Certain types of harassment rooted in sex-role stereotypes or religious differences may be a federal civil rights violation, even though members of those groups are not specifically protected in federal law, according to new guidance released today by the U.S. Department of Education’s office of civil rights.
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 that go beyond those protected groups, said Russlyn H. Ali, the department’s assistant secretary for civil rights.
But even when local agencies do not have such policies, federal law imposes obligations on schools, 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 religious groups “based on shared ethnic characteristics.”
The department offered some cases as examples in its “Dear Colleague” letter sent to schools, colleges, and universities. In one instance, a gay high school students 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 is 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 religion, the department said in its letter, "...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 of a Jewish student, and also an incident in which two non-Jewish were subjected to anti-Semitic insults based on ethnic stereotypes.
In a press conference, Ali said that the guidance from the department 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.
“The civil rights law protects all students,” Ali said. “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, Ali said. One recent high-profile case was the death of Tyler Clementi, a Rutgers University freshman who jumped off the George Washington bridge in New York City after his roommate secretly recorded him with another male student and put the video online. In another case, a 15-year-old in Minnesota hanged himself after enduring what friends said was frequent harassment because of his sexual orientation.
None of the recent cases are currently under review by the Department of Education’s office of civil rights, Ali said, but if complaints were received, they would be “vigorously investigated.”
The department says it plans to hold technical assistance workshops in 2011 to help schools understand their responsibilities, and to provide resources to help them.
A full story with more reaction and examples from the department’s guidance is posted at edweek.org.