On 26 Oct 2010, a “Dear Colleague” letter was sent from the US Dept of Education to all school administrators across the country. In the letter, Assistant Secretary for Civil Rights, Russlynn Ali, made statements which appear to redefine the definition of legal harassment as well as the legal standard for when school officials can be held accountable for preventing it among their students.
“Harassment may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones or the Internet;… Harassment does not have to include intent to harm, be directed as a specfic target, or involve repeated incidents. … [it occurs] when the conduct is sufficiently severe, pervasive, or persistent…,” Ali writes. And further: ”A school is responsible for addressing harassment incidents about which it knows or reasonably should have known.”
What’s new here? A lot:
- First, that schools can be held accountable for cyberbully behavior which takes place off school grounds. Previously, schools were only accountable for acts of bullying which occur on school campuses.
- Second, that schools can be held accountable not only when they have actual knowledge of cyberbully, bully, or harassment behaviors, but also when they reasonably should have known.
- Third, that harassment is redefined to include acts which are “sufficiently severe, pervasive, or persistent.” Previously, the US Supreme Court ruled in 1999, that acts must be “severe, pervasive, and objectively offensive.”
- Fourth, harassment – and by implication bullying and cyberbullying – “does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.”
The letter urges schools to consider bullying and cyberbullying incidents as acts of harassment, in particular when they involve race, color, national origin, sex, or disability. In short, policies which apply to bullying and cyberbullying incidents are not sufficient in these cases - and local school officials have little or no discretion in terms of their response, as viewed by the Dept of Ed.
Response from the National School Board Association
In a written response to this letter, the General Counsel of the National School Board Association has asked the Dept of Ed to clarify its “Dear Colleague” letter.
“Our fear is that, absent clarification, the department’s expansive reading of the law … will invite misguided litigation that needlessly drains precious school resources and creates adversarial school climates that distract schools from their educational missions,” NSBA General Counsel Francisco M. Negron Jr. wrote.
To date, clarification from this letter written in early Dec 2010, has not been provided.
Where Does This Lead? Already Over-Burdened Schools Make Poor Cyber-Cops
This broad reading of Civil Rights laws appears to require schools to perform as cyber-cops among their students. Schools can be sued when they should have known about harassment incidents – which can include negative statements not directed at specific individuals, including statements which were not intended to harm.
This standard appears to be too broad to be reasonably enforceable by most school administrators, who themselves are not likely to be as tech-savvy as their students. The letter also brings to the fore, many urgent and challenging questions, including:
- What is the legal definition of cyberbullying?
- Is cyberbullying subject to Civil Rights laws governing harassment at all times?
- How broadly must school policies be written, in terms of the school’s responsibility to prevent cyberbullying?
- Is a no-tolerance stance practical to enforce?
- Who pays for the enforcement when it involves cyber-sleuthing and tech automation?
- How much discretion should be allowed to local administrators?
At least in terms of this last question, the position of the NSBA is clearly in favor of trusting the judgement of local school officials over the courts.
“The professional judgement of educators is key to addressing the problem of bullying,” Negron writes.
- School Bullying: Admin Can Be Liable For Harassment Online, Off Campus (huffingtonpost.com)
- US Ed Dept Demanding Principals Censor More (yro.slashdot.org)