The general counsel of the National School Boards Association is warning the U.S. Department of Education that recent federal guidance to schools on bullying and harassment expands the standard of liability for school officials and "will invite misguided litigation."
"The expansive position on what conduct constitutes 'harassment' protected by federal civil rights laws and what remedial measures are legally required will unnecessarily complicate investigations and possibly expose school districts to liability beyond that envisioned by the Supreme Court," says the Dec. 7 letter from Francisco M. Negron Jr., NSBA's top lawyer, to Charles P. Rose, the Education Department's general counsel.
Negron stresses in the letter that the NSBA shares the Education Department's interest in reducing bullying and harassment in schools. But he cites several concerns about the Oct. 27 "Dear Colleague" letter that went out from Assistant Secretary for Civil Rights Russlynn Ali.
Education Department Press Secretary Justin Hamilton said officials have had conversations with NSBA since receiving the letter.
"We believe that the guidance is clear and lays out what all of our collective responsibilities are to protect the interests of students," Hamilton said in an interview Wednesday.
In the October guidance from the Office for Civil Rights, Ali said certain peer harassment in schools based on sex-role stereotyping or religious differences may amount to violations of existing federal civil rights laws. (Education Week had this story.)
Negron said the OCR letter "significantly expands" the standard of liability for schools over peer harassment beyond the standard established by the U.S. Supreme Court in a 1999 case, Davis v. Monroe County Board of Education. In that case, the court said schools could only be held liable for peer sexual harassment when they had "actual knowledge" of the harassment, and the activity was so "severe, pervasive, and objectively offensive" that it effectively barred the victim's access to an educational program or benefit.
By contrast, the OCR letter, Negron asserts, potentially would hold a school district liable for harassment about which "it knows or should have known," and covers harassment that is "severe, pervasive, or persistent" and that merely "interferes" with or limits participation in an educational program. Each prong of OCR's guidance softens the Davis standard, Negron said.
Negron raises several other concerns about the OCR letter. The letter states that school districts are required to eliminate harassment and the hostile environment it creates, and to prevent it from recurring. But the Supreme Court's Davis decision explicitly rejected the idea that schools must "remedy" peer harassment, Negron said.
Negron also says the OCR letter only "minimally" recognizes the First Amendment free speech rights of students and fails to recognize the constitutional limitations on school districts' ability to discipline students for protected speech.
Negron called on the Education Department it issue a document clarifying that schools must operate under multiple local, state, and federal legal requirements on harassment and bullying.
"It is our hope that through this letter, we have addressed what we see as some unintended legal and practical challenges arising from the [Dear Colleague letter]," Negron wrote.
Negron's letter was first reported this week by the NSBA's Legal Clips web site and its School Board News newspaper.
[UPDATE 11:30 a.m.] In a telephone interview Wednesday morning, Negron confirmed that he has had conversations with the Education Department since the letter. Negron described the conversations about the guidance as "constructive"
"I think we're in a cooperative position," Negron said, although he is awaiting a more detailed reply in writing from the department. "I think our questions were legitimate and they needed some clarification."