Massachusetts creates a system of decentralized surveillance in public schools.
A phenomenon is sweeping many Massachusetts public schools: the “bias incident report.” The inner-ring Boston suburb of Newton (home of Jake Auchincloss, the congressman for the Fourth District) hosts an online portal where a person can report any cases of “hate speech, bias, or discrimination.” Another wealthy suburban district, Acton-Boxborough, lays out a protocol for the reporting and investigation of “all incidents of bias, including prejudice, bigotry, microaggressions and cultural appropriation.” Belmont, Lexington, and Wellesley are among other elite suburbs with these kinds of protocols, though their emergence is not confined to wealthy districts: Boston Public Schools has its own “equity” reporting form.
Creating a system of decentralized educational surveillance, these bias-incident protocols essentially deputize all members of a school community with the responsibility of monitoring behavior and speech. Anyone aware of an alleged “bias incident” may report it. The target or perpetrator of this alleged bias could be a student, staff member, or faculty. Everything from off-color language to physical violence to, as Boston Public Schools puts it, “imitating someone’s cultural norm” could count as an incident. Most of these protocols allow for anonymous reporting. Once a report gets filed, an investigation would begin, which could lead to disciplinary consequences for the alleged perpetrator, as well as possible school-wide initiatives.
Popularized among American colleges and universities, bias-incident protocols have begun to proliferate in Massachusetts public schools, much more so than in neighboring states. Some measures predate 2020, but they have dramatically expanded over the past two years. Public policy may help explain why.
In November 2020, Massachusetts attorney general Maura Healey, now governor, issued a “guidance” memo instructing public schools on their “legal obligations to prevent and address hate and bias incidents.” The legal basis for the memo came from the Massachusetts Anti-Bullying Law and the Massachusetts Student Anti-Discrimination Act, both measures long on the books. Healey’s memo also draws from regulations approved by the state’s Department of Elementary and Secondary Education that require that Bay State public schools “strive to prevent harassment or discrimination” and take action in response to harassment or discrimination. Those regulations were last amended in 2012, but Healey’s seven-page 2020 memo offers an extended interpretation of what schools are expected to do to abide by these rules.
Though the term “hate incident” does not occur in the state laws or state regulations that Healey cites as a basis for her authority, her memo says that Massachusetts schools “must take prompt and effective action to address hate incidents involving students.” It argues that schools need to do more than punish bullying or harassment: “Even if a school determines that a hate incident does not rise to the level of bullying or harassment, it should still address behavior that violates its code of conduct or other disciplinary rules.” Moreover, insufficient efforts to address alleged “hate incidents” may put the school in violation of the state’s Anti-Discrimination Act.
Healey’s directive thus creates an incentive for public schools to take extraordinary measures to confront alleged bias incidents. Further, the guidance says that schools have a responsibility for policing bias even in incidents that happen after the school day or off school property. Even “social media, texting or other online activity may qualify as in-school incidents” because of the “pervasive presence in students’ lives” of such digital communication. While the memo nods in the direction of some First Amendment protections for speech, it argues that “schools may discipline students for protected speech that causes, or is likely to cause, a substantial disruption or interferes with the rights of others.”
The memo demands that schools “review curriculum to ensure that it promotes tolerance and does not perpetuate discriminatory or demeaning stereotypes.” It requires schools to “implement plans to support and protect students who are vulnerable” to harassment and bullying, to prohibit bullying and harassment, and to “implement comprehensive policies and procedures for reporting, investigating, and responding to bullying and harassment.” It also requires training for teachers and staff in anti-bullying and anti-harassment techniques and that students be informed about these issues.
The memo also outlines recommended “best practices.” Schools are encouraged to build a “climate of inclusivity” to help avoid “hateful or biased conduct or speech.” Educational curricula should explore “the role of unconscious bias” and focus on “underlying causes and difficult conversations.” Schools should promote clubs focused on various kinds of identity: “Black Student Union, Asian American Students Association, Gay-Straight Alliance/Gender Sexuality Alliance.” Schools should issue “prompt and clear communication to the school community when a hate incident occurs.” Her memo also advises schools to consult guidance from the Department of Elementary and Secondary Education that says that schools should consider not disclosing to parents a student’s self-reported sexual orientation or gender identity.
Healey’s November 2020 memo thus creates a host of incentives for schools to enact a surveillance regime for the monitoring of alleged bias. A “bias incident” that is not caught and followed up on may open a public school to legal jeopardy. Schools have an incentive to cast as wide a net as possible, which might also explain why many districts allow for anonymous reporting. A 2021 presentation from the town of Belmont’s school committee’s equity subcommittee references Healey’s memo in discussing efforts to formulate a bias-incident protocol. Today, Belmont’s school district even advertises its bias-reporting system at the top of its webpage: “MAKE A DIFFERENCE! HELP STOP HATE IN OUR SCHOOLS!” Acton-Boxborough, meantime, defines harassment as any behavior that creates an “environment that is intimidating, hostile, or offensive to anyone.” This definition could conceivably classify almost any speech or deed as such—all it takes is one person finding that it creates an “offensive” environment. A “young earth” creationist might find instruction in fossils as “offensive,” for instance, or someone might be offended by the scenes of sexual coercion in Ovid.
The stakes are high. At American universities, bias-incident reports have prompted concerns about free speech and academic freedom, and the expansion of such protocols at public schools might add to those worries. The formalization of such a regime in Massachusetts public schools illustrates the multi-step use of state power to police expression and impose new normative standards through the educational system—from legislation to administrative rule-making to executive interpretation to local school district implementation.
The implications for pluralism are obvious. Would a school, for instance, take the side of a student who found that an “offensive” environment was created by instruction in critical race theory? Questions of privacy are perhaps more profound. These protocols take the idea of “see something, say something” away from issues of public safety (such as a gun in a school) to more amorphous territory, mediating all personal relationships through a bureaucratic apparatus. Most Americans would agree that school officials should know if one student physically attacks another. But what counts as “imitating someone’s cultural norms” is less clear, and cultural imitation is often an important element of cultural exchange and innovation. In a time of growing public concern about American teens’ emotional state, an educational regime of mass peer surveillance and reporting could compound feelings of isolation and mistrust. Calling on students to report on one another for crossing various cultural bounds could encourage not intermixing and integration but the retreat to cultural bunkers.
At the end of Democracy in America, Alexis de Tocqueville feared that American democracy could degenerate into a combination of atomism and bureaucratic rule: An “immense and tutelary power” would cover “the surface of society with a network of small complicated rules, minute and uniform . . . it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people.” Feeling disconnected, isolated Americans would be more willing to submit to a new kind of absolutism.
A vast bureaucratic apparatus of cultural policing—complete with student informants—in public schools would seem an instrument of the “immense and tutelary power” that Tocqueville famously warned about two centuries ago.
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