Around midnight on December 22, the New York City Panel for Education Policy wrapped up a seven-hour meeting by passing policy D-210, billed as a measure to combat harassment and discrimination. Unfortunately, the regulation risks chilling the speech of parent advocates by giving public officials a tool to silence dissent. Siding with free speech means rescinding this ill-conceived, constitutionally dubious rule.
Policy D-210 establishes a code of conduct for parents elected to New York City’s Community Education Councils. These councils have limited duties, but they provide oversight over the city’s Department of Education and advocate on behalf of parents in their communities. Disagreements among council members are often passionate and heated on weighty issues, such as school integration and the use of standardized testing for admissions in elite public schools.
Policy D-210 will curtail such debate through its anti-harassment measure. The rule prohibits “frequent verbal abuse and unnecessary aggressive speech that serves to intimidate and causes others to have concern for their personal safety.” This directive extends to council members’ speech as private citizens if that speech creates “or would foreseeably create a risk of disruption within the district or school community.” Council members can face removal and a lifetime ban on running for a council seat again if they run afoul of the rule; the schools chancellor can even remove a council member before an investigation is complete if doing so is “in the best interest” of the school district.
Vague language makes for bad law. Due process requires that our laws be understandable to the public, so people know what they can or cannot do or say. Should we expect council members to know in advance what speech might be deemed “unnecessary” and “aggressive?” Does anyone know beforehand what might create a “risk of disruption within the district or school community?” Since these key terms lack objectivity and clarity, council members bound by them will stay silent or dampen their advocacy to avoid censure.
The D-210 regulation thus lays the groundwork for abuse. Since terms such as “disruption,” “unnecessary,” and “aggressive” are malleable, the regulation’s enforcers can wield the rule simply to punish speech they don’t like. In a culture increasingly concerned with emotional safety, political speech on key issues could be viewed as “caus[ing] others to have concern for their personal safety.” Across the country, reasonable policy platforms—such as defenses of standardized testing or opposition to racial preferences in admissions—have been smeared as racist, and many see exposure to controversial viewpoints as a threat to their “safety.” Listeners offended by controversial ideas will surely file complaints to the city under this regulation. After all, these are the same forums in which a council member excoriated a white man for holding a black baby on his lap during a Zoom call. A single, unelected “equity compliance officer” will investigate these complaints and could publicly censure or remove council members for expressing viewpoints that cause discomfort.
In defense of the regulation, Deputy Chancellor Adrienne Austin noted that workplaces around the country already prohibit harassment. Such laws define harassment as “severe or pervasive,” such that the harassment creates a hostile or abusive work environment for a reasonable person. But the city’s regulation extends to speech deemed simply “aggressive” or disruptive, which legitimate political advocacy often is. In fact, a council member may rightly see it as their duty to be aggressive while arguing for the interests of his constituents. And the regulation does not ask whether a reasonable person would be harmed, instead asking whether the speech “caused” someone to fear for their “safety”—whether such fear is reasonable or not.
The unfortunate outcome of D-210 will be less open debate over what’s best for New York City schoolchildren. If the education department wants to police bad behavior on Community Education Councils, it can do so without chilling free expression.