New York school’s ‘hateful rhetoric’ stance contradicts fundamental constitutional principles

A new lawsuit against a New York school district may determine whether America still respects free speech – or whether this freedom has been whittled down to mere lip service. 

“Croton-Harmon’s speech codes bar ‘unwelcome,’ ‘offensive,’ and ‘hate[ful]’ speech based on certain protected classes, but not on all – which permits the district to police speech based on viewpoint,” explains Parents Defending Education (PDE), which filed the lawsuit alleging a violation of students’ First Amendment rights. 

“Therefore, some students are protected for views that align with the district’s views, and other students may face punishment because their deeply held beliefs are contrary to the district’s discipline agents.” 

The ‘experiment’ of America’s freedoms 

To understand the magnitude of this lawsuit, we need to remember why America’s Founders so emphasized freedom of speech in the first place. 

Throughout world history, people have said unwelcome, offensive, and hateful things to one another. The real issue, however, is in the power to say anything. 

Only those with absolute power – think monarchs, emperors, and dictators – had substantial “freedom” to say whatever they wanted.  

Those with little power learned quickly the less they said, the more they survived. 

This changed as the governed gradually began demanding more rights from those governing them, culminating in what George Washington called “the last great experiment for promoting human happiness.” 

Washington, like many of his contemporaries, championed the idea of free speech even while recognizing it brought repercussions and responsibilities. 

“If Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and, dumb and silent we may be led, like sheep, to the Slaughter,” he said in an address to army officers in 1783. 

However, educational institutions that should most support the value of free speech to our children are sabotaging this rich historical legacy by limiting students only to preapproved viewpoints. 

“Speech that is harmful to students, which Parents Defending Education suggests should be permitted in its lawsuit, is not welcome in our schools, and does not align with our beliefs as a school district community,” the district opined in a letter to parents. “We are proud that there is no place in our schools for hurtful and hateful rhetoric.” 

Hurtful and hateful, or just rhetoric the school doesn’t like? 

Problems with ‘perceived’ vs. ‘actual’ reality 

The board’s policies proffer a commitment “to protecting First Amendment freedoms within the school system,” yet warns against “inappropriate or illegal conduct” in terms so broad it could cover almost anything. 

Consider its lengthy definition of harassment in section 5300, the student code of conduct: 

“(T)he creation of a hostile environment by conduct or by verbal threats, intimidation or abuse that has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental emotional or physical well-being; or conduct, verbal threats, intimidation or abuse that reasonably causes or would reasonably be expected to cause a student to fear for their physical safety; such conduct, verbal threats, intimidation or abuse includes but is not limited to conduct, verbal threats, intimidation or abuse based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religions (sic) practice, disability, sexual orientation, gender identity, gender expression, gender or sex.” (emphasis added) 

With this one word, “perceived,” the board acknowledges how subjective any so-called harassment can be, which has already happened at the school. 

Students “felt compelled to use the so-called ‘gender-affirming’ pronouns of transgender peers, even though they disagreed with the practice,” the lawsuit explains. 

“Others reported self-censoring their views on politically charged topics, such as abortion or immigration, for fear they would be punished under the school’s vague harassment and discrimination policies.” 

Ironically, the school itself has created the “hostile environment” it argues it’s trying to avoid, since some of its students now feel intimidated based on their Christian faith. 

How then can the school address their concerns, even if staffers and administrators don’t share those religious beliefs? 

The importance of protecting ‘unpopular expression’ 

While the Supreme Court has given schools authority to place certain limits on student speech, it has historically cited factors such as obscenities, vulgarities, or clearly disruptive forms of expression. 

However, the right to express unpopular – even offensive – viewpoints should be recognized, in and of itself, as part of free speech. 

Indeed, “America’s public schools are the nurseries of democracy” and have “an interest in protecting a student’s unpopular expression,” former Supreme Court Justice Stephen Breyer opined in 2021. 

This makes sense if we remember the Declaration of Independence was unpopular in certain segments of colonial America, and downright offensive to Loyalists of King George. 

As Benjamin Franklin once quipped, “If all printers were determined not to print anything till they were sure it would offend nobody, there would be very little printed.” 

However, this is exactly Croton-Harmon’s stance in forbidding what it calls “hurtful and hateful rhetoric.” 

Perhaps these school administrators should study some of the Founders’ writings, which could be considered hurtful or hateful under certain contexts. After all, they were supporting a war – which undoubtedly hurt many people. 

An estimated 25,000-70,000 soldiers died during active military service in the American Revolution, not counting those seriously wounded or disabled. 

A goal to eliminate “hurtful and hateful rhetoric” from schools sounds lofty in theory, but it exposes a deep misunderstanding of the concept of free speech – extremely troubling, especially for a US educational institution. 

“In those wretched Countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own,” Benjamin Franklin wrote as “Silence Dogood” in 1722. “Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech.” 

Instead of coddling school officials’ sensibilities, let’s re-envision schools as training grounds for our children to face an unlimited range of viewpoints. 

We should teach them to hear speech they may not like or believe, responding thoughtfully to topics while respecting their peers’ individual rights. 

Only then can they and future generations continue to secure the liberty of our nation – which still upholds free speech, in all its messy glory, in the US Constitution.