Published Online: October 26, 2010

Bullying May Violate Civil Rights, Duncan Warns Schools

Certain types of harassment rooted in sex-role stereotyping or religious differences may be a federal civil rights violation, according to new guidance from the U.S. Department of Education’s office of civil rights aimed at putting school districts on notice about their responsibilities to address bullying.

“Simply put, we think in this country bullying should not exist,” U.S. Education Secretary Arne Duncan told reporters Tuesday during a conference call to discuss the guidance, which was written as a 10-page letter to school officials. “Students simply cannot learn if they feel threatened, harassed, or in fear.”

Title VI of the Civil Rights Act already prohibits discrimination on the basis of race, color, or national origin; Title IX prohibits discrimination on the basis of sex; and Section 504 of the Rehabilitation Act of 1973, as well as the Americans with Disabilities Act, prohibit discrimination based on disability status.

Many local districts and schools have anti-bullying and harassment policies which bar harassment on the basis of sexual orientation and religion, said Russlyn H. Ali, the department’s assistant secretary for civil rights, in a briefing in advance of the document’s release.

But even when local agencies do not have such policies, federal law imposes obligations on schools to protect students, she said. For example, harassment of gay, lesbian, bisexual, or transgendered students may be a form of gender stereotyping and therefore a federal offense, the department said. Federal civil rights law also protects against harassment of members of religious groups “based on shared ethnic characteristics.” Ms. Ali said the department received about 800 complaints in fiscal 2010 alleging harassment, which accounted for about 12 percent of the complaints received.

Examples Cited

The department offered some real-life cases as examples in its letter.

In one instance, a gay high school student was harassed because he did not conform to stereotypical notions of how teenage boys are expected to act or appear. Because the student identified as gay and because the harassment was homophobic, the school did not recognize the discrimination as being covered under Title IX.

That response was incorrect, the department said. “It can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity or femininity,” the letter said.

With regard to religion, the department said in its letter that “harassment against students who are members of any religious group triggers a school’s Title VI responsibilities when the harassment is based on the group’s actual or perceived shared ancestry, or ethnic characteristics, rather than solely on its members’ religious practices.”

The department cited an example of anti-Semitic harassment where two 9th-graders forced two 7th-graders to give them money, saying, “You Jews have all of the money, give us some.” Such behavior is based on the students’ “actual or perceived shared ancestry or ethnic identity as Jews, rather than on the students’ religious practices,” said the letter, and as such is discrimination under Title VI.

Ms. Ali said that the guidance is a reiteration of guidance that had come from the Bush administration in 2001 and 2006. “This is not new law,” she said.

However, this is the first time the department has addressed these types of discrimination in the context of current concerns about bullying, she said. Also, “it is certainly the first time the department has made it clear that the gay, lesbian, bisexual, and transgendered community is protected by Title IX if they are bullied or harassed for not conforming to stereotypical gender roles.”

Guidance Welcomed

Eliza Byard, the executive director of the Gay, Lesbian and Straight Education Network, an advocacy group based in New York, said she was “struck by the fact that this administration is trying to do the most with what they have” in terms of existing civil rights protections.

“I think we’re coming up against the edge of what’s possible” under current law, she said. Congress should pass laws specifically offering protections to students based on sexual orientation, she said. “We can’t have people dancing around, trying to figure out how to do the right thing legally.”

Khadija Athman, the national civil rights manager for the Council on American-Islamic Relations in Washington, a Muslim advocacy group, said that the Education Department has reached out to schools before, to remind administrators, for example, that students may wear head scarves as part of their freedom to exercise their religion.

“This is a positive step,” Ms. Athman said.

But Kenneth S. Trump, a school security expert based in Cleveland, said that the Education Department was overreaching and under pressure from gay-rights organizations.

“What are the implications of this when the federal civil rights officials are showing up on your doorstep?” he said.

In outlining the guidance, Ms. Ali stressed that “the civil rights law protects all students. ... It does not absolve school districts of the right to protect students.” The unique effects of discriminatory harassment may demand a different response than other types of bullying, she said.

The department had been working on this guidance for several months, but recent highly publicized cases of anti-gay, anti-Muslim, and sexual harassment lent some urgency to its work, Ms. Ali said.

None of the recent cases are currently under review by the Department of Education’s office of civil rights, Ms. Ali said, but if complaints were received, they would be “vigorously investigated.”

Vol. 30, Issue 10

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