Unfounded and Misleading Attacks Against Alliance Defending Freedom’s New Anti-Bullying Policy Yardstick Keep Coming

By Jeremy Tedesco – Alliance Defending Freedom Legal Counsel

PrideSource recently posted an article attacking Alliance Defending Freedom’s and Focus on the Family’s new Anti-Bullying Policy Yardstick (“The Yardstick”) and suggested anti-bullying policy.  As we have seen before with articles attacking these resources, it is chock full of misrepresentations.

For example, PrideSource claims that our suggested approach to the anti-bullying issue “enables bullies by giving them an exemption from the consequences of bullying if it is for ‘religious, political, philosophical or other protected student speech.’”  This is flat wrong.  We do not advocate for policies that exempt religiously-motivated bullying.  Instead, The Yardstick advises schools to make sure that their anti-bullying policies provide for rigorous protection of students’ First Amendment rights.  It does so by advising that their policies “include[] a provision stating it does not apply to expression protected by the First Amendment,” and that it “does not prohibit expression of religious, philosophical, or political views, provided that it otherwise does not meet the definition of bullying and does not cause a substantial and material disruption of the work of the school.”  All The Yardstick recommends is what the law already requires: that anti-bullying laws cannot be written so broadly that they prohibit student expression protected by the First Amendment.  Simply put, The Yardstick does not advise schools to exempt religious bullies from anti-bullying policies, but rather to ensure that their policies protect the First Amendment right of all students to express their views (religious or otherwise) at school without fear of being punished.

PrideSource also quotes the President of Michigan’s State Board of Education as saying that our suggested approach “actually endorses bullying i.e. abusing someone who is gay if one’s religion teaches you gay people are bad or evil.”  This over-the-top charge has no basis in fact.  Neither The Yardstick nor our suggested policy says anything of the sort.  Such baseless accusations have no place in a serious conversation about the dangers poorly drafted anti-bullying policies pose to core First Amendment freedoms.

The PrideSource article also complains that we advise schools to precisely define “bullying.”  But this is a critical consideration in drafting or evaluating an anti-bullying policy.  Indeed, one of the key constitutional problems we repeatedly see with such policies is the vague and imprecise language they use to define “bullying.”  Using terms like “offensive,” “annoying,” “alarming,” “uncomfortable,” and similarly vague terms, to define “bullying” immediately endangers the First Amendment rights of all students because (among other things) they allow for arbitrary enforcement by school officials.  Legions of Supreme Court, federal appellate court, and federal district court cases have warned against the danger of such policies.  As the Supreme Court said, “A government regulation that allows arbitrary application . . . has the potential for becoming a means of suppressing a particular point of view.”  Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992).

Relying on these First Amendment principles, the Third Circuit Court of Appeals found a school’s anti-harassment policy, which defined “harassment” at least as broadly as many anti-bullying policies define “bullying,” to be unconstitutional.  The Court said that the policy’s vague and overbroad terms “could conceivably be applied to cover any speech about some enumerated personal characteristics [listed in the policy] the content of which offends someone.”  Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2001).  Chief among the Court’s concerns was that the policy’s broad terms could prohibit “much ‘core’ political and religious speech” protected by the First Amendment.  Id.  These same problems exist in many anti-bullying policies we review.

While others (like Pridesource) complain about bullying, we did something about it.  We researched the law and drafted a policy that protects ALL students from bullying (instead of just those students who fall within the limited categories listed in most anti-bullying measures), while at the same time protecting the right of ALL students to exercise their right to freedom of speech at school without being wrongly accused of bullying.  Hit pieces like this one by PrideSource, and by groups like them, show how they are more interested in pushing their political agenda on our children than respecting their First Amendment rights or curbing bullying.

Author: Alliance Defending Freedom