Oct 27, 2010
Yesterday, October 26th 2010, the US Department of Education's Office for Civil Rights issued a "Dear Colleague" letter to state departments of education and local school districts to clarify the relationship between bullying and discriminatory harassment under the civil rights laws enforced by the Office for Civil Rights (OCR). Those laws prohibit bullying based on traits such as-race, color, national origin, sex, and disability.
The letter provided specific examples in which individuals were bullied in school based their race, color, national origin, gender, or disability. For example:
• Title IX Sexual Harassment: After enrolling in a new high school, a female student had a brief romance with another student. After the couple broke up, other male and female students began routinely calling the new student sexually charged names, spreading rumors about her sexual behavior, and sending her threatening texts and e-mails. Though a teacher and athletic coach witnessed the name-calling and heard the rumors they treated it as the normal hazing of a new student. They also noticed the student's anxiety and decreased class participation. The school,however, did nothing other than leaving it up to the new student to work things out with her harassers.
OCR notes that the school should have trained its employees on what conduct constitutes sexual harassment. Moreover, the school should have made it clear that staff could not require the student to confront her harassers. The school should have conducted an investigation and taken interim measures to separate the student from her harassers. OCR also suggest additional training regarding harassment for staff and students and offer tutoring, other academic assistance, or counseling to help remedy the effects of the harassment.
• Section 504 and Title II ADA Disability Harassment: Several classmates repeatedly called a student with a learning disability "stupid," "idiot," and "retard" while in school and on the school bus. On one occasion, theses students tackled him, hit him with a school binder, and threw his personal belongings into the garbage. The student complained to his teachers and his guidance counselor. He was offered counseling and a psychiatric evaluation, but the school did not discipline the offending students. The harassment continued and the student began to fail academically, became depressed, and often refused to go to school.
In this example OCR notes that the school failed to recognize the misconduct as disability harassment under Section 504 and Title II of the Americans with Disabilities Act. The school violated 504 and the ADA by failing to investigate and remedy the misconduct. The targeted student might have benefitted from counseling. But in this example, since the school failed to identify disability harassment, it did not adopt a comprehensive approach to eliminating the hostile environment. Steps to eliminate the hostile environment should include disciplining the harassers, training staff on recognizing disability and responding effectively to harassment of students with disabilities, and monitoring to ensure the harassment does not resume.
The guidance letter provides other examples of bullying and guidance on the responsibility of schools to proactively prevent such unlawful behavior. Once a school knows or reasonably should know of a possible student-on-student harassment, the school must take immediate action to investigate and determine what occurred. If harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment, and prevent its recurrence. These duties are a school's responsibility regardless of whether the student makes a complaint, asks the school to take action, or identifies the harassment as a form of discrimination. The Office for Civil Rights does offer technical assistance to help schools comply with civil rights. A school should contact the OCR enforcement office serving the school's jurisdiction for technical assistance
Additionally, a complaint of discrimination can be filed by anyone who believes that a school has discriminated against someone on the basis of race, color, national origin, sex,disability, or age. Information about how to file a complaint with OCR can be found at its website.
Finally, the OCR provides an excellent background and fact sheet regarding this serious issue. For an additional discussion of disability harassment please see my previous post Sticks and Stones can Break Your Bones But Words can Break Your Heart: Preventing Disability Harassment in Schools.
