Favoring a religion or encouraging respect? A legal challenge to an anti-bullying program 

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The San Diego Unified School District faced a legal challenge when responding to bullying of Muslim students. 

In many ways, the lives of students today are vastly different from those of 40, 20, or even 10 years ago. Their educational experiences are marked by technological advances, increased globalization, shifting academic expectations, and, for many, diverse, divisive, and litigious communities.  

In some places, schools risk stoking the wrath of one part of their community in an attempt to be inclusive to another. Nowhere is this more evident than in heated local debates and litigation over school policy and curriculum. For example, consider Citizens for Quality Education v. Barrera (S.D. Cal 2018), which addressed efforts by the San Diego Unified School District — a large, urban, and very diverse community — to protect and be inclusive of a subset of its student population.  

In July 2016, responding to reports that Muslim students were being bullied, the district’s school board resolved to “direct the superintendent to bring back to the board a plan to address Islamophobia and the reports of bullying of Muslim students.” In April 2017, the district adopted “Action Steps” to address the issue. Among these steps was a plan developed by the district’s Family and Community Engagement Department in collaboration with the California chapter of the Council on American Islamic Relations (CAIR), a Muslim civil rights organization.  

The “No Place for Hate” anti-bullying program did not focus solely on religious-based bullying, nor did it focus solely on the protection of Muslim students. 

However, other factions of the community, including the plaintiffs in this action (the Citizens for Quality Education, San Diego Asian Americans for Equality Foundation, and a number of parents) resisted the original directive and the proposed Action Steps because they believed that the district was attempting to establish a preference for Islam and Muslim students and was entangling itself with a religious organization (CAIR) and delegating power to it.  

The district’s initial reaction to the disagreement was to sever its working relationship with CAIR and to remove the books and materials CAIR had recommended from the school libraries. But, in July 2017, the board affirmed its commitment to school safety and indicated it would not tolerate the bullying of any students, including Muslim students. At the same time, it adopted a policy that put in place a variety of efforts to promote cultural and religious tolerance and understanding. These included:  

  • A calendar of religious and cultural observances, including holidays of all faiths to enhance understanding and respect among various religious and cultural groups.
  • A district anti-bullying program called “No Place for Hate,” in partnership with the Anti-Defamation League, to comprehensively address the issue of bullying of all students.
  • Reconfirmation that instructional materials would continue to be consistent with state standards and would address all major world religions in the context of world history and culture. 
  • Reconfirmation that students are entitled to form clubs focused on religion, but staff are prohibited from promoting any such club.
  • An intercultural committee representing the broad diversity of the community’s cultures. The committee was to provide input to the district on issues of cultural sensitivities. (CAIR was originally excluded from this committee and then added after the litigation began.) 

The plaintiffs sued the district to prevent the policy from going into effect, to prevent CAIR from having any influence in the district, and to prevent the district from using materials CAIR recommended. Plaintiffs alleged that the policy set out a favorable relationship between CAIR and the district and favored Muslim students. Specifically, they claimed a violation of the Establishment Clause.  

Do school district’s policies prohibiting bullying based on their religious beliefs run afoul of the Establishment Clause? 

The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion” (U.S. Const. Amend. I). This prohibits any governmental body from endorsing religion or providing preferences or distinctions between religious organizations without a compelling state interest. The court found that the district had a valid interest in prohibiting bullying in schools and noted that this policy is consistent with a California state requirement that school districts prohibit religion-
based discrimination, harassment, intimidation, and bullying.  

Although not mentioned by this court, cases on religious-based bullying have been decided by other courts as well. In 2014, for example, an Ohio school district was held responsible for the bullying of a Jewish student who had endured religion-based taunts and threats for four years. Both the student and her mother had contacted the school district to no avail. As it related to this student, the district failed to enforce its own policy against bullying and harassment. Eventually, the family sued the district and prevailed. The court found that the district and individual administrators were liable because there had been deliberate indifference to this student’s plight. Noted the court, “It is difficult to imagine how any school administrator could think he would not be liable for allowing unregulated religious . . . persecution that spanned a four-year period” (Shively v. Green Local School Dist., 6th Cir. 2014). 

Although the San Diego district policy was, on its face, neutral on religious matters, plaintiffs alleged an Establishment violation because its inception was based on a concern for Muslim students. The court did not accept this argument. The “No Place for Hate” anti-bullying program was comprehensive in nature, intended to protect all students from bullying. It did not focus solely on religious-
based bullying, nor did it focus solely on the protection of Muslim students. The program’s message was that abuse and harassment are unacceptable regardless of the motivation of the harassers, and in some situations (i.e., hate crimes), the motivation heightens the offense rather than protecting the offenders.  

Can a religious-based organization have a role in the developing of materials and programs designed to improve religious and cultural sensitivities? 

The plaintiffs in San Diego alleged an Establishment violation because of the district’s collaboration with CAIR. The court granted that the district and CAIR shared the goal of reducing Islamophobia and anti-Muslim bullying, but it did not agree that this entailed an unconstitutional entanglement of church and state. Contrary to the plaintiffs’ claim, the district did not “delegate government power” to CAIR by allowing the organization to participate in the intercultural committee. CAIR was only one of a number of community organizations on this committee, which was designed to advise (not dictate to) the district. Any materials or programs the committee suggested were to be considered through the district’s regular decision-making processes. Thus, CAIR’s participation did not amount to the “unfettered and preferential access” alleged by the plaintiffs.  

Does the recognition of one religion in the school’s materials indicate an Establishment violation? 

The plaintiffs alleged that including Islamic holidays on the school calendar indicated CAIR’s power over the district and a religious preference. The calendar had previously recognized other religious and cultural observances, and as a part of the 2017 action, Islamic observances were included as well. The court found that the district policy clearly stated that the calendar of observances would include holidays of all faiths “for the purpose of enhancing mutual understanding and respect among the various religious, ethnic and cultural groups,” not for the purpose of privileging any one of them. 

If a community is divided sharply, along religious lines, about an educational issue, does that suggest there has been violation of the Establishment Clause? 

Plaintiffs pointed to the “substantial controversy” over the policies and programs as incontrovertible evidence of a constitutional violation. Although political divisiveness is sometimes considered in determining whether an Establishment violation has occurred, it has never been the sole determining factor. To allow one community faction to create a controversy and then use that controversy as justification to subvert a policy change would be illogical.   

But it does show that, unfortunately, many of our communities are divisive and litigious. This is not the fault of the school district, but it does end up being the district’s problem. As ambassadors for learning and positive growth, school systems will need to continue to work through these issues with and for their communities.  

Citation: Underwood, J. (2019). Under the law: Favoring a religion or encouraging respect? A legal challenge to an anti-bullying program. Phi Delta Kappan, 100 (7), 74-75. 

JULIE UNDERWOOD (Julie.Underwood@wisc.edu) is the Susan Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison.

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