School Districts in Many States Would Violate the Law if They Adhered to New Guidance Issued by the Alliance Defending Freedom and Endorsed by Focus on the Family
[Update: A 9/20/12 post explains further why the guidance in the "Yardstick" touted by anti-gay groups is simply terrible. ]
The Alliance Defending Freedom has created a new “Anti-Bullying Policy Yardstick” with various recommendations for “good” school anti-bullying policies, but the organization fails to mention that its guidance cannot lawfully be implemented in thousands of school districts across the country. Focus on the Family endorses the guidance.
Among other legal problems, the new Yardstick discourages policies that enumerate particular characteristics as prohibited bases of discrimination and bullying. In other words, it discourages schools from specifically addressing bullying “on the basis of” traits like race, sex, sexual orientation or gender identity. ”[A] good policy,” the Yardstick states, “does not prohibit bullying based on certain characteristics.” What’s wrong with this advice? As an initial matter, what the Yardstick calls “good” is also illegal in much of the country: A growing number of states (plus D.C.) require school districts to enumerate specific characteristics in their anti-bullying policies, including sexual orientation and gender identity. On this basis alone, the Yardstick’s guidance cannot lawfully be followed in literally thousands of the nation’s school districts. (At least two states, unfortunately, prohibit enumeration.)
Aside from its serious legal deficiencies, the Yardstick is also misleading in how it describes enumeration. The Yardstick explains, for example, that instead of enumerating particular characteristics, a “good policy” will ban “all bullying so that every student” is protected. This presents a false choice, and wrongly suggests that enumeration necessarily limits rather than expands a policy’s scope. Of course, schools should prohibit bullying regardless of the reasons behind it. But school districts can also–and in many states, must–make clear that prohibited conduct includes bullying based on traits like race, sex, religion, sexual orientation and gender identity. This approach–enumerating specific types of prohibited conduct as part of a broader anti-bullying policy–has numerous benefits: It helps to ensure, for example, that administrators, faculty and staff respond to particular types of conduct (like anti-LGBT bullying) that are often overlooked or inappropriately addressed despite their pervasiveness and severity.
The Yardstick’s advice also falsely suggests that to the extent a policy enumerates “certain characteristics” (like sexual orientation and gender identity), the policy does not protect “every student.” Any student, however, can be the target of bullying based on actual or perceived sexual orientation or gender identity (and it’s worth emphasizing here that anti-bullying laws tend to include words like “actual or perceived”).
Sadly, this post only begins to describe the flaws with the Yardstick. For additional criticisms, see this post by Zack Ford at Think Progress, and stayed tuned for more comments on this blog.
P.S. As this website/blog’s Disclaimers section explains, nothing on this website/blog constitutes legal advice. School districts looking into their state’s specific requirements with respect to anti-bullying policies should consult an attorney in their jurisdiction. (Speaking of which, the Yardstick would have benefited from a disclaimer like this one.)