When the Wellesley Public School system hosted affinity group sessions and created a bias reporting procedure, it sought to create a welcoming environment for students. But when the school system faced a lawsuit last year, the existence of these new initiatives came into question.
Boston College Law Professor Kent Greenfield, who teaches about cases regarding student speech in his course on the First Amendment, thought he could help.
In 2021, Wellesley Public Schools held listening sessions for various historically disenfranchised groups: Asian or Asian American and Pacific Islander students and students within the BIPOC (Black, Indigenous, and People of Color) community. Wellesley had also instituted a formal reporting procedure for incidents of bias or offensive language, in order to maintain an environment conducive to learning.
Parents Defending Education (PDE), a national right-leaning organization that has lodged lawsuits against several school districts, took action against the Wellesley district under the equal protection clause, the First Amendment, and Title VI of the Civil Rights Act of 1964, along with the Massachusetts Students’ Freedom of Expression Law.
“There is tension over these issues around the country,” Professor Greenfield noted in an interview. “Massachusetts is ahead of the curve in trying to figure out how to be responsive and to improve diversity, equity, and inclusion efforts. It’s a constant conversation. But these national interest groups are so well funded, local school districts need to be able to thread the needle between being responsive and protecting the children and insulating themselves from legal attacks,” he said.
Working closely with local attorney for Wellesley Public Schools (and BC Law father) John J. Davis of Pierce Davis & Perritano LLP, Greenfield used his refined understanding of First Amendment doctrine to help revise the bias reporting procedure.
The superintendent suspended the old reporting procedure, while Davis and Greenfield worked together to adjust the language. “There are numerous student speech cases, and we wanted to make sure we were in line with those,” Davis said. “We crafted language, we tweaked it, and with the approval of the school committee the Superintendent put the new procedure in place. We always intended to have a procedure in place.”
The new speech and harassment policy is attentive to the difference in standards between conduct and speech. It makes it clear that the school stands on the firmest constitutional ground when it comes to regulating harassing speech, disruptive speech, targeted threatening speech, and epithets. Greenfield helped to tailor the procedure to the kind of speech deemed the most problematic. It focused on the kind of student speech the Supreme Court has said schools can regulate.
While PDE claimed otherwise, Davis said it was never the position of the school committee, the superintendent, or Wellesley Public Schools to have the affinity groups be exclusionary to any students. “The affinity groups are for everyone. Everyone who wants to participate is entitled to participate. And we clarified that.”
Greenfield further pointed out to the school district that they can have a specific point of view. “Schools can have a point of view, even about controversial topics, and they can proclaim that view. They can be in favor of books and against drugs, for example. And they can also say that ‘Black Lives Matter’ without having also to say the opposite,” Greenfield said.
“You can make choices like that. As long as it doesn’t punish students for their opinions. Which the school wasn’t doing anyway,” Greenfield explained. “After the new procedure was put in place, the schools are now in a stronger position to make their views clear, keep their students safe, but also insulate themselves from legal attack.”
Armed with a revised bias reporting procedure and clarification regarding inclusionary affinity groups, Davis helped to broker the settlement with PDE. Under the settlement, both sides were responsible for their own fees. Wellesley Public Schools paid no damages, admitted to no liability, and PDE obtained no declaratory or injunctive relief.
“My concern is that, politically, it is tough right now to have a school system that advances these types of interests,” Davis said. Wellesley has been on the forefront in having a director of diversity, equity, and inclusion and having the listening spaces to begin with. Many schools do not have similar spaces for marginalized students where they can share their concerns.
“We’re kind of swimming against the tide. There are groups like PDE that are well-funded and well-organized and they are watching school systems across the country,” Davis cautioned. “The effect is that they are chilling those sorts of activities by public school systems.”