The U.S. Department of Education’s Office for Civil Rights (OCR) has issued guidance in the form of a dear colleague letter to schools, colleges and universities throughout the nation to remind educators that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal anti-discrimination laws enforced by OCR. The guidance warns schools that “by limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment.”
After listing the federal statutes, such as Title VI and Title IX, that OCR is responsible for enforcing, the letter declares: “School districts may violate these civil rights statutes and the Department’s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.” It stresses that when school staff are aware of their obligations under the variety of federal statutes, they are best prepared to prevent such harassment from occurring and to respond appropriately when it does.
The letter notes that bullying/harassment may take several forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating. It re-emphasizes that ”[w]hen such harassment is based on race, color, national origin, sex, or disability, it violates the civil rights laws that OCR enforces,” and schools are “responsible for addressing harassment incidents about which it knows or reasonably should have known.”
The letter also reminds educators that when responding to harassment, a school must take immediate and appropriate action to investigate or otherwise determine what occurred. “If an investigation reveals that discriminatory harassment has occurred,” it states, “a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.” In addition, the letter discusses the steps schools should take to end the harassment, such as counseling for the target and/or harasser, or taking disciplinary action against the harasser. It also notes that the extent of the harassment may require schools to provide training or other interventions not only for the perpetrators, but also for the larger school community, to ensure that all students, their families, and school staff can recognize harassment if it recurs and can properly respond.
The letter includes several scenarios from real cases to clarify actual actions schools may be required to take. In one, a student was subjected to anti-gay taunts and ridicule based on mannerisms and grooming choices that did not conforming to a stereotypical gender role for a teenage boy. School officials attempted to stop the behavior by reprimanding the perpetrators consistent with the anti-bullying policy. This stopped the harassment by those perpetrators, but not the harassment continued by other students. In this example, the letter states, school officials failed to recognize the pattern of behavior as a form of sex-based harassment prohibited by Title IX, and therefore failed to take the immediate and effective action OCR believed necessary to eliminate the hostile environment.
Lastly, the letter addresses the need for schools to take steps to protect victims and any witnesses who provide information from further harassment or retaliation. It recommends: “at a minimum, the school’s responsibilities include making sure that the harassed students and their families know how to report any subsequent problems, conducting follow-up inquiries to see if there have been any new incidents or any instances of retaliation, and responding promptly and appropriately to address continuing or new problems.”
[Editor's note: OCR's "dear colleague" clarifies the applicability of Title IX to harassment based on actual or perceived sexual orientation: "Title IX also prohibits sexual harassment and gender-based harassment of all students, regardless of the actual or perceived sexual orientation or gender identity of the harasser or target. Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. "
The letter was released October 26, 2010, as part of a campaign by the Obama administration to prevent anti-gay bullying and other harassment at school, reports the Washington Post. Officials describe the guidance as the most comprehensive to date on how civil rights statutes apply to campus situations that have reportedly led to recent student suicides. Assistant Education Secretary for Civil Rights, Russlynn H. Ali, said "Our goal here is to provide school districts, colleges and universities with details about when harassment can rise to the level of a civil rights violation and what they should be doing about it." The article notes examples provided by Ali, in which she suggests that school officials must follow up after incidents to ensure any hostile environment is eliminated. In situations where discipline alone may be insufficient, school officials should take additional steps such as counseling the perpetrators, publicly labeling incidents as discriminatory and publicizing how students can report harassment. The Washington Post article appears at the link below.]
Source: Washington Post, 10/26/10, By Nick Anderson