Dear Arkansas School Superintendents:
The Arkansas Civil Liberties Union Foundation is a non-profit, non-partisan organization dedicated to promoting, protecting, and preserving civil rights and civil liberties guaranteed to all Arkansans by the United States and Arkansas Constitutions. Among these liberties is the right of students to a public school education free from unlawful harassment.
We correspond with you today on behalf of students and parents with children in Arkansas public schools because we have recently received reports of troubling incidents of harassment in public schools around the state. As you know, students are protected from unlawful harassment by federal and state law.
School districts can and must prevent harassment as well as respect students' First Amendment rights.
Of course, schools must respect the free expression rights of their students, even if the student is expressing an unpopular view. In fact, harassment is less likely to occur in schools where ideas can be freely and respectfully exchanged. However, when speech interferes with another student’s educational opportunity or rights or encourages unlawful treatment of students, this is not protected speech and must be addressed.
Public school students are protected by federal law from discrimination or harassment based on race, color, religion, sex, national origin, or disability. See, eg., Titles IV and VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation of 1973, Titles II and III of the Americans with Disabilities Act, and the Individuals with Disabilities Education Act.
State law also provides that “every public school student in this state has the right to receive his or her public education in a public school educational environment that is reasonably free from substantial intimidation, harassment, or harm or threat of harm by another student.” This law protects students from bullying that may address attributes including, without limitation, race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identity, physical appearance, health condition, or sexual orientation. Ark. Code Ann. § 6-18-514(b)(1). The law requires that all districts have a policy in place that requires any employee who has witnessed or has reliable information that a pupil has been a victim of bullying as defined by the district to report that incident to the principal. Ark. Code. Ann. § 6-18-514(e)(2)(D). Every school principal, or his or her designee, is required to promptly investigate any credible report or complaint of bullying and make a record of the investigation and any action taken as a result. Ark. Code Ann. § 6-18-514(d). Under Ark Code Ann. 6-18-514(e)(E), all persons involved in filing the report shall be protected from any form of reprisal. Additionally, Ark. Code Ann. § 6-18-1005 requires that all school counselors have group conflict programs that are designed to assist in the prevention of bullying.
The essence of these laws is that no person employed by a publicly funded educational facility shall allow students to be harassed because of their race, color, religion, sex, national origin, any disability, or other attribute. It is unlawful for school employees to stand idly by while a student is harassed for exercising a Constitutional right. School officials can be held liable for failure to protect students from bullying and harassment. See, e.g. Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996); Flores v. Morgan Hill Unified School District, 324 F.3d 1130, 1134-35 (9th Cir. 2003). School officials must take seriously the claims of harassment and fully and effectively resolve them. See Flores at 1135-36 (“Failure to take any further steps once he knew his remedial measures were inadequate supports a finding of deliberate indifference.”). Schools that have failed to do so have had to pay hundreds of thousands of dollars in damages. Districts and employees are prohibited from retaliating against or taking adverse action against students who have asserted or exercised their rights and must not retaliate against others who have supported these students’ rights.
Students whose rights may have been violated and their families can file complaints with the Arkansas Department of Education, the U.S. Department of Education, and U.S. Department of Justice, or in courts of law, but it is far preferable for all in a school or community to address issues swiftly and in accordance with law.
To prevent harassment in the first instance, staff members should teach why harassment is wrong and teach that equality and respect are essential to a free society. Schools are not required to wait to respond to conduct until it escalates to a point where it may be punished. Schools may respond to such conduct in ways other than punishment and there is no better way to prevent student harassment than to educate students about why slurs and other harassing behavior are harmful.
In response to an act of harassment, staff members should intervene immediately to stop the harassment and, if appropriate, should punish the harassment promptly, consistently, and proportionately to the seriousness of the act. But the response should not end there; rather, staff members should deter future harassment with continuing lessons of tolerance and respect.
We have charged the educators in our country not only with teaching our children, but with protecting them while they learn. Parents trust teachers and all school staff to stand watch over our children where we cannot. The possibility that any educator would protect or promote the happiness, safety, or education of one child over another, especially for discriminatory reasons, is an affront to the laws and morals of this nation.
We urge you to share this information with faculty and staff and ensure that all are ready to guarantee an educational environment that is healthy and protective of all students and fosters respect for all students and staff of ever race, ethnic origin, religion, gender, sexual orientation, gender identity and all other characteristics. Please let us know if you believe we may assist you in this endeavor in any way.
Arkansas Department of Education Commissioner Johnny Key
Arkansas Department of Education Professional Licensure Standards Board
Arkansas School Boards Association
Arkansas Association of Educational Administrators