In a recent Dear Colleague Letter, the U.S. Department of Education’s Office for Civil Rights (OCR) warned that school districts may violate federal law if they fail to determine whether seemingly isolated incidents of bullying are actually sufficiently serious to constitute a hostile environment in violation of federal anti-discrimination laws. The letter also served as a reminder that federal anti-discrimination laws prohibit bullying based on religion and sexual orientation, not just bullying based on more traditionally recognized bases, such as race, color, country of origin, gender and disability.
The OCR letter did not set forth new law or rules for school districts to follow, but instead reiterated already existing law in the specific context of school bullying, a serious and growing issue for schools across the country. The letter focused specifically on the types of harassment that violate federal anti-discrimination laws enforced by OCR: harassment based on race, color, national origin, sex or disability that creates a hostile environment.
The OCR letter recognized that many schools have implemented anti-bullying policies to address these and other types of harassment or bullying, but made clear that disciplining a student bully under such a policy may not be sufficient. School districts must also consider whether federal, state and local laws impose additional obligations on them when addressing student bullying. If the bullying is based on race, color, national origin (including religion), sex (including sexual orientation) or disability, the school district may need to take additional steps to determine whether the bullying creates a hostile environment and, if it does, to address the bullying and prevent it from recurring. OCR described a number of hypothetical situations, including situations regarding anti-Semitic and homophobic bullying, to illustrate how school districts should address bullying in such situations.
Although the OCR letter does not create any new responsibilities for school districts under the existing laws, it nonetheless suggests that OCR intends to take a hard stance against bullying in public schools. In light of the OCR letter, school districts should:
- Remember that harassment based on religion and sexual orientation may implicate a school district’s responsibility under federal law, not just harassment based on race, color, country of origin, gender and disability
- If the bullying is based on race, color, national origin (including religion), sex (including sexual orientation) or disability, determine whether reported incidents of bullying—even seemingly isolated incidents—warrant further investigation or action, which is required if the bullying is severe or widespread enough to create a hostile environment
- Take affirmative steps to end the harassment and to prevent it from recurring
- Revise policies and procedures to ensure they address bullying complaints in a manner that complies with federal law