The DOE Letter

On October 26, 2010, the United States Department of Education (“DOE”) sent a “Dear Colleague” letter to Boards of Education throughout the United States (the “Letter”). The Letter addressed an ever-present and growing harmful trend in many schools: Bullying.

As outlined by the DOE, “[b]ullying fosters a climate of fear and disrespect that can seriously impair the physical and psychological health of its victims and create conditions that negatively affect learning, thereby undermining the ability of students to achieve their full potential.” This Letter comes in the wake of recent tragic reports of several young people taking their own lives as a result of repeated bullying and taunting for being (or being perceived as being) gay.

With this Letter, the DOE highlighted that bullying in schools or at school sponsored functions is never to be tolerated, and that a school district’s delay in taking immediate and appropriate action to investigate or otherwise determine what occurred may result in the school district’s violation of the victim’s civil rights.  The effects of student-on-student harassment and bullying are severe, and include lower academic achievement; increased anxiety; low self-esteem; depression; deterioration of health; feelings of alienation; absenteeism; self-harm; and suicidal ideation.

Anti-Discrimination Statutes 

Within the DOE, the Office for Civil Rights (“OCR”) enforces several different federal anti-discrimination statutes, including but not limited to, Title VI of the Civil Rights Act of 1964 (“Title VI”) ; Title IX of the Education Amendments of 1972 (“Title IX”); Section 504 of the Rehabilitation Act of 1973 (“Section 504”); and Title II of the Americans with Disabilities Act of 1990 (“Title II”).

While these statutes protect students from harassment by school employees, it also protects students from harassment by other students. Such conduct, when sufficiently serious, can create a hostile environment leading to negative consequences for the victims. Consequently, when peer bullying or harassment is based on race, color, national origin, sex or disability, a school district’s failure to act appropriately in preventing this type of conduct, could result  in the school district’s violation of the victim’s civil rights and lead to legal liability.[1]

The statutes enforced by OCR do not explicitly protect against religious discrimination.[2] However, many religious groups face discrimination based on “actual or perceived shared ancestry or ethnic characteristics,” which is protected under Title VI, and enforced by OCR. The same principle can be applied to those discriminated against on the basis of sexual orientation.  While the statutes do not protect against discrimination based on sexual preference, they do protect against gender-based harassment, which includes sex and sex-stereotyping (i.e., failing to conform to the stereotypical notions of being a man). [3]

What is Harassment?

But what is harassment? And when does a school district’s action (or inaction) rise to the level of violating a student’s civil rights.  In the Letter, OCR defined harassment as including verbal acts and name calling; graphic and written statements  (which may include cell phones or internet use); or other conduct that may be psychically threatening, harmful, or humiliating.  As outlined by the Letter, school districts are responsible for incidents of harassment, when the school district knew or should have known that the harassment was occurring.

Responsibility of School Districts to End Harassment

The Letter also outlines the responsibility of school districts, which includes: 1) immediate action to investigate the incident; 2) if discriminatory harassment has occurred, the school must take steps calculated to end the harassment; 3) eliminate the hostile environment; and 4) prevent the harassment from recurring.

Further, the Letter discusses the appropriate steps that should be used to end harassment, including: 1) separating the accused harasser and the victim; 2) providing counseling for the victim and/or the harasser; 3) taking disciplinary action against the harasser; 4) ensuring students and their families know how to report any subsequent problems; 5) conducting follow-up inquiries; and 6) offering training to school personnel, students, and/or the community concerning discrimination and harassment.

In addition, the Letter stresses the importance of not penalizing the victim of the harassment. For example, if separation is required between the harasser and the victim, the school should not require the victim to change his/her class schedule.  Doing so would validate the harasser’s actions and/or create fear of reporting harassing behavior.  The Letter also emphasizes the significance of looking past the “label” (i.e., teasing or hazing) and rather encourages school districts and administrators to look at the nature of the conduct itself, as that will define the responsibilities of school districts.

Anti-Bullying Legislation

Over the past several years, many states have adopted anti-bullying laws, including Connecticut and New York. These laws set forth mandatory procedures a school is required to take upon notice of such incidents. However, a school’s responsibility does not begin and end with those procedures.  The school districts must ensure that its policies and procedures protect the victim’s civil rights.

President Obama recently established an Inter-agency Task Force on Bullying. In conjunction with that, the Obama administration hosted its first ever National Bullying Summit and launched the Stop Bullying Now campaign, the It Gets Better Project, and a national database of effective anti-bullying programs.   For more information on bullying, please review the following:

The Trevor Project

It Gets Better Project

If you are someone who has been a victim of bullying or harassment or know of someone who is being bullied or harassed, please speak up.  At Maya Murphy, P.C., we have decades of experience dealing with Education Law, harassment or bullying, Special Education Law, and discrimination– often in situations where they run concurrently.  We handle all types of issues, in a broad geographic area, which includes Westport, Fairfield, Greenwich, New Canaan, and the entire Fairfield County area.

[1] While this article addresses civil liability, it should be noted that bullying can have criminal implications for both the bully and his or her guardians.

[2] Other statutes, not enforced by OCR, protect against discrimination on the basis of religion.

[3] The DOE letter addresses laws enforced by OCR only. It does not address a school district’s legal obligation under other federal, state or local laws, which may impose additional obligations on schools.