PUBLIC POLICY LIABILITIES
Bullying on Campus: An Update
BY SAUNDRA K. SCHUSTER
Bullying, a behavior that has been normalized and even romanticized in pop media, is a decades-long concern and frustration for colleges and universities. Numerous bullying incidents in 2010 renewed national attention on the impact of bullying. Now this form of harassment has been identified by the U.S. Department of Education Office of Civil Rights (OCR) as a civil rights issue when the target of the bullying is a member of a protected class and the bullying extends beyond protected speech to be severe and pervasive.
On October 26, 2010, the OCR, issued a “Dear Colleague”
letter to all colleges and universities addressing bullying on
campus and each college’s obligation to respond appropriately
to discriminatory actions that accompany bullying behavior.
The OCR letter explains how student misconduct that falls
under the rubric set forth for discriminatory behavior will
trigger obligations on the institution to respond promptly
and appropriately. (See Title vI of the Civil Rights Act of
1964 ( 42 U.S.C. §2000d et seq.); Title IX of the Education
Amendments of 1972 ( 20 U.S.C. §1681 et seq.); Sec. 504 of
the Rehabilitation Act of 1973 ( 29 U.S.C. §794) and Title
II of the Americans with Disabilities Act of 1990 ( 42 U.S.C.
§12131 et seq.)) Similar to the response required in cases
of sexual assault, institutions must recognize when bullying
behavior crosses the line of free expression (for public institutions) and moves into discriminatory behavior.
Institutions must apply a two-step analysis in determining
when bullying behavior becomes discriminatory. First, the
target of the discrimination must be a member of a protected
class as defined by federal discrimination laws. The category of
protected class may also be expanded by state or institutional
policies that address sexual orientation or gender identity.
Next, the behavior must rise to the level of severe and pervasive. Such behavior denies an individual educational benefits
or participation in activities and falls on the side of discriminatory behavior.
Colleges and universities cannot merely rely on official
reports of bullying behavior. The OCR uses a “reasonably
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“Colleges and universities
work hard to address
bullying-type behavior,
with a focus on preventive
programming to address
hazing behavior of groups
and organizations.”
known or should have known” knowledge standard, which
means that institutions must create and maintain a structure
of reporting and response that incorporates designated sources
of information. In addition, institutions are required to train
faculty and staff on appropriate reporting and response.
