Bullying as a Civil Rights Violation: The U.S. Department of Education’s Approach to Harassment



The Obama Administration recently mounted a high-profile campaign against bullying in public schools, staging a White House conference on bullying prevention, featuring the President and first lady; creating a White House anti-bullying Web site; and issuing new regulatory guidance ostensibly to combat this problem. The administrative core of the campaign has been a new federal bullying policy issued by the U.S. Department of Education’s Office for Civil Rights (OCR) on October 26, 2010. This policy, conveyed in a ten-page “Dear Colleague” guidance letter signed by Assistant Secretary of Education for Civil Rights Russlynn Ali, has been controversial: supporters have welcomed new protections for minority victims of this social problem, while critics have argued that the Obama Administration has effectively created a new right unauthorized by Congress. As a substantive matter, two things must be said about OCR’s new bullying policy. First, it is neither new nor a bullying policy. Rather, it is a repackaging of longstanding OCR interpretations of harassment law. In this sense, as this article will show, it is not what supporters and critics alike have assumed it to be. Nevertheless, it is an important document, because there is considerable policy significance in the Obama Administration’s determination as to which of OCR’s prior decisions merit this form of codification, although its greatest substantive contribution may lie in an area that has received scant attention. Second, it is neither a straightforward application of federal anti-discrimination statutes, nor a faithful application of judicial case law. Instead, it provides OCR’s distinctive and controversial interpretation of its civil rights statutes, deviating in significant ways from the courts’ precedents.

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Available from: Kenneth Marcus, Aug 23, 2014
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    ABSTRACT: To what extent does federal law protect public school students from religious discrimination? Intuitively, one would expect children victimized by religious hate, bias, and other discrimination to enjoy the apex of protections afforded under our constitutional system. Structurally, they are victimized at the convergence of the First and Fourteenth Amendments, denied not only the Constitution's "first freedom" but also the very interest in equal educational opportunity that has been constitutionally preeminent since Brown v. Board of Education. Moreover, school-age children may be peculiarly vulnerable to the sting of hate and bias incidents, so it is especially important to provide them with the full extent of constitutional support. Nevertheless, students of faith have not always received a level of protection commensurate to the importance of the interests at stake. This Article demonstrates that equal opportunity for religious minority students requires, in practical terms, administratively enforced, statutory anti-discrimination protections and reasonable accommodations for student religious needs. This Article further argues that this reform is preferable to an alternative potential legislative reform, which would ensure judicially enforced strict scrutiny for school-based conduct that burdens religious exercise. Finally, this Article anticipates and responds to a number of potential criticisms, including the competing model developed in recent work by Christopher Eisgruber and Lawrence Sager. This Article is based upon a paper presented at the AALS Annual Meeting before a joint session of the Law and Religion Section and the Education Law Section.
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    ABSTRACT: Few civil rights are more central than our freedom from religious discrimination in education. Numerous authorities, including the Supreme Court, numerous lower courts, and at least one Executive Order, have described the prohibition on religious discrimination contained in Title VI of the Civil Rights Act of 1964. Yet no such prohibition exists. Title VI bans discrimination on the base of race, color or national origin in federally assisted programs, including public elementary and secondary schools and most public and private post-secondary institutions, but it does not bar religious discrimination. Moreover, while the list of prohibited classifications was later expanded to include sex, disability, age, and even membership in certain patriotic youth organizations such as the Boy Scouts, it was never enlarged to encompass discrimination on the basis of religion. Some aspects of religious discrimination are limited by such authorities as the Free Exercise Clause, the Establishment Clause, the Equal Access Act, various state and local ordinances, and the rules of some accreditation agencies. However, Congress has never statutorily barred religious discrimination in America in the same manner, and with the same enforcement structure, as in the case of other forms of discrimination. This omission is a conspicuous hole in the fabric of federal civil rights law, which should be corrected by federal legislation. It is important to correct this problem in order to effectuate the primary intent underlying Title VI: to ensure that federal funds will not be used to support activities prohibited under the Constitution. Moreover, religious discrimination has a peculiar dual quality: it not only stigmatizes historically disadvantaged groups but also burdens the exercise of activities which have a particular social value in our constitutional culture. Additionally, racially- or ethnically-motivated discriminators may avoid sanction while acting under the guise of religious bigotry.