Wendy Kaminer on Bullying, Harassment, and Free Speech

By March 24, 2011

In a new blog entry for The Atlantic, author, lawyer, and FIRE Board of Advisors member Wendy Kaminer takes on a recent "Dear Colleague" letter sent from the Department of Education’s Office for Civil Rights to school administrators across the country last October. Noting that the letter "provides a definition of actionable harassment considerably broader than the definition supplied by the Supreme Court some ten years ago" in Davis v. Monroe County Board of Education, Kaminer writes:

[T]he Court limited school liability in private-damage actions to the most grievous cases in which school officials displayed "deliberate indifference to known acts of harassment … so severe, pervasive, and objectively offensive that it effectively bars the victims’ access to an educational opportunity or benefit." The Court added that actionable harassment would generally involve persistent, repeated misconduct, not simply one offensive incident.

Compare the Court’s approach here to the administration’s definition of harassment.  According to OCR’s letter, the alleged misconduct need not be repeated; it may involve one incident and it need only be "sufficiently severe, pervasive, or (not "and") persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities or opportunities offered by a school." Harassment need not even include "intent to cause harm" and need not "be directed at a specific target." In other words, schools could conceivably be liable for innocent, non-severe, non-pervasive, undirected "harassment," like teasing or controversial references to racial, ethnic, or sexual stereotypes. Finally, according to OCR, discriminatory harassment may merely "limit" student’s ability to participate in school; it need not "effectively bar" a student’s access, as the Court held; and there is no requirement that the harassing speech or conduct be deemed reasonable or "objectively offensive."

We share Kaminer’s concerns, and the whole entry is well worth your time. Check it out here.