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