Northampton School Committee to revise policy on hate symbols after ACLU advises it could chill free speech

NORTHAMPTON — After receiving a letter from the American Civil Liberties Union arguing that a proposed anti-bias and “symbols of hate” policy for the schools could have a chilling effect on free speech, the School Committee has decided to make changes before putting the policy to a vote.

Mayor David Narkewicz said the letter arrived on Wednesday, one day before the School Committee was scheduled to hold its first reading of the draft policy that would have banned the display of Confederate flags, swastikas and nooses at school and at school-related functions, along with establishing a new procedure for reporting incidents of discrimination.

“I am heartbroken to be referring this policy back to the Rules & Policy Subcommittee,” Dina Levi of Ward 5 said before the committee voted unanimously at its meeting Thursday to keep working on the language.

“My hope is that we can work in collaboration with (the ACLU) so that we are assured that the policy we bring back — which I hope we do incredibly swiftly — will withstand a legal challenge.”

Under the draft policy that will be rewritten, a “symbol of hate” was defined as “a symbol, image or object that expresses animus on the basis of” a protected status, such as race, sex, religion, gender identity, disability, pregnancy, genetic information and more. The policy would have applied to students, students’ families, faculty, staff, contractors and all visitors.

A bias incident was defined as “conduct, speech, images or expression … that demonstrates conscious or unconscious unfair or prejudicial distinctions about people” based on “any status protected by law or District policy.”

Anyone who was “likely to be impacted” by an alleged bias incident could have filed a complaint, not just the target of the discrimination. Complaints would have been made to the school principal, the superintendent or the School Committee.

Bill Newman, the director of the ACLU’s western Massachusetts office, wrote the seven-page letter laying out the legal argument against the policy.

“We appreciate the committee’s aspirations to create an equitable and inclusive learning environment,” the letter reads. “We nonetheless note that the policy has the potential to disrupt the ability of students to learn and teachers to instruct. … (It) is substantially overbroad and provides inadequate notice of what speech is prohibited, which creates a chilling effect on constitutionally protected speech.”

The letter also argues that the policy would ban the display of a so-called hate symbol for the purpose of criticizing it. The letter describes the outcomes of several court cases involving alleged bias in schools, including cases in Massachusetts, and concludes that the policy incorporates unconstitutional free speech restrictions.

“Under Northampton’s proposed policy, consider what would happen if a Jewish student whose family immigrated from Israel wore to school an Israeli lapel flag pin that deeply offended a student whose family was of Palestinian origin,” the letter reads. “Could that Jewish student be punished? Under the proposed policy the answer seems to be yes because a ‘Bias Incident’ definitionally includes expression that another person finds ‘disrespectful’ or ‘unfair.’”

Several students in city schools, including multiple students from JFK Middle School, spoke in favor of the policies during the committee meeting’s public comment period.

“It’s absolutely imperative that we pass something like this,” member Emily Serafy-Cox of Ward 3 said. “If we create something that is just going to get struck down, it’s like a straw man: you push it over and it’s gone. … I want to create something that will protect our students and staff.”

The School Committee was scheduled to vote Thursday night to mandate COVID-19 vaccinations for all teachers and staff. By press time, the committee had not taken up that agenda item.

Under the proposed mandate, all school employees would be required to receive a vaccination against the coronavirus by Oct. 22.

The mandate allows for medical and religious exemptions.