Antiharassment Policies - Education LawHistorically, many school administrators and teachers perceived peer harassment as normal adolescent behavior that did not pose any substantial threat to student safety. However, in recent years, reports of peer harassment in secondary schools have risen to alarming levels. According to a study released by the National Institute of Child Health and Human Development, each year approximately 30% of students in Grades 6 to 10 are involved in peer harassment as a victim, harasser, or both. The heightened presence of peer harassment in secondary schools is of great concern to parents and educators.
Peer harassment in public schools can have devastating effects on the lives of student victims, who often experience depression or a decline in academic performance, and some of whom commit suicide. Peer harassment in schools varies in scope and type, from bullying other students for their lunches in the school cafeteria to pervasive peer sexual harassment. Incidents of school violence, such as the shootings at Columbine High School and Virginia Tech, illuminate the serious and sometime deadly consequences of peer harassment. In both these school shootings, the perpetrators were reportedly victims of bullying or harassment by their peers at some point during their schooling. Highly publicized school shootings such as these have served as a catalyst for bullying prevention programs in America’s schools and for the emergence of parent advocacy groups, such as Families Against Bullying.
As a general rule, schools can be liable for failing to protect students from any form of peer harassment. This is evident in the Supreme Court’s opinion in Davis v. Monroe County Board of Education (1999), in which the justices determined that public school boards that are the recipients of federal financial assistance may be held liable for peer harassment under Title IX if school officials who are in a position to remedy the situation, and who are in situations in which they have substantial control over the harasser and the victim, act with deliberate indifference to harassment. Moreover, in order to be liable, the harassment must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit (p. 650).” Following Davis, a growing number of cases have rendered school officials, and their boards, liable for failing to protect students from harassment.
As more student victims continue to hold schools accountable for failing to prevent peer harassment, it is imperative that schools take the necessary measures to promote a harassment-free learning environment. States such as New Jersey and Vermont have responded to the increased pace and scope of peer harassment in secondary schools by enacting antibullying laws, which require school leaders to develop policies that prohibit harassment in public schools. The primary purpose of antiharassment policies is to deter peer harassment, teach students socially appropriate behavior, and reduce school liability risks by establishing a uniform system for schools to address harassment when it occurs.
Although the legislative intent behind the creation of antibullying laws is to promote supportive learning environments free of harassment, many schools’ antiharassment policies have been met with stark criticism due to the belief that some policies violate students’ First Amendment rights. For example, in Saxe v. State College Area School District (2001), the Third Circuit struck down an antiharassment policy from a district in Pennsylvania that prohibited “unsolicited derogatory remarks, slurs, jokes, demeaning behavior or comments, mimicking, name calling, graffiti, innuendo, gestures, threatening, or bullying (p. 203)” as unconstitutional. Relying on the landmark Tinker v. Des Moines Independent Community School District (1969), the court concluded that the overly broad language within the policy prohibited a significant amount of student speech protected by the First Amendment.
School administrators responsible for drafting antiharassment policies face a daunting task as they attempt to navigate their way through First Amendment jurisprudence, an area of law deemed challenging even by trained attorneys. While the Supreme Court clearly delineated in Tinker that school officials may limit student speech or conduct that they reasonably believe is likely to cause a substantial disruption of the schooling environment, greater clarity is needed regarding the extent to which school officials may limit harassing student expression within the boundaries of the Constitution. Despite the challenges associated with creating antiharassment policies that can muster constitutional scrutiny, the effort is worth the end result, which is a safe, harassment free learning environment for children.
Laura R. McNeal
See also Bullying; Davis v. Monroe County Board of Education; Free Speech and Expression Rights of Students; Sexual Harassment, Peer-to-Peer; Tinker v. Des Moines Independent Community School District; Title IX and Sexual Harassment
Baker, T. R. (2002). Tinkering with Tinker: The Third Circuit’s over breadth test for school anti-harassment codes. West’s Education Law Reporter, 164, 527–549.
Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001).
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).