Hurt Feelings Don’t Justify Ban on Free Speech

Published April 6, 2011

The First Amendment and privacy rights of every student in every U.S. public school accepting federal funds are being strangled by the strings attached to that funding. They’re expensive strings we’re all going to pay for.

As part of the federal anti-bullying policy announced by President Barack Obama last month, the U.S. Department of Education is threatening to sue schools that fail to monitor their students’ Facebook postings, text messages, other cell-phone communications, and even private conversations to detect harassment, according to the Daily Caller.

Monitoring must include communications by students on their free time in the evenings, even outside of school. Schools can be sued even if they didn’t know about such communications, if a court later finds they “reasonably should have known.” The incidents need not be repeated; one is enough. And they need not be aimed at a particular individual.

Proven violations may result in mandatory training for students, their families, teachers, and school officials.

Everyone has heard the explanation schools and other units of local government give when they try to explain why they’re accepting federal grants: It doesn’t cost anything, and if we don’t take the money, some other government entity will.

But there’s no such thing as free money. Federal funding always has federal supervision attached, even on subjects not related to the grant, as in the present case. And here that means additional costs financially strapped public schools must pay to track students’ private communications.

And it’s going to cost federal money as well. The Obama administration has asked for $365 million in funding for 2012.

The Department of Education is acting under civil rights laws, which give individuals a private right to sue. So in addition to possible lawsuits from the federal government, every child who is offended by another can sue school officials. Schools will settle these cases—at great cost to all of us—because it’s cheaper than fighting them.

Education Department officials say the anti-harassment proposal is justified because “in a truly safe school … students feel like they belong, they are valued, they feel physically and emotionally safe.” That sounds nice in theory, but you know what’s going to happen under this policy. School officials, fearing costly lawsuits, will adopt a zero-tolerance policy, banning any speech conceivably critical of any race, gender, or sexual orientation, even if an individual is not named, and even on a student’s own time. The government will oversee everything they say and do. It will be like living in the Soviet Union.

Fortunately, the courts may strike down such speech bans as unconstitutional. The influential Judge Richard Posner of the Seventh Circuit Court of Appeals, based in Chicago, reiterated last week there are limits on what student speech schools can penalize.

Several years ago, a high school near Naperville, Illinois set a “Day of Silence” to “draw attention to harassment of homosexuals,” according to the Posner opinion. Two young men, then students at the high school, wore t-shirts that day saying “Be Happy, Not Gay.” School officials blacked out the “Not Gay” part, and the students sued the school, alleging school officials had violated their free speech rights.

The court agreed, writing, “Thus, a school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality.” And “people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.”

To be banned, speech must not result merely in “hurt feelings.” It must be reasonably foreseeable by school officials that it will cause “substantial disruption,” the court said, such as “a decline in students’ test scores, an upsurge in truancy, or other symptoms of a sick school.” Or it must involve “fighting words” that would incite violence.

Bullying is certainly not a good thing, and reasonable efforts to educate children against it are admirable, even necessary. But unreasonable efforts to ban speech likely would not succeed in court, nor should they. There is no good reason for President Obama to open this can of worms.

Maureen Martin ([email protected]) is senior fellow for legal affairs at The Heartland Institute.