August 14, 2018
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Group Challenges Ed Dept Civil Rights Bullying Order

ALEXANDRIA, VA - The National School Board Association's (NSBA) General Counsel is asking the Department of Education to clarify or reconsider portions of its recent guidance to schools on bullying and harassment related to federal civil rights laws, saying that the guidance would have many unintended consequences and could be extremely difficult for schools to implement.

That guidance, issued as a “Dear Colleague” letter on Oct. 26, warned 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 anti-discrimination laws enforced by the agency’s Office of Civil Rights.

NSBA attorneys met with representatives from the Education Department this week and also sent a letter detailing NSBA’s concerns about the guidance. They expect the Education Department to issue a response to those concerns and to continue to work with NSBA staff to communicate their enforcement positions and how those would be enforced. VIEW LETTER HERE

“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.

The enforcement position taken in the Education Department’s letter differs from the legal precedent set in a 1999 case, Davis v. Monroe County Board of Education, in which the Supreme Court ruled that schools could be held liable under Title IX for student-on-student harassment when the school was aware of the situation but did not take action to stop it. That ruling significantly increased schools’ obligations to recognize and respond to harassment, Negron says.

However, the Education Department’s enforcement position as stated in the guidance would further broaden the standard set by the Davis ruling by advising that school officials would be responsible if they “reasonably should have known” about a situation. It also would broaden Davis’s cumulative standard that harassment must be “severe, pervasive, and objectively offensive” to allow any of the three factors to qualify.

Ultimately, any teasing or bullying incident related to sexual orientation or with a religious component could be eligible for remediation, Negron writes.

NSBA is urging the Education Department to recognize that local school officials would have a better understanding of an individual situation, and should not be second-guessed by courts.

“The professional judgment of educators is key to addressing the problem of bullying,” Negron writes.


National School Boards Association, founded in 1940, represents state associations of school boards and their more than 90,000 local school board members throughout the United States. NSBA advocates for equity and excellence in public education through school board leadership working with and through their state associations. NSBA advocates local school boards as the ultimate expression of grassroots democracy.

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