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After criticism from ACLU, School Committee ‘struggling’ to develop hate speech policy

The outside of Brookline High School in May 2024. Photo by Artemisia Luk
May 14, 2024

In recent months, Brookline’s School Committee has been trying to create a policy to track and combat hate speech in the district, but the effort has been tangled with questions of free speech and complicated by criticism from the American Civil Liberties Union.

The proposed hate speech prevention policy would track incidents of hate speech and teach educators how to prevent them.

After discussing a draft in April that called for making teachers and school staff “mandated reporters” for hate speech in Brookline schools, School Committee members are now considering a toned down version.

The work stems from an outpouring of advocacy after the Oct. 7 Hamas attack in Israel, during which parents urged the schools to develop a definition of antisemitism, School Committee members say.

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Over time, that shifted to calls for a broader hate speech prevention policy, which the committee started to develop, said member Steven Ehrenberg. The goal of the new policy is to fill a gap that is not currently addressed by Brookline Schools’ bullying, discrimination, and harassment policies, according to Ehrenberg. The new policy would not make any changes to how schools handle discipline, which is part of already existing policies.

“You could be called a slur or hear a slur, and that could be neither discriminatory nor bullying, but could still be hateful. We don’t have a district-wide policy to address that,” Ehrenberg told Brookline.News in an interview after the School Committee meeting.

So far this school year, the district has received 14 reports of bullying and 16 reports of discrimination, Claire Galloway-Jones, director of the system’s Office of Educational Equity, told a school subcommittee last month.

All of the reports of discrimination came from parents or school staff members, not from students. In one case, students had reportedly been sharing documents with hundreds of antisemitic, racist and homophobic memes.

Danna Perry, a parent and advocate for a hate speech prevention policy, said the data “raised more questions than it answered.” She said a hate speech policy would be helpful in informing educators and students about what language is acceptable and what isn’t.

“Wouldn’t it be nice if we just knew?” Perry said. “In my reading of the policy, that’s where it’s incredibly successful. It outlines exactly that: ‘Here’s what you can say, here’s what you can’t say,’ and none of it is punitive.”

First draft draws ACLU criticism

The first draft of the new policy aimed to report and track incidents of hate speech, and to develop a “system of remediation” that is both disciplinary and educational, operating on a case-by-case basis. The draft said hate speech was “narrowly permissible” in instructional or contextually-appropriate settings, such as displaying the Confederate Flag in a Civil War social studies lesson.

The draft quickly came under the scrutiny of the ACLU of Massachusetts. Ruth Bourquin and Rachel Davidson, lawyers with the organization, sent a letter dated April 25 to the School Committee stating that the policy “raises serious legal and constitutional concerns.”

The draft was too vague regarding what is considered hate speech, particularly in educational settings, Bourquin and Davidson wrote.

“Under the proposed policy, would it be deemed denigrating and thus prejudicial or hateful to white people to discuss the realities of slavery and the Jim Crow Era? How about discussing the historical treatment of Native Peoples in this country?” they wrote. The ACLU did not respond to a request for comment.

Ehrenberg, a third-year School Committee member, presented a revised draft of the policy to the School Committee on April 25, despite feeling “ambivalent” about it, he told Brookline.News. He presented it, he said, as a member of the policy subcommittee that developed it.

Defining hate speech and free speech

Jesse Hefter, who was elected to the School Committee last week, cited the need for a hate speech policy in his campaign and now wrestles with questions of balancing a policy with the rights of free speech.

“When does hate speech cross over the border of what the First Amendment allows us?” he said in an interview. “I expect to work as one of nine on the School Committee to review the draft policy to determine if it can be legally enforced, and if so, to find one that will equally address hate speech across all discriminated groups.”

A previous draft of the policy included a mandated reporter role in which teachers or staff who overheard hate speech would be required to report it. The provision was removed, Ehrenberg said, because Brookline High School, where the policy is most relevant, does not have an honor code and a mandated reporter policy would “run against existing culture.”

The mandated reporter role was also another point of contention for the ACLU’s Bourquin and Davidson, who wrote that requiring an investigation of all instances of hate speech could “chill protected expression.”

Perry said her own conversations with teachers and students indicate that, in the absence of a policy, speech is already chilled, particularly at the high school level and among educators.

“I come from the perspective as a parent, that when you define expectations, you empower people to speak and to act because they know what they’re allowed to say and what they’re not allowed to say,” she said.

The School Committee also discussed the definition of hate speech, particularly when used as part of curriculum to teach about history or when used as reclamation by people against whom certain forms of hate speech may be used. It did not reach a conclusion on a definition of hate speech.

Hefter said it is important that the policy not restrict teaching about hate speech as part of social studies courses that cover topics like the Holocaust and Black history in America.

“There are many, many bad things that have happened,” he said. “I’m not advocating that we don’t teach that.”

Moving forward

The issue is now back to the policy subcommittee for review.

Hefter posed the idea of a “nice speech agreement” in lieu of a hate speech policy, which would be a way for schools to discourage hate speech without enacting policies and potentially violating free speech laws.

Andy Liu, the vice-chair of the School Committee, said the committee wants to inhibit people from creating an “intimidating or hostile environment” in schools, but is still deciding how effective a hate speech policy would be.

“We’ve been kind of struggling to define what amounts to hate speech as opposed to protected speech, and figure out how we lay out in a policy about how the district is supposed to address that,” he said. “The ambivalence is about what kind of policy.”

The hope, he added, would be to do “more good than harm.”