Without defining how many students constituted “some,” or indicating if racially driven incidents were pervasive enough to justify students’ safety fears, OCR simply goes on to assert that school officials failed to “acknowledge the pattern of harassment as indicative of a racially hostile environment in violation of Title IV.” In addition, the letter states that “the nature of the harassment, the number of incidents, and the students’ safety concerns demonstrate that there was a racially hostile environment that interfered with the students’ ability to participate in the school’s education programs and activities.”
This is textbook Monday‐morning quarterbacking, in the form of a hypothetical — and therefore very simplified — example. According to the scenario, prior to the fights, which appear to be OCR’s proof that the school failed to miss a pervasive problem, all school officials had to work with were “some students” — we don’t know how many — saying and writing racially insulting things, and “some” African‐American students — who might just be a small number who had had run‐ins with a very few bigots — saying they did not feel safe at school. In a school of, say, 1000 students, having perhaps as few as three victims and three violators does not make it at all clear that a school has an overall “racially hostile environment” on its hands.
Unfortunately, based on this example, the evidence as school officials are actually presented with it doesn’t seem to matter to OCR. If, using twenty‐twenty hindsight, it is discovered that school officials missed a problem that turned out to be bigger than they reasonably concluded it was based on the evidence they had, then they have violated federal regulations and, presumably, can be subjected to federal punishments. There is no room for professional judgment or considering potential subtleties — if things don’t end up right, officials are condemned.
The major problem stemming from such after‐the‐fact governance is clear: The strong incentive it gives school officials is to overreact to incidents that could even remotely be connected to group‐based harassment or bullying, even if they are not. Indeed, to fully protect themselves, schools would have to set rules that prohibit any behavior that could ever be construed as contributing to a hostile environment, right down to mandating random selection for kickball teams and prohibiting any mentions of race, sex, or ethnicity by students whatsoever. In other words, schools are strongly encouraged to impose “zero‐tolerance” bludgeons for speech and student actions along the same lines as oft‐pilloried disciplinary policies that result in students being suspended for accidentally bringing butter knives,6 or ibuprofen,7 or lacrosse stick repair tools to school.8
Federalism Requires Restraint
While the 14th Amendment gives Washington authority to prohibit discrimination by states and local districts, education otherwise remains an area left to “the States” or “the people.” At the very least, that means the federal government under the 14th Amendment should only interfere with the operation of public schools if it is clear that discrimination is intentionally abetted or perpetrated by states. But the federal government does not take that position; it subjects states and districts to its rules as a matter of course, often as a requirement to receive federal funds which, importantly, came from state and local taxpayers to begin with. In addition, federal legislators often seek federal remedies for bullying or harassment regardless of whether or not states are guilty of perpetrating or abetting systematic discrimination, or are taking their own steps to address discrimination.
There is, in fact, considerable evidence that states are addressing bullying on their own. In response to the bullying and subsequent suicide of Phoebe Prince, in 2010 Massachusetts passed legislation banning bullying in all school activities and requiring that every incident be investigated and reported to the parents of the students involved. Last week the Colorado Senate passed anti‐bullying legislation, sending it to the Governor’s desk. The Texas House also just passed such legislation.
Of course, there will be disagreement over whether any given state’s legislation does too much, too little, or is just right. But that is because what is the “right” way to handle bullying — especially in light of free speech and equal protection concerns — is far from a settled matter, which is all the more reason that the federal government should be very reticent about acting even if it has the authority to do so. In keeping with the genius of the American federal design, it is better to let fifty states experiment with different remedies than to impose one on all Americans. That allows numerous potential remedies to be tried, and prevents a poor — or even dangerous — one from being imposed on the entire nation.
The Solution Isn’t Centralized Control, It is Major Decentralization
Just as it is better that 50 states — or 14,000 school districts — be able to set their own policies than have one federal “solution,” best of all would be, at the state and local level, to give all parents the ability to choose any school they wish, public or private, without having to sacrifice the taxes they have paid to support education. As a corollary, educators and schools should be given the freedom to set their own bullying and harassment policies in order to try new arrangements and maximize options for parents and students.
The primary benefit of this is it would allow substantial movement within the great gray area that exists between bullying and freedom of expression, while also letting the proverbial thousand flowers bloom. To illustrate the importance of this, while some students might very well have felt uncomfortable, even threatened, by Tyler Chase Harper’s t‐shirt, others might have fully supported his point of view. Still others might have just supported his right to express that view. Under the current system, however, one side had to lose: Either Harper’s speech rights had to be compromised by the Poway schools, or those who felt intimidated had to have their learning compromised by an environment they found threatening.
With full choice, such a win‐lose outcome would almost certainly have been avoided: There would likely have been a multiplicity of schools to choose from, and each school would likely have stated its speech and bullying rules. Students and their parents, then, who favored expansive student expression could have chosen schools that embrace that; parents and students who disliked intolerant speech could have chosen institutions that curbed it; and government, critically, would not have been in the ultimately intolerable position of deciding whose rights are upheld and whose aren’t.
Interestingly, not only would greater choice allow people to decide where they want a school to draw the line between expression and harassment, it appears that private schools might be better able — or more willing — to control bullying. According to the most recent federal study of school crime and safety, “a higher percentage of public school students than private school students reported being called a hate‐related word (10 vs. 6 percent) and seeing hate‐related graffiti (36 vs. 19 percent).“9
There are many possible explanations for these numbers, but three stand out.
The first is that because private schools can punish students without regard to students’ free speech rights — parents choose private schools and the schools are not government entities — they can set very clear, definitive rules on bullying, and punish violators swiftly. In addition, parents often choose such schools knowing what the rules are and accepting — often wanting — them, which ultimately renders discipline much less contentious than it would be if “imposed” by government authorities.
The second possible explanation is that private schools are often chosen by people with similar backgrounds or values, and hence the student bodies contain much less potential for conflict than in many public schools.
Finally, it is quite possible that private schools are less infected with bullying and harassment because they need to earn the business of parents — unlike public schools, they don’t get paid no matter what — which gives them powerful incentives to nip abuse in the bud.
Critically, because outside of jurisdiction over the District of Columbia and federal installations the Constitution gives Washington no authority to govern education, Washington cannot impose or materially encourage private school choice in states or districts. It can, however, cease funding public schooling, which reinforces the government system that is inherently one‐size‐fits‐all, and that is congenitally unable to balance competing values like speech rights and school safety. The USCCR, as a result, should encourage removal of the federal government from funding and regulation of education, and should advise states to implement universal school choice as the primary means to combat bullying and harassment while upholding speech rights.
Bullying and harassment in school is ugly and unacceptable. But treating people unequally under the law, or quashing free speech rights, in the name of combating these evils is even more repugnant, violating the most basic of individual rights. Unfortunately, that is what the federal government has been doing and appears poised to continue to do. If the Commission values individual liberty — the very bedrock of American society — it will recommend against continuing these policies and instead champion educational freedom for all.
1 U.S. Department of Education, Office of Civil Rights, “Dear Colleague Letter: Harassment and Bullying,” October 26, 2010, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.
2 H.R. 998, 212th Cong., 1st sess.
3 S. 540, 212th Cong., 1st sess.
4 Onell R. Soto, “U.S. judge is pressed for ruling on T‐shirt,” San Diego Union‐Tribune, May 27, 2006.
5 Several similar conflicts were being fought in just the 2005-06 academic year, as itemized in Neal McCluskey, “Why We Fight: How Public Schools Cause Social Conflict,” Cato Institute Policy Analysis no. 587, January 23, 2007.
6 Chris Francescani, “Expelled for Possession of a Butter Knife,” ABC News, October 22, 2010, http://abcnews.go.com/TheLaw/story?id=3758286.
7 Maia Szalavitz, “Mother and Daughter Arrested for ‘Dangerous Drug’ Ibuprofen,” Time, December 16, 2010, http://healthland.time.com/2010/12/16/mother-and-daughter-arrested-for-dangerous-drug-ibuprofen/.
8 Liz Bowie, “Two Easton lacrosse players suspended under zero‐tolerance policies,” Baltimore Sun, May 10, 2011, http://articles.baltimoresun.com/2011–05-10/news/bs-md-co-lacrosse-discipline-20110509_1_zero-tolerancepolicies-lacrosse-players-school-board.
9 U.S. Department of Education and U.S. Department of Justice, Office of Justice Programs, Indicators of School Crime and Safety: 2010, November 2010, p. 38, http://nces.ed.gov/pubs2011/2011002.pdf.