On, October 26, 2010, the U.S. Department of Education’s Office for Civil Rights (OCR) took the unusual step of sending a “Dear Colleague” letter to the superintendent of every school district in the nation on the subject of bullying as it relates to federal laws.  In the ten-page letter, an Assistant Secretary for Civil Rights with OCR attempts to summarize school districts’ obligations under federal anti-harassment and anti-discrimination statutes.  The OCR letter clarifies that while school districts may have an obligation to address bullying under state statutes, school board policies or codes of student conduct, there are also requirements under federal civil rights laws to address discrimination and harassment, and in OCR’s view, a school district may fulfill its state or local obligations to address bullying but still fail to comply with its federal responsibilities. 

According to OCR, bullying qualifies as unlawful harassment when it is sufficiently severe or pervasive as to interfere with or limit a student’s ability to benefit from educational services, and further, school districts are responsible for addressing harassment incidents of which a responsible person knew or should have known.  OCR identifies the steps a school district may need to take to remedy harassment, including the possibility of providing “additional services to the student who was harassed in order to address the effects of the harassment, particularly if the school initially delays in responding or responds inappropriately to information about harassment.”  The OCR then describes five hypothetical instances of school-based harassment and how the school district should respond to harassment claims based on race, ethnicity, gender, sexual orientation and disability. 

OCR’s “Dear Colleague” letter imposes greater responsibilities on school districts to combat bullying than any other legal guidance issued to date by any governmental authority.  Namely, the OCR letter requires school districts to remedy all known instances of harassment, without regard to whether the harassment occurs on school grounds or within the school’s authority to address student conduct.  Further, as cited above, OCR’s letter implies that compensatory services for a student who suffers harassment, which the school district did not promptly remedy, may be appropriate.  In addition, the hypotheticals discussed in OCR’s letter impose a significant burden on school districts to not just address particular student complaints, but also to conduct seminars to all students regarding harassing conduct.  While OCR’s letter does not have the force of law, it does signal how OCR intends to enforce federal statutes in complaints brought before it.

These concerns led National School Boards Association’s (NSBA’s) General Counsel to send a letter on December 7, 2010 to the U.S. Department of Education’s General Counsel to express concern that OCR’s letter misreads the law and invites “misguided litigation” against school districts.  Specifically, NSBA’s counsel states that the OCR letter misstates both the definition of unlawful harassment and the obligations of school districts to remedy it, as those matters are defined under applicable Supreme Court precedent.  Further, where OCR’s letter requires districts responding to harassment claims to declare that certain acts are unlawful discrimination or harassment, NSBA opines that this may result in unlawful disclosure of student confidential information.  In addition, NSBA notes that the strict standards imposed by OCR’s letter give short shrift to student First Amendment rights to free speech.  NSBA’s counsel suggests that OCR’s letter will increase federal claims against schools by expanding the definitions of harassment and the required responses.  NSBA urges OCR to reconsider the impact of its “Dear Colleague” letter and issue a clarification which acknowledges the standards imposed by the various state governments and accurately states the present state of federal legal standards.

At present, OCR has not responded to NSBA’s letter or issued any subsequent guidance on the matter.  We will provide periodic updates as this matter develops.  In the interim, school districts must take appropriate steps to ensure that their responses to bullying and harassment meet applicable standards.  The cautious approach is to make sure that reported or known instances of bullying or harassment are evaluated under the district’s bullying policy and code of student conduct and under applicable federal law.  It may be necessary or advisable to consult with the District’s Title IX or other compliance officers to determine whether further remedial action is necessary under any federal statute.  While this may seem like overkill in addressing simple student misconduct, until the OCR clarifies its position, the safest course is the best course.

Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.