Fed to schools: Law requires actions against bullying

WASHINGTON -- The U.S. Department of Education is issuing guidance to school officials today (Oct. 26), reminding them that federal law requires schools to take action against bullying — including gender-based and sexual harassment of LGBT students.

This is the first time the department has detailed the responsibilities educators have to protect LGBT students against such harassment, which is forbidden by Title IX and enforced by the department’s Office for Civil Rights (OCR). Title IX prohibits discrimination “based on sex” in federally funded programs.

“We think this could not be any more timely or important,” Russlynn Ali, Assistant Secretary for OCR, said at a press briefing Monday. “If students don’t feel safe in school, they simply cannot learn.”

The announcement comes after widespread media coverage in September and October of a string of bullying-related suicides by LGBT students or those perceived to be. But it also fulfills a promise to issue such guidance – a promise made by U.S. Secretary of Education Arne Duncan in early August at the department’s first-ever Bullying Prevention Summit.

The 10 pages of guidance make clear that, although current laws enforced by OCR do not explicitly address harassment based on sexual orientation, they do prohibit sexual harassment and gender-based harassment directed at LGBT students or those perceived to be.

The approach is similar to that taken by the administration elsewhere. The U.S. Department of Housing and Urban Development in July issued guidance explaining how gender and disability discrimination protections may cover gender-identity discrimination or discrimination based on real or perceived HIV/AIDS status — even though the Fair Housing Act (FHA) does not explicitly cover sexual orientation -- or gender identity-based housing discrimination.

The U.S. Justice Department also intervened in January in the case of a New York teen who was bullied and physically hurt for being effeminate. Justice Department lawyers argued that the federal law against gender-based discrimination also applied to gender expression. In an out-of-court settlement, the school district agreed to pay the boy $50,000, legal fees, and the cost of therapy.

Today’s guidance is being issued in the form of a “Dear Colleague” letter from Ali to administrators at all public and private schools, colleges and universities, including the country’s 15,000 school superintendents. It reminds them of their obligations to protect students from discrimination based on sex (Title IX), race, color, or national origin (Title VI), and disability (Section 504 and Title II), all statutes enforced by OCR.

The department also plans to hold workshops around the country in early 2011 to train educators about their obligations and the resources available to help them.

Kevin Jennings, Assistant Deputy Secretary for the Office of Safe and Drug-Free Schools (OSDFS) at the Department of Education, said at the press briefing that they would also be conducting a grassroots campaign to inform educators and others through community-based groups and the website Bullyinginfo.org.

If schools violate the anti-discrimination laws enforced by OCR, Ali said, the department could withdraw all federal funds or place conditions upon them. She noted, however, that the department has not done so with any school district in the last decade, for any type of civil rights violation, “because they usually come into compliance during negotiation.”

She also noted that the department has not received any complaints in recent years on LGBT harassment. But Jennings suggested the lack of complaints may have been “because people have not seen federal authorities as a receptive audience” and because of the lack of a federal civil rights law that includes sexual orientation.

The guidance is the latest in a series of Department of Education moves to address school bullying – moves initiated even before the recent suicides. In addition to the August 2010 Summit, the department in 2009 formed a federal task force on bullying, with representatives from the Departments of Justice, Health and Human Services (HHS), Agriculture, Defense and Interior.

The Department of Education also announced Oct. 4 the awarding of $36 million in grants to 11 states from a new Safe and Supportive Schools program. The states must survey students, family, and staff about school safety issues, including bullying, and direct grant money at the problems where students say there is the biggest need.

It has also worked with HHS on a Stop Bullying Now campaign that is being expanded from middle school students to elementary school students.

And early next year, the White House plans to host a conference to raise awareness about bullying and harassment and share resources for students, parents, educators, and others.

Two bills in Congress, however, seek to provide greater protection for LGBT students, beyond bullying that is based on sexual harassment or gender stereotyping.

The Student Nondiscrimination Act (SNDA) would prohibit discrimination — including harassment — on the basis of real or perceived sexual orientation or gender identity in any program receiving federal funds.

The Safe Schools Improvement Act (SSIA) would require schools receiving federal funds to implement and report on LGBT-inclusive anti-bullying programs. Versions of both bills are still pending in House and Senate committees.

Federal departments and their employees are prohibited by law from lobbying Congress about specific legislation, but Ali said Monday that the Department supports the goals of both bills. She said that, as the department works to reauthorize the Elementary and Secondary Education Act, the major act guiding educational policy, “we will certainly use all of the policy tools within our disposal to try and prevent this kind of harassment from occurring.”

She noted that the guidance issued today is “about using the tools within our disposal now.”

Jennings said the new guidance was the first step to letting people know that, “in this administration, we plan to apply the letter of the law to the fullest extent of the law in order to extend the greatest level of protections humanly possible to LGBT students.”

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