In October 2010, the Department of Education Office for Civil Rights issued guidance to address bullying in schools, especially as it relates to federal education anti-discrimination laws. One of those laws, Title IX of the Education Amendments of 1972 (Title IX), prohibits discrimination on the basis of sex. While the language does not specify sexual orientation and gender identity, DOE has made clear that harassment on these grounds, under certain circumstances, violates Title IX.
Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. 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 fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment. [. . .] Had the school recognized the conduct as a form of sex discrimination, it could have employed the full range of sanctions (including progressive discipline) and remedies designed to eliminate the hostile environment.
This past Monday, DOE and the Department of Justice joined with six students and the Anoka-Hennepin School District to file a proposed consent decree (legal agreement) in the US District Court in Minnesota that would resolve complaints of sex-based harassment of middle and high school students in the school district.
In November 2010, the Department of Justice received a complaint alleging that students in the school district were being harassed by other students because they didn’t dress or act in ways that conform to gender stereotypes. The Departments of Justice and Education conducted an extensive investigation into sex-based harassment in the district’s middle and high schools. Many students reported that the unsafe and unwelcoming school climate inhibited their ability to learn. The parties worked collaboratively to draft a consent decree addressing and resolving the allegations in the complaints.
If approved by the court, the consent decree will ensure that the school district:
- Retains an expert consultant in the area of sex-based harassment to review the district’s policies and procedures concerning harassment;
- Develops and implements a comprehensive plan for preventing and addressing student-on-student sex-based harassment at the middle and high schools;
- Enhances and improves its training of faculty, staff and students on sex-based harassment;
- Hires or appoints a Title IX coordinator to ensure proper implementation of the district’s sex-based harassment policies and procedures and district compliance with Title IX;
- Retains an expert consultant in the area of mental health to address the needs of students who are victims of harassment;
- Provides for other opportunities for student involvement and input into the district’s ongoing anti-harassment efforts;
- Improves its system for maintaining records of investigations and responding to allegations of harassment;
- Conducts ongoing monitoring and evaluations of its anti-harassment efforts; and
- Submits annual compliance reports to the departments.
Education is a great equalizer. Yet, students cannot learn if they are afraid to go to school. Students cannot learn if they are being harassed and threatened. Students cannot learn if they are not free to be themselves. Students cannot learn if they feel that school administrators can’t and don’t protect them.
Bullying cannot be a rite of passage in our nation’s schools. Instead, our schools must be safe and nurturing environments that promote learning and full participation by all students. As a parent of three students in public school, I realize how important it is for children to be free from fear so that they can learn and thrive in school every day.
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This administration is committed to combating harassment and bullying. Where we see barriers to educational opportunities, we work aggressively to break down those barriers. In Tehachapi, Calif., following the death of Seth Walsh, a gay student who took his own life, we worked with Department of Education, Office for Civil Rights on an agreement with the school district to amend its policies and provide training to address and prevent sex-based harassment. At South Philadelphia High School, we engaged in a comprehensive consent decree to address the severe and pervasive harassment of Asian American students. And in Owatonna, Minn., we entered a settlement agreement to resolve an investigation into the racial and national origin harassment and disproportionate discipline of Somali-American students at Owatonna High School. Last year, the Department of Education produced a comprehensive guidance on bullying. We will use every tool in our law enforcement arsenal to ensure that all students have access to equal educational opportunity.
The consent decree comes on the eve of another important anti-bullying action, and we need your help.