Published Online: November 2, 2010
Published in Print: November 3, 2010, as Guidance Says Bullying May Violate Civil Rights

Guidance Says Bullying May Violate Civil Rights

School Officials Cautioned Amid High-Profile Concern Over Student Harassment

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.

“Students simply cannot learn if they feel threatened, harassed, or in fear,” Secretary of Eduction Arne Duncan told reporters last week during a conference call to discuss the guidance, which was written as a 10-page letter to school officials.

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 districts and schools have anti-bullying and harassment policies that bar harassment on the basis of sexual orientation and religion, said Russlynn 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 genderstereotyping 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 cases received.

Examples Cited

The department offered examples drawn from actual cases.

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 cited an example of anti-Semitic harassment in which 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 the guidance is a reiteration of what 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.”

Directions 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.

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.

Recent highly publicized cases of anti-gay, anti-Muslim, and sexual harassment lent some urgency to issuance of the guidance, Ms. Ali said. She said if complaints were received, they would be “vigorously investigated.”

Vol. 30, Issue 10, Page 12

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