Adam A. Milani


What can - and should - schools do about the harassment which their students are suffering? While the issues of hateful and harassing speech and political correctness on college campuses have received a great deal of attention in both the mass media and legal journals, the very real problem of student-to-student harassment in grammar and high schools has only recently been given attention in either forum. More specifically, there has been little attention paid to the questions of whether (1) the First Amendment permits grammar and high schools to control harassing speech by students, (2) schools violate civil rights statutes meant to protect women, minorities and the handicapped if they fail to stop peer harassment, and (3) schools can be held civilly liable for such a failure.

Each of these questions will be discussed in the following pages. Section I will discuss the "fighting words" doctrine and the Supreme Court's application of the First Amendment's guarantee of free speech in the schools and conclude that grade and high schools may regulate student speech as long as the speech codes adopted are directed at fighting words generally, and are not content-based. Section II will cover the relevant civil rights statutes and their interpretation and application by the Department of Education's Office of Civil Rights. Finally, Section III will address the issue of whether schools can be held civilly liable for failing to stop peer harassment.