Education Department to Schools: Protect Against Bullying or Risk Federal Funding

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The Department of Education (DOE) notified schools and colleges today that it intends to penalize systems that refuse to address pervasive problems with bullying that violate student’s civil rights protections. And even though federal laws do not specifically extend federal protections to gay youth, the department expects efforts to protect them..

The heads-up came in the form of a guidance letter written by DOE Assistant Secretary for Civil Rights Russlyn Ali and sent to every U.S. public school district and over 5,000 colleges and universities across the country, urging officials to be aware of civil rights laws that require schools to address bullying cases actively.

The letter specifically draws a connection between harassment of gay students and gender-based harassment – defined as action that either reinforces gender stereotypes or singles out individuals who may not conform to them – and states that students who experience this type of bullying are legally defended under Title IX. White House Domestic Policy Council Director Melody Barnes said the letter is the department’s first comprehensive effort to define harassment of gay students.

“We’re going to really challenge places that have their heads in the sand and aren’t displaying the courage to move ahead in the right direction,” said Education Secretary Arne Duncan.

Duncan said state to state discrepancies in laws on harassment are one reason why the letter is important. By clarifying the ways in which existing federal law applies to all districts and higher education institutions, the department aims to raise awareness of the issue across the country. Though some states have worked to strengthen anti-bullying policies, others remain limited in their acknowledgement of what Duncan described as problem that can leave students feeling powerless to defend themselves.

Federal efforts to increase awareness of bullying come at a time when national attention has become focused on the violent side of harassment. Half of all students said they have bullied someone in the past year, according to a study of high school students conducted this year by the Josephson Institute Center for Youth Ethic, and 47 percent said they have been bullied in a way that seriously upset them. One in four students who were surveyed said that they do not feel safe at school.

For gay teens and young adults, recent news indicates the issue is even worse. Five gay students have committed suicide in a little over a month. One of those suicides, by a 15-year-old Indiana boy, sparked an impromptu online campaign called “It Gets Better.” The campaign started with a YouTube message from media columnist Dan Savage and has grown to include messages from President Barack Obama and Secretary of State Hillary Clinton.

The letter provides five hypothetical examples of situations in which students were harassed due to race, color or national origin, gender, or disability. Those groups, Ali said, are specifically protected by three pieces of federal legislation Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Title II of the Americans with Disabilities Act of 1990.

Discrimination and harassment based on sexual orientation is not covered specifically by any of those laws. But the department believes that Title IX includes protections that can and should be used to police most bullying of gay youths.

“Although Title IX does not prohibit discrimination based solely on sexual orientation,” Ali said, “Title IX does protect all students, including [LGBT] students, from sex discrimination.”

But the guidance interprets Title IX to mean that discrimination exists if “students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or failing to conform to stereotypical notions of masculinity and femininity.”

The guidance urges schools to use those standards to protect their gay students.

“When students are subjected to harassment on the basis of their LGBT status, they may also…be subjected to forms of sex discrimination prohibited under Title IX.”

The DOE letter stresses that schools are legally responsible to take action in all cases of bullying that have come to school officials’ attention – or about which they “reasonably should have known.”

The latter category includes instances in which schools “may become aware of misconduct, triggering an investigation that could lead to the discovery of additional incidents that, taken together, may constitute a hostile environment.” This gray area may make it difficult to hold school officials accountable for failing to take action. It’s a problem that is further exacerbated by differences in regulation across districts and states that may render some types of bullying, such as hazing, subject to state law.

Though the department wants to focus on “community-level” solutions – uniting parents, students and school officials and workers to report and prevent instances of harassment – Duncan said that the federal government is “more than prepared to step in” should schools violate what officials consider to be a civil rights law. Barnes added that schools who fail to comply “could be stripped of federal education money.”

Duncan hopes, however, that it won’t come to that.

“If the federal government has to get involved, if we have to step in, that means the problem has been ignored for far too long,” he said. “And there’s simply no excuse for that.”

The White House plans to hold a conference early in 2011 to provide community leaders with access to tools to combat bullying and harassment. Additional resources and information are available online at bullyinginfo.org, a website launched by the representatives, from 12 federal agencies, who are members of the Interagency Working Group on Youth Programs.

The guidance letter has already generated statements of public support. Senator Tom Harkin (D-Iowa, Chairman of the Senate Committee on Health, Education, Labor and Pensions, applauded the department’s announcement, as did the National Council of La Raza, the largest national Latino civil rights and advocacy organization in the country.

Laura Murphy, a legislative director for the American Civil Liberties Union, said the guidance is good but not nearly enough when it comes to federal protection for gay youth.

“The Obama administration took a vital step today,” Murphy said, but “there is still a dangerous gap between the protections recognized in the guidance and the protections that LGBT students need and deserve. Though the guidance goes far under current law, it does not replace having a federal statute that explicitly protects LGBT students.”