U.S. Hits Hard on Bullying

October 27, 2010

A student at Emory University told a fellow reveler at a fraternity party early Saturday morning that he was gay. In return, he was allegedly showered with anti-gay slurs and dragged out by his neck as onlookers cheered, according to the Emory Wheel. Though the incident is still under investigation, it has already prompted calls for greater campus harmony.

Incidents like this, and the suicide last month of the Rutgers University student Tyler Clementi, could grow rarer, say legal experts and student advocates, following the U.S. Department of Education’s release Tuesday of anti-discrimination guidelines.

The "guidance letter," reportedly in the works for months, tells schools, colleges and universities that bullying should be treated as more than just a breach of campus codes; it also must been seen as a possible violation of federal law.

"I am writing to remind you," wrote Russlynn Ali, assistant secretary for civil rights, "that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights."

Though Ali’s letter did not stake out any new policy ground, it did signal the Obama administration’s tighter embrace of its duty to police civil rights infractions.

It also more conclusively fleshed out how existing laws will be applied. Most pointedly, it made clear that campus officials must take immediate and appropriate action to impartially investigate harassment allegations and respond in a way that is "reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring." If not, the full powers of the Department’s Office of Civil Rights will be called upon, Education Secretary Arne Duncan warned. "Are we putting people on notice? The answer is yes," he said. "If we have to, we’re more than prepared to step in."

In the Emory case, the university already has affirmed its commitment to providing a "safe, inclusive and welcoming environment" for everyone, as well as its intolerance for discrimination on the basis of sexual orientation, according to a statement attributed to John L. Ford, senior vice president for campus life.

The student, unnamed by the campus newspaper, wants to use the incident as a learning opportunity for Emory students, according to Michael D. Shutt, director of Emory’s office of Lesbian, Gay, Bisexual and Transgender life. Such campus-wide efforts are welcome, according to the Department of Education’s letter. It recommends not just separating the victim and perpetrator, but also rewriting policy, if necessary, and educating the wider community.

"If there’s a culture toward being discriminatory or whatever ‘-ism’ you want to insert there, if there’s a culture there, the institution as a whole has a responsibility to shift that culture or at least educate people," said W. Scott Lewis, president of the Association for Student Conduct Administrators and a partner in the National Center for Higher Education Risk Management. "In the world of student conduct, everything is about accountability and education." He viewed the letter’s release as properly framing bullying and harassment in the context of civil rights.

Advocates for gay and lesbian students and for Jewish students enthusiastically greeted the release of the letter as bolstering protection of victimized groups. "This is a bold step," said Shane Windmeyer, executive director of Campus Pride, a Charlotte, N.C., group advocating for safer college environments for lesbian, gay, bisexual and transgender students. Windmeyer was especially pleased that the department signaled its willingness to use Title IX, the 1972 law barring sex discrimination, to guard against abuses based on sexual orientation.

Though federal law does not explicitly protect students on the basis of sexual orientation, the letter spells out a more expansive view, one that says sex discrimination can be punished if students are harassed "for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity." To Windmeyer, such language is "a great step forward."

Rep. Brad Sherman, D-Calif., hailed the letter for applying Title VI of the Civil Rights Act of 1964 to incidents of anti-Semitism. Though Title VI does not apply to religion, the letter, here too, stakes out an expansive view. It cites as actionable discrimination against students on the basis of "actual or perceived shared ancestry or ethnic characteristics."

"The policy is now clear," Sherman said in a statement. "Colleges and universities will no longer be permitted to turn a blind eye when Jewish students face severe and persistent anti-Semitic hostility on their campuses. The schools will now be compelled to respond."

Colleges’ responses are mandatory, even if a student does not formally file a complaint, according to the letter. In fact, college and university administrators are on the hook for addressing harassment incidents about which they know or "reasonably should have known," wrote Ali. Such an expectation is troubling to Ada Meloy, general counsel for the American Council on Education, especially because the letter applies both to K-12 schools and to colleges and universities.

"Certainly, in a K-12 environment, there are teachers who come and go in hallways. It’s different from a higher ed situation," said Meloy. "It’s very difficult for institutions to meet a ‘should have known’ standard — especially when it’s often applied in hindsight."

The emphasis on K-12 creates other problems for higher education institutions looking for guidance on how to respond. Sorting through what qualifies as harassment and what doesn’t depends largely on the specific facts, department officials emphasized. When campus officials receive guidance letters such as the one released Tuesday, they rely on the examples, culled from actual events, that are cited in these guidelines.

Tuesday’s letter, however, cited four examples — and none dealt with higher education. "The new guidance reinforces the complexity for colleges and universities, as well as K-12 schools, in addressing peer-to-peer harassing behavior," said Ann H. Franke, a lawyer who consults nationally with colleges and universities on academic freedom, workplace issues, and student affairs. "The more fact patterns they put in front of us the more detail we get."

Others saw in the letter an even more unwelcome blending of assumptions of the roles played by K-12 and higher education institutions. The letter urges a paternalistic stance that is inappropriate for colleges and universities and would impinge on the First Amendment right of free speech, wrote Will Creeley, director of legal and public advocacy for the Foundation for Individual Rights in Education, in Philadelphia.

"At an institution of higher education, students may range in age from 17 to 67 and beyond, and must be treated like the adults they are," Creeley wrote in an e-mail. "Our nation’s colleges and universities have a legal duty to respond to instances of true harassment. They must also respect the expressive rights of their students. These dual obligations to protect free speech and prosecute actual harassment need not be in tension."

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