Guidelines seek to distinguish between free speech, bullying

WASHINGTON (RNS)—When Sally tells Billy he's going to hell for believing in a false religion, is Sally exercising her First Amendment right to free expression, or is Billy getting bullied?

A broad coalition of educators and religious groups—from the National Association of Evangelicals to the National School Boards Association—endorsed a new pamphlet to help teachers tackle such thorny questions.

A coalition of religious and civil rights groups released guidelines to balance two occasionally conflicting interests: students' rights to free religious expression and their rights to remain safe from discrimination and bullying. (RNS PHOTO/Courtesy iStock Photo)

Drafted chiefly by the American Jewish Committee, "Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools," contains 11 pages of advice on balancing school safety and religious freedom.

"There are those who believe that we can't have restriction on bullying and protect free speech. Conversely, there are those who think that the rules against bullying are so important that they trump any concern for free speech," said Marc Stern, the AJC's chief counsel and lead author of the pamphlet. "The organizations that have joined in these guidelines believe that that's a false choice."

Other groups endorsing the pamphlet include the Christian Legal Society, Muslim Public Affairs Council, the American Association of School Administrators, the Hindu Amer-ican Foundation, the Islamic Society of North America, the Religious Action Center of Reform Judaism and the Union of Orthodox Jewish Congregations.

However, the Anti-Defamation League, a Jewish civil rights group, criticized the new bullying guidelines for suggesting that bullying occurs in the aftermath of disagreements over political or religious speech. What actually happens most frequently, the ADL insisted, is "the intentional targeting of an individual with less physical or social standing for physical, verbal and emotional abuse."

To the ADL, the pamphlet sends mixed messages and contradicts state laws and federal guidelines on bullying by emphasizing students' First Amendment rights over schools' responsibility to provide a safe learning environment for all students, especially those who may be particularly vulnerable to bullying.

A national conversation on bullying that began about a decade ago has been punctuated in recent years by the highly publicized suicides of harassed gay students, and Bully, a new documentary on the subject.

Now the federal government, 49 states and the District of Columbia have anti-bullying policies in place, noted Charles Haynes, director of the nonprofit Washington-based Religious Freedom Education Project/First Amendment Center, which funded the pamphlet.

And while cases in which these rights conflicts in schools are rare, they do happen.

"There have been recently in the news some situations in which anti-bullying policies have been used to punish Christian students for expressing their personal religious beliefs while at school," said Kim Colby, senior counsel of the Christian Legal Society.

Colby cited the case of a Fort Worth high school student last year. In German class, Dakota Ary said he believed homosexuality is wrong and got suspended for it. His teacher had called the comment an instance of possible bullying. Ary's suspension later was reduced.

"Each side to this debate can cite horror stories," Stern said. He hopes the pamphlet will give educators a framework to avoid the horror stories and teach students how to express themselves civilly in a democratic society.

The pamphlet can fill a need the judicial system has not, said Francisco M. Negron, general counsel to the National School Boards Association.

"It talks about the difference between what constitutes a personal attack and the expression of an idea," said Negron.

The pamphlet is based on current law governing speech rights and public schools. Private schools have far more leeway in regulating student speech.

Generally, though, giving students more, not fewer, opportunities to express themselves tends to dampen the most noxious speech, Haynes said.

"Most of the time you have problems when schools try to censor the kids from saying anything," he said. "When they're given an opportunity to be civil about their views and to have a forum that is theirs, in my experience, most students take that very seriously and are very responsible."

Some excerpts from the pamphlet:

• "Words that convey ideas are one thing; words that are used as assault weapons quite another."

• "Repeatedly bombarding a fellow student with otherwise protected speech, even if it ostensibly conveys an idea, can also constitute harassment."

• "Schools themselves are free to communicate in a noncoercive way their own views on subjects that generate controversy in the community."