There is a series of “Dear Colleague” letters from the U.S. Department of Education to school authorities due to which education standards on bullying are emerging. In 2010, the department’s Office for Civil Rights sent such letters to schools nationwide. The letters provided guidance on how to deal with bullying. The letters highlighted the forms of bullying constituting harassment under federal law. As the letter advised, bullying of an individual based on race, color, national origin, sex or disability can be a civil rights violation if it is sufficiently severe, pervasive or persistent that it interferes with a student’s ability to benefit from the school’s services, activities or opportunities.
The letter also pointed out that when a student who is being bullied is also identified as a victim of a federal civil rights violation, the school has more than an obligation to stop the violation. The schools must “eliminate any hostile environment and its effects” as well as take steps to “prevent the harassment from recurring” the letter said.
These obligations of the schools, are an effort to improve student behavior and overall school climate beyond just disciplining the blamed student. According to this letters, schools need to train staff on the obligations, have clear policies and provide help to those who has been bullied and harassed.
In 2011, another Office for Civil Rights Dear Colleague letter advised that the Title IX protection against gender-based harassment would include students harassed on the basis of their perceived sexual orientation. This was an important extension because harassment based on sexual orientation is pervasive and sexual minority students report high levels of bullying.
In 2013, the U.S. Department of Education issued guidance to school authorities emphasizing their obligation to prevent the bullying of students with disabilities, stating, “whether or not the bullying is related to the student’s disability, any bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE under the IDEA that must be remedied.” A follow-up letter sent to school personnel a year later to reiterate that the bullying of a student with a disability can result in a denial of FAPE highlights schools’ obligations to address behavior that may constitute disability-based harassment, and explains schools’ responsibilities to remedy any denial of FAPE.
However, there is a key problem with the use of civil rights law to prevent bullying. As there are several group protected, some students who have been bullied do not fit into those protected groups. On the other hand, the student may fit into the group but the characteristics targeted by the bully do not fit to the protected characteristics.
As a result, applying civil rights laws regarding harassment to cases of bullying — however beneficial to many students — creates gaps and ambiguities that do not protect all bullied students. Although students with disabilities have an explicit right to a FAPE mandated by IDEA, students without disabilities are not included under this legislation.
A natural question is why students without disabilities do not have a comparable right to FAPE. The answer is that federal law does not give all children the right to public education — that has historically been the domain of state and local governments.