Preventing Harassment and Protecting Free Speech in School

Document Date: June 15, 2003

Some opponents of safe schools policies argue that anti-harassment policies restrict students’ free speech. This piece explains how it’s possible to adopt policies that adequately address harassment and protect free speech.

School anti-harassment policies can effectively curtail harassment while respecting the free speech rights of students. A school that does both follows the law and provides a positive educational environment.

All students-including those who are lesbian, gay, bisexual, or transgender (LGBT)-have the right to attend school free of harassment and discrimination. Federal appeals court cases have found that schools must take steps to eliminate anti-LGBT harassment once they become aware of it.

But in rare instances schools with good intentions can go too far in addressing this problem. In 2001, a federal district court overturned a Pennsylvania school district’s anti-harassment policy because it was overly restrictive of student speech. That policy prohibited speech that did little more than cause hurt feelings. Preventing harassment does not require unnecessarily restricting free speech. In fact, harassment is less likely to occur in schools where ideas can be freely and respectfully exchanged.

School districts can prevent harassment and respect students’ First Amendment rights. It may sound complicated, but it’s not difficult to accomplish both. This piece explains the two obligations from legal and policy perspectives and why they are compatible.

As a matter of sound policy, schools should act to stop student harassment based on sexual orientation or gender identity

Student harassment frustrates the fundamental mission of every school: enabling students to learn. When any student is harassed, it jeopardizes his or her ability to learn. Studies have shown that LGBT students who are harassed are likely to perform poorly in class, abandon school activities, or even suffer physical injury. A recent study in Pediatrics found that more than 25% of the lesbian and gay teens surveyed had skipped school out of fear for their safety.

As a matter of sound policy, schools should respect the free expression rights of students

Censorship contradicts the essence of learning: an open exchange of ideas. Censorship of LGBT youth is particularly troubling, precisely because it contributes to the problem of student harassment based on sexual orientation and gender identity. Many school administrators feel that even the slightest acknowledgment that LGBT students exist-let alone that they are harassed on a daily basis-is too controversial for anyone in the school to discuss. Every school should encourage discussions that foster tolerance and respect for LGBT students.

Such policy considerations are not unique to expression concerning sexual orientation and gender identity; rather, they are universal, encouraging expression of all sorts of minority viewpoints.

As a matter of constitutional law, schools must act to stop student harassment based on sexual orientation or gender identity

A school that does not act to stop student harassment based on sexual orientation or gender identity risks legal liability. The United States Constitution imposes an obligation on schools to treat students equally, regardless of sexual orientation or gender identity. See Romer v. Evans, 517 U.S. 620 (1996). A school that does not act to stop student harassment based on sexual orientation or gender identity violates one of the most basic principles of constitutional law: equal protection of the laws. Federal courts have ruled that schools can be legally liable when they fail to protect lesbian, gay, bisexual, and transgendered students from harassment. See Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996); Flores v. Morgan Hill Unified Sch. District, 324 F.3d 1130 (9th Cir. 2003).

As a matter of constitutional law, schools must respect the free expression rights of their students

Students have a right to say what they think, even if what they say is offensive to others. See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969). For example, students have a right to speak out about their sexual orientation or gender identity, even if their ideas are unpopular or disagreeable.

Similarly, students have a right to speak out about their objections to lesbian, gay, bisexual and transgender people. For example, students have the right to voice opposition to civil rights for LGBT people in a classroom discussion as long as it’s relevant to the topic. Regardless of their point of view, however, students do not have a right to express themselves if such expression substantially interferes with the rights of a classmate. Students do not have the right to intimidate or attack other students because of their sexual orientation or gender identity.

The right to equal protection of the laws and the right to free expression are compatible

Schools have a responsibility to intervene when they know or suspect students are being harassed. One way to intervene is to punish. But, before punishing students, schools must draw a distinction between harassment and student expression that is protected by law. Harassment is conduct that substantially interferes with the education or physical or mental health of a student, or that threatens or intimidates a student. By punishing only these types of conduct, a school strikes the proper balance between two equally important and entirely compatible constitutional rights.

But schools do not need to wait to respond to conduct until it escalates to a point where it may be punished. Schools may respond to such conduct in ways other than punishment. In fact, they have a responsibility to do so. For example, if a teacher were to overhear a student directing a homophobic slur at another student, she would have a responsibility to explain why such language is inappropriate and harmful. The teacher should also point out that if such conduct continues, it could be subject to punishment. There is no better way to prevent student harassment than to educate students about why slurs and other harassing behavior are harmful.

The ACLU provides a model anti-harassment policy that can prevent harassment without violating student’s free speech rights.