argues that the governmentalizing of responses to bullying actually harms children—even (perhaps especially) those who are the victims. According to Kalman, children must learn how to handle meanness from others and will suffer later in life if they miss these lessons. The better approach is to teach victims how to parry a bully’s thrusts rather than encourage them to run to the principal (which, as any former child knows, guarantees even more mistreatment from the bully). If they learn how to stand up for themselves, they are less likely to be bullied again and more prepared for the real world.
The Obama Administration justifies its obsession with bullying by claiming that the incidence of such misconduct has reached a “pandemic” level. It cites “research” such as an American Association of University Women study, reporting the percentage of eighth- through twelfth-graders who have been sexually harassed during school at a manifestly preposterous 81 percent. But a study funded by the Justice Department and released in 2010 found a sharp drop in the percentage of students who reported being bullied or harassed. Other researchers have made similar findings. So what is going on here?
The unspoken truth behind OCR’s “bullying” campaign is that it is directed primarily at speech critical of government-favored constituencies, such as homosexuals. The Obama Administration has embraced the mission of radical gay-rights groups to propagate full acceptance and affirmation of LGBT lifestyles. The goal is to delegitimize, and ultimately outlaw expression of, orthodox religious beliefs relating to marriage and sexual behavior. Viewed through this lens, OCR’s anti-bullying campaign is worse than silly—it’s dangerous.
Parents should recognize this new federal takeover for what it is, and insist that their legislators rein in OCR’s assault on freedom of speech and belief. Teachers and principals must be allowed to do their jobs and be accountable to parents—not to distant bureaucrats enforcing a political agenda.
Emmett McGroarty, Esq., is Executive Director of the Preserve Innocence Initiative at the American Principles Project. Jane Robbins, Esq., is a Senior Fellow with the American Principles Project.
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