The Office for Civil Rights (OCR) of the U.S. Department of Education recently issued new guidance on bullying. OCR notes that the purpose of its Dear Colleague is “to remind [school officials] . . . 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 (OCR).”
Given OCR’s enforcement authority and the fact specific nature of sexual harassment and bullying claims that may implicate Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973.pdf, and Title II of the Americans With Disabilities Act.pdf, all educational institutions should read the guidance closely.
But OCR’s letter also bears attention for what it does not include—any discussion of case law since OCR last discussed it way back in 2001. This is odd, as student-on-student sexual harassment cases are particularly fact specific, with court decisions turning on a handful of facts. School district officials would benefit from a substantive review of the cases over the last ten years, noting not only findings of liability, but also instances where school districts deflected liability. Indeed, in the aftermath of the leading Supreme Court case on student-on-student sexual harassment, Davis v Monroe County Board of Education.pdf, 526 U.S. 629 (1999), where the Supreme Court held that a school district could be liable for monetary damages under Title IX for student-on-student sexual harassment, several courts of appeal and district courts have decided student-on-student sexual harassment cases. See Vance v. Spencer County Public School District, 231 F.3d 253 (6th Cir. 2000).pdf, Doe v. Bellafonte School District, 2003 U.S. Dist. LEXIS 25841 (3rd Cir. 2003).pdf, Patterson v. Hudson Area Schools, 551 F.3d 438 (6th Cir. 2009).pdf, Schroeder v. Maumee Board of Education, 296 F. Supp. 2d 869 (N.D. Ohio 2003).pdf, Patenaude v. Salmon River Central School District, 2005 U.S. Dist. LEXIS 29066 (N.D. N.Y. Feb. 16, 2005).pdf, Theno v. Tonganoxie Unified School District, 377 F. Supp. 2d 952 (D. Kan. 2005).pdf, Doe v. Southeastern Greene School District, 2006 U.S. Dist. LEXIS 12790 (W.D. Pa. March 24, 2006).pdf. Educational institutions should be familiar with these cases before responding to student-on-student sexual harassment claims and OCR enforcement actions.