This bill, the Dignity for All Students Act, has as its legislative intent to provide students in public elementary and secondary schools an educational environment free of discrimination and harassment.

The bill would specifically prohibit discrimination and harassment, including "verbal threats intimidation or abuse," based upon a person's race, color, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex."

This prohibition would apply to school employees and students when on school property or at a school function. The bill articulates a broad policy initiative that provides for the promulgation of regulations, policies, and guidelines intended to foster a learning environment free of bias and discrimination.

These policy and practice guidelines encompass instructional and counseling methods, as well as procedures and remedies for handling incidents of harassment.

The NYCLU strongly endorses the Dignity for All Students Act. The bill recognizes that as a matter of public policy, the state has a role in promoting respect for diversity in the school setting, and in fostering a learning environment that is free of bias and discrimination.

We note, however, for the legislative record, that upon a review of an earlier draft of this legislation, the NYCLU raised concerns that in seeking to prevent what the bill defines as "harassment," lawmakers and educators must not penalize speech and other forms of expressive conduct to which students, even in the lower schools, have a constitutional right. The bill, for example, seeks to discourage discrimination and bias in the educational setting, and to promote "civility."

Harassment, however, is something very different from incivility. It would be counterproductive, not to mention a violation of students' constitutional rights, if schools were to interpret the prohibition of harassment so broadly as to proscribe the open and robust exchange of ideas and opinions that is vital to the educational process.

In the final draft language the sponsors have addressed this concern by adopting a definition of harassment that is derived from the "hostile environment" concept developed by the courts in the employment context.

In so doing, the sponsors of this bill have appropriately sought to exclude from the definition of harassment speech and expression that are entitled to First Amendment protection – a distinction that is well defined in the court rulings on discrimination in the employment context.

To make a finding of harassment, as it is now defined in this bill, would require a showing of a hostile environment, caused by conduct or by verbal threats, intimidation or abuse, that "unreasonably and substantially" interfere with a student's educational performance or opportunity.

It is implicit in this definition that discriminatory speech or conduct must be of a certain severity to have the effect of substantially disrupting a student's education; or that such conduct must involve a pattern or series of harmful incidents whose pervasiveness has such an effect.

This bill does not adopt from the case law the "severe or pervasive" language just cited; however as a practical matter the "substantial interference" standard would require either a single, severe discriminatory act or a number of discriminatory acts that are so frequent, or pervasive, that they have an equivalent harmful effect.

The harassment definition also requires that the prohibited conduct or speech "unreasonably" interfere with a student's education. While this definition is not artfully drafted, it would seem to require that the objectionable conduct or expression must interfere with a reasonable student's educational opportunity or performance.

The foregoing gloss on the definition of harassment is provided so that the legislative record includes a clear statement regarding the NYCLU's interpretation of the protections that the bill affords speech and expression in the educational setting.

And we would urge that in promulgating policies and guidelines pursuant to this bill, the board of education and school officials ensure that they give clear and explicit recognition to the rights of speech and expression to which students are entitled under the Constitution.

In conclusion, the NYCLU reiterates its strong support for this bill's objectives and intent. We find it appropriate that in seeking to define what constitutes harassment in the school setting, the bill imports the "hostile environment" analysis from the employment law context.

In making reference to the legal concept of a hostile environment and in tracking the courts' interpretation of this concept, the sponsors of this bill have clearly sought to balance the interest in discouraging bigotry with the interest in protecting students' rights of speech and expression.

(And we note that to suggest independent rights may be in tension is not to question the importance or validity of those rights.) The NYCLU believes this careful balancing of interests is required by the Constitution.

The NYCLU offers these comments in support of the Dignity for All Students Act, and we urge that legislators pass the bill.  

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O'Donnell, Duane

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