The letter, authored by Assistant Secretary for Civil Rights Russlynn Ali and sent Oct. 26 to more than 15,000 school districts, cautions that “by limiting its response to a specific application of its anti-bullying policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment.”
The guidance outlined several policies the department’s Office for Civil Rights enforces: Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin; Title IX of the Education Amendments of 1972, which prohibits sex discrimination; and Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, both of which offer protections for discrimination based on disability. Ali wrote that schools can be held liable when harassment that qualifies under one of those laws is “sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed or ignored by school employees.”
Although there are no federal anti-bullying regulations that specifically prohibit harassment based on sexual orientation or gender identity, Ali noted that such harassment could be interpreted as a Title IX sex-discrimination violation.
Ali proposed a series of hypothetical bullying situations, one of which described a gay high-school student who faced repeated antigay comments and harassment from his peers for his nonconformity to male stereotypes — effeminate mannerisms, nontraditional apparel and membership in extracurricular activities like the school’s drama club.
“Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including LGBT students, from sex discrimination,” Ali wrote. “When students are subjected to harassment on the basis of their LGBT status, they may also, as this example illustrates, be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment.”
In the hypothetical situation, the accused students were disciplined, but Ali advised that the school should have also undertaken longer-range efforts like schoolwide tolerance training, notification of the harassed student’s teachers and monitoring of the locations where the harassment occurred.
In addition to the guidelines, the department also announced that early next year the White House will host an anti-bullying conference aimed at bringing together students, teachers and parents to discuss effective tools to prevent youth bullying.
Joe Solmonese, president of the Human Rights Campaign, welcomed the department’s guidance as an “unequivocal reminder that our nation’s schools are already obligated to respond to incidents of bullying on the basis of a young person’s sexual orientation or gender expression. Now more than ever, the president has an opportunity to put a decisive end to the unequal treatment of LGBT students and push Congress to pass landmark legislation.”
There are currently two proposed federal measures that seek to explicitly outlaw anti-LGBT bullying.
The Student Non-Discrimination Act, spearheaded by out Congressman Jared Polis (D-Colo.), is modeled after Title IX and would prohibit discrimination against students based on sexual orientation and gender identity. The Safe Schools Improvement Act, introduced by Pennsylvania Sen. Bob Casey (D), would require schools that receive federal funding to adopt anti-bullying policies that must be, among other stipulations, LGBT-inclusive.
“Sen. Casey is dedicated to protecting students from harassment and abuse,” said Education Secretary Arne Duncan in a statement this week. “He has shown tremendous courage and leadership by working in Congress to prevent and end discrimination in our schools. Sen. Casey’s work will be a valuable resource as we move forward in ensuring all students are protected from bullying and harassment.”
Jen Colletta can be reached at email@example.com.