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Testimony: Dignity for All Students Act

New York State Assembly Standing Committee On Education Public Hearing On “The Dignity For All Students Act” Testimony of the New York Civil Liberties Union by Marina Sheriff, Legislative Director

Thank you for holding these hearings and for your concern about the issues raised in “the dignity for all students act.”

The NYCLU supports efforts to provide all New York students with an educational environment free of discrimination and harassment. The school setting is a unique one for a number of reasons. The New York Constitution guarantees students in the state the opportunity to receive a sound basic education; but not only do they have a right to be in school, they are required to under compulsory education laws. In addition, the age and vulnerability of schoolchildren, and the pressures inherent in what is for many their primary social setting combine to form a setting where special protections may be warranted to preserve students’ rights.

While we support your efforts to address these concerns, we are here today to sound a cautionary note: any proposed anti-harassment policy, to the extent that it addresses harassment that takes the form of verbal abuse, must be carefully crafted so that it does not infringe on the First Amendment rights of students to express even unpopular and distasteful views. We believe that the bill in its current form may impermissibly impinge on the First Amendment rights of students, and we urge you to revise it to eliminate the constitutional problems that we believe it presents in its current form. We believe that this can be accomplished, and we would like to offer our suggestions for a provision that would both protect the rights of all schoolchildren to receive an education, and the rights of those same students to freedom of expression in the schools.

A student who believes in separation of the races, or that girls belong in the kitchen, or that homosexuality is immoral, has a right to say so, even in school (although perhaps not in math class). If those views are expressed with insensitivity or even hostility, the first response of the school should be to educate rather than to punish. The First Amendment does not permit the government to punish a student for expressing an idea, no matter how controversial, unpopular or upsetting to others. In the unique setting of a school, however, speech that is seriously disruptive, or that actually interferes with the right of another student to receive an education, may be regulated.

As the Supreme Court eloquently held in Tinker v. Des Moines, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Under the Court’s holding in Tinker, a student may freely express his or her opinions if that student “does so without ‘materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others.” (quoting Burnside v. Byars). As you are no doubt aware the neighboring Third Circuit Court of Appeals recently struck down a Pennsylvania school district anti-harassment policy on the basis that a provision similar to the one proposed in this bill prohibited substantially more speech than would be permitted under the standard articulated in Tinker. See Saxe v. State College Area School District, 99-4481 (3rd Cir., February 14, 2001). We agree with many of the concerns raised by the Court in that case and we encourage you to provide New York students with an anti-harassment policy that avoids the problems articulated by the Third Circuit. Our concern about the bill in its current form is that it is both over-inclusive, in that it may prohibit speech that is not in fact disruptive, and under-inclusive in that it prohibits even disruptive speech only on certain topics.

The bill in its current form defines harassment to include “verbal…conduct” based on a student’s race or other specified characteristics, which has the “purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating or hostile environment.” This definition appears to be modeled on the guidelines for defining a Title VII violation for sexual harassment in the workplace, but it fails to incorporate the standards that the Supreme Court has required for finding a violation. Specifically, the Court has repeatedly held that a Title VII violation requires a finding that the harassment must be “sufficiently severe or pervasive ‘to alter the conditions of…employment and create an abusive working environment.'” Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (quoting Henson v. Dundee, 682 F.2d 897 (11th Cir. 1982)). See also Harris v. Forklift Systems, 510 U.S. 17 (1993). Only this week, the Court, in a per curiam decision, reiterated that a Title VII violation cannot be found based on an “‘isolated inciden[t]’ that cannot remotely be considered ‘extremely serious’….” Clark County School District v. Breeden, Slip opinion 00-866 (April 23, 2001) at 3 (quoting Faragher v. Boca Raton, 524 U.S. 775, 788 (1998). In the school setting, a single taunting or abusive comment, that does not amount to a threat or intimidation, should not give rise to a disciplinary response. An anti-harassment policy should permit discipline of a student only where the verbal abuse is so severe or pervasive that it effectively collides with the right of the targeted student to receive an education, or where the speech actually results in substantial disruption. We would encourage you to incorporate that standard into your definition of “harassment.”

Furthermore, the Title VII standard requires both an objectively abusive environment, one that a reasonable person would find to be hostile, and the victim’s subjective perception that the environment is abusive. See Harris. In prohibiting “verbal conduct” that has either the purpose or effect of interfering with a student’s performance or creating an intimidating or hostile environment, the bill looks at a student’s subjective response to the speech and goes beyond the requirement that a hostile environment must, objectively, exist. In addition, the purpose prong of the definition would find harassment to exist, even where no student was in fact affected by the speech, and no hostile environment actually created.

The current bill’s definition of harassment also raises concerns in that it selects and disfavors only speech on specified subjects: race, national origin etc. Speech on other topics, no matter how disruptive, is untouched by this bill. “The First Amendment does not permit [the government] to impose special prohibitions on those speakers who express views on disfavored subjects.” R.A.V. v. St. Paul, 505 U.S. 377 (1992) (overturning, as impermissibly content-based, an ordinance prohibiting the display of a symbol that arouses anger, alarm or resentment on the basis of race, color, creed, religion or gender). All students have a right to a sound basic education. If a hostile environment exists such that the student’s performance is affected, it should not matter whether that student is targeted on the basis of race, height, eye color, or her parents’ politics. It is the effect on the educational environment, not the content of the speech, that permits government intervention, and we encourage you to reflect that principle in the bill.

In order to avoid the constitutional concerns outlined above, we would offer the following suggested definition of “harassment.”:

“Harassment” means the creation of a hostile environment by conduct or by verbal threats, intimidation or abuse which are severe or pervasive enough to have the effect of substantially interfering with a reasonable student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being, and which actually does so interfere. This includes but is not limited to harassment based on a student’s actual or perceived race, national origin, ethnic group, religion, disability, sexual orientation, gender or sex.

This definition would prohibit harassment when the speech in question is so severe and pervasive that it substantially interferes with a student’s education or well-being. It incorporates an objective standard, based on a reasonable student, so that no one is punished because another student has an extreme and unpredictable response to otherwise acceptable comments. It also would address harassment that meets the definition regardless of the basis on which a student is harassed, and therefore does not select out speech only on certain topics. We welcome any questions or responses to this definition. There may be other, even better, formulations. But in formulating your final language, we hope you will be guided by the constitutional concerns that we have outlined here.

Finally, I would like to thank the members of this panel for their attention to this issue. We believe it is essential that the Legislature provide leadership and guidance to the school boards in articulating a policy that both protects students and is consistent with the First Amendment. It is you who are the gatekeepers of our constitutional freedoms. Without your guidance, there is a serious risk that in some schools, some school boards or principals may overstep the constitutional boundaries, and that students’ rights will be affected. We thank you for your efforts to protect our students both from harassment and from censorship.

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