In an August 31 post called New “Anti-Bullying Policy Yardstick” Disregards the Law, I criticized a new “Anti-Bullying Policy Yardstick“ that gives guidance to school districts about what kind of anti-bullying policies to enact. The Yardstick was created by the anti-gay group Alliance Defending Freedom (formerly known as the Alliance Defense Fund) and endorsed by another anti-gay group, Focus on the Family. My post lambasting the Yardstick ended up being one of the most popular posts over the last several weeks, so I’m writing this follow-up post to explain a little more about what’s wrong with the Yardstick.
This post’s title and photo suggest throwing the Yardstick in the trash, but I’m actually (half) joking. The Yardstick might be useful—NOT as a policy guide of any sort, but as a reference document to help remind you of anti-LGBT groups’ common, misleading talking-points.
So here are some more serious problems with the Yardstick—in addition to those noted in the August 31 post.
(1) The Yardstick Misunderstands the Relevance of Mental Harm and Emotional Distress—and Disregards the Law
The Yardstick says that school anti-bullying policies shouldn’t include “vague and overbroad terms” like “emotional distress,” “offensive” and “mental harm” in describing what counts as prohibited harassment. The Yardstick’s authors apparently worry that schools will, in an effort to protect bullied students, end up prohibiting too much expression. It’s certainly true that schools shouldn’t prohibit speech for the sole reason that a student claims to find it emotionally upsetting, offensive, or mentally harmful. Such a policy could be subject to abuse: Students could claim that perfectly reasonable speech is upsetting and offensive to them—and could therefore prevent their classmates from speaking their minds. But the Yardstick makes at least two fundamental mistakes in advising schools not to ever include terms like “emotional distress,” “offensive,” or “mental harm” in a school anti-bullying policy.
The first mistake here is that the Yardstick assumes that including words like “emotional distress,” “offensive,” and “mental harm” will necessarily lead to a broader policy than a policy that omits these phrases. To see why this is wrong, imagine a policy that defines bullying to include “persistent expressive conduct that is (1) likely to cause a reasonable person mental harm or emotional distress and (2) likely to interfere substantially with a student’s education.” In this example, including phrases like “mental harm” and “emotional distress” has a narrowing effect; that is, the phrases make the overall policy less likely to encompass any particular expression. If a student repeatedly says something offensive, it still won’t be covered under this definition unless a reasonable person would believe that the speech would likely interfere with a student’s education and would likely cause mental harm or emotional distress. The point of this example is not that this is a perfect or even advisable policy; the point is just that we shouldn’t simplistically assume (as the Yardstick authors do) that phrases like “emotional distress” and “mental harm” will necessarily make a policy too broad.
The Yardstick’s second big mistake on this point is that in some states, the law requires that schools define harassment using phrases like “emotional distress.” For example, Tennessee requires schools to prohibit harassment, and state law defines harassment to include, among other things, on-campus conduct that “substantially interferes with a student’s educational benefits, opportunities or performance” and causes “emotional distress to a student or students” (emphasis added). So schools in Tennessee (among many other places!) can’t lawfully follow the Yardstick’s guidance about writing anti-bullying policies.
(2) The Yardstick Repeatedly Misstates What Kind of Expression Schools May Constitutionally Prohibit—and Again Disregards the Law
The Yardstick says that a “good” anti-bullying policy will only prohibit harassing speech or expression “that courts have traditionally treated as unprotected [under the Constitution] in the school context.” So far, this makes sense: The Yardstick is saying that if the Constitution’s free-speech provisions protect a student’s right to say something, schools can’t prohibit that expression just by calling it “harassment.” The problem, though, is that the Yardstick mis-identifies what kinds of expression are constitutionally “unprotected.” It says that schools can only ban expression if the expression (1) is “lewd, indecent, obscene,” (2) “advocat[es] illegal conduct,” (3) is “intended to incite an immediate breach of the peace,” or (4) involves “severe, persistent, and pervasive use of threatening words that objectively inflict injury.”
This list correctly identifies some forms of expression that are not constitutionally protected in school (like obscenity), but the list sets the bar too high when it comes to expression that constitutes harassment. That is, the Yardstick’s guidance about “unprotected” speech would too strictly limit a school’s ability to prohibit harassment. Contrary to what the Yardstick suggests, school officials can also prohibit student expression, regardless of whether it falls into one of the above-listed categories, if there’s a reasonable basis to think that a student’s expression will cause a substantial disruption to the school or to other students’ education. And school officials can get sued and may be held financially liable under federal law—and some state laws—if they turn a blind eye to severe student-on-student harassment based on sex or gender stereotypes. So the harassment doesn’t necessarily have to involve “threatening words,” “obscenity,” or other things in the Yardstick’s list in order for a school to ban it.
Finally, states with anti-bullying laws (almost all states) tend to provide detailed definitions about what kinds of conduct, including expressive conduct, schools must prohibit. School officials need to consult with an attorney in their area to make sure they comply with those state laws.
(3) The Yardstick Mischaracterizes the Importance of Looking at Intent—and Yet Again Disregards the Law
The Yardstick says a good anti-bullying policy will avoid “any consideration of the motive or intent of the alleged bully” (emphasis mine). To see why this is bad advice, imagine a school district where officials are aware that students tend to be intolerant or simply misinformed about a particular minority or group of students. For example, school officials might be aware that students are misinformed about or intolerant of, say, transgender students, or conservative Christian students, or Hispanic students, or disabled students. Or maybe school officials become aware that many male students don’t understand that certain kinds of conduct amount to sexual harassment of their female classmates. Should a policy require school officials and teachers to address this problem in part by educating students and explaining to them why the harassing conduct is hurtful and wrong? According to the Yardstick, no. After all, to take into account the root of the problem would be to consider “the motive or intent” behind the bullying, which the Yardstick says is “bad.”
In fact, the Yardstick specifically warns against “attempts to ‘re-educate’ students and to help them ‘think’ or ‘believe’ the ‘right thing.’” But what’s wrong with educating (even “re-educating”!) students so that they understand that prohibited harassment includes harassment based on gender, religion, ethnicity, race, disability, and sexual orientation? In a school where, for example, anti-gay harassment runs rampant, what’s wrong with explaining to students that targeting classmates for harassment because of perceived sexual orientation is harmful? Wouldn’t acknowledging the root of the problem be more effective than turning a blind eye to the “motive or intent” that helps create the dangerous environment?
A refusal to take bullies’ motive or intent into account may also violate the law in about a third of states, as I explained in more detail in my August 31 post. So yet again, following the Yardstick’s advice could lead schools to violate the law.
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The Yardstick is such a thoroughly and disastrously misinformed document that, even with my two posts about it, I still haven’t covered everything that’s wrong with it. Following the Yardstick’s advice can very easily lead to ineffective, counterproductive, and possibly illegal anti-bullying policies.
For more information about anti-bullying policies, see my original post, and check out the information at www.stopbullying.gov, as well as the information available through GLSEN’s website at www.glsen.org.
And please keep in mind that none of what I’m saying here amounts to legal advice: School districts looking to design an anti-bullying policy need to consult with a local attorney to make sure they comply with the law, which can vary widely depending on the state and locality.