The Office of Civil Rights’ (OCR) “Dear Colleague” letter that outlines guidance on school bullying and harassment is not consistent with court decisions, attendees of the Council of School Attorneys’ School Law Seminar heard at a session on April 7.
The guidance “doesn’t reflect high court precedent or the consensus of the circuit courts,” said Todd Clark and Karla Schultz, attorneys with Walsh, Anderson, Brown, Gallegos, and Green.
The dilemma for districts is that they can be sued by both the victim and the perpetrator depending on what actions they take. Perpetrators can say the district violated their First Amendment rights to freedom of speech.
Clark and Schultz had five suggestions for school district lawyers dealing with the OCR guidance.
1. Follow OCR guidance, despite its broad sweep.
2. Focus on protected classes under federal and state anti-discrimination laws.
3. Using actual or reasonable forecasts of substantial disruptions is the best guiding principle.
4. Don’t do nothing, but don’t do too much in investigations and actions. Do what’s appropriate and document what you do.
5. Have respected anti-bullying programs in place.
“If we are just paying attention to bullying conduct and bullying policy only, we may be ignoring what is unlawful discriminatory conduct of students toward each other,” said Clark. “Schools must do more than discipline the bully. They must make sure what they do is effective.”