Protect Florida Students From Bullying

During the 2008 session, the Florida Legislature passed the Jeffrey Johnston Stand Up for All Students Act, which requires all Florida school districts to adopt a policy that complies with new state law requirements by December 1, 2008. Many school districts are already in the process of crafting and passing their new policies. We need you to urge your school district to adopt an anti-bullying policy that:

  1. Specifically sets forth a list of traits that cannot be the basis for bullying and harassment (a list of protected groups or persons), including "sexual orientation" and "gender identity or expression"; and that
  2. Respects and does not infringe upon speech and expression protected by the First Amendment of the U.S. Constitution, and is enforced in a manner that allows protected speech and expression.

In passing this new state law, legislators made clear that -- in addition to explicitly protecting against sexual, religious or racial harassment -- the statute is also intended to prohibit bullying and harassment based on the student's actual or perceived gender identity or sexual orientation, as well as disability, ethnicity, national origin, gender, physical appearance, or other distinguishing characteristics. The Legislature, however, left it to school districts to adopt anti-bullying policies that clearly state the statute's intent in writing.

While school districts are not required by the new law to expressly list all the traits that cannot be the basis for bullying and harassment -- including "sexual orientation" and "gender identity or expression" -- experience has shown that enumerating a list of protected groups or persons is the best way to ensure that teachers, administrators and students understand who the law is intended to protect. It also is necessary to give teachers and staff the backing they need to feel confident about responding to harassment and bullying.

Reliable scientific research shows that the most common forms of bullying and harassment in Florida schools, and schools across the country, are incidences based on actual or perceived sexual orientation, gender identity, and physical appearance. Our LGBT students deserve the opportunity to learn in an environment free of unlawful bullying and harassment. We can do our part to make this happen by encouraging school districts to adopt policies that clearly extend protection to LGBT students so it is clear that the school district policy applies to LGBT students in the same way as students in other categories.

At the same time, the ACLU recognizes the need to protect the free speech rights of students. To that end, school district policies should specifically include protection for expressive activity protected by the First Amendment of the U.S. Constitution. In crafting their policies, school districts should avoid defining prohibited conduct in a way that impermissibly infringes on First Amendment rights. Where that may be difficult due to statutory requirements, school districts should apply their anti-bullying policy in a manner that is consistent with the First Amendment. The ACLU of Florida is prepared to protect First Amendment values if a school district prohibits protected speech. School district anti-bullying policies should not regulate a student's off-campus activities, except in school related or sponsored events or on a school bus or at a school bus stop.

Our students deserve to be both safe and free. You can be an important part of making that happen.


Robert F. Rosenwald, Jr.
Director, ACLU of Florida's LGBT Advocacy Project

Courtenay Strickland
Director of Public Policy