The Education Department is taking an aggressive stance on gay-bashing, telling schools that they could be in violation of civil rights laws and anti-bullying policies if their students tease or harass their peers based on their sexual orientation.
The agency is digging deep into case law that prohibits gender-based harassment. There isn’t a federal civil rights statute that explicitly protects people based on their sexual orientation, but the courts have held that same-sex harassment based on gender stereotypes is unlawful.
The department is adopting a similar tactic on religious bullying, saying it is illegal to harass students on the basis of shared ancestry or ethnic characteristics. Religious discrimination is prohibited in the workplace, but other civil rights statutes don’t mention religion. In schools, the agency wants to prevent harassment against Muslim or Jewish students; officials say there have been instances of provocation.
The guidelines sent to schools and universities today come on the heels of a difficult few weeks for the Obama administration in the area of gay rights. The Justice Department is appealing two court rulings striking down the Defense of Marriage Act and asking to stay an injunction against the military’s “don’t ask, don’t tell" policy. The actions have caused an uproar from liberals and gay rights activists who want the administration to be more supportive of gay rights.
Obama last week recorded a web video as part of the “It Gets Better” campaign reacting to recent suicides of gay and lesbian students. “We’ve got to dispel this myth that bullying is just a normal rite of passage,” he said. Secretary of State Hillary Rodham Clinton and, most recently, AFL-CIO President Richard Trumka have also recorded videos decrying bullying of gays and lesbians.
It’s not the cheeriest message. Trumka said in his video that in almost two-thirds of states, “it’s actually legal to fire someone because of their sexual orientation or gender identity.”
Last month, a Rutgers student threw himself off the George Washington bridge after a gay tryst was posted on the Internet by another student. The incident sparked calls for anti-bullying legislation and a public relations campaign designed to tell gay youth they aren't alone.
The Education Department, meanwhile, is putting more teeth behind bullying and harassment policies when they involve gay, lesbian, bisexual, or transgendered students. The guidelines remind schools that it’s not enough just to pursue gay harassment under anti-bullying policies when civil rights laws dictate that they may have to go further.
Schools must immediately investigate incidences of harassment and take steps to end it, regardless of whether the student has complained, the guidelines say. Schools also may be required to provide training for the perpetrators and the larger school community.
The guidelines also address bullying or harassment in other forms - race, sex, or disability.
Earlier this month, Education Secretary Arne Duncan began a broader campaign against bullying in schools that includes deploying civil rights laws and putting more money toward ending harassment. This month, the department also awarded $38.8 million to 11 states for a pilot program in which individual schools will assess learning and safety conditions within their own buildings, in part by surveying students. The data will be publicly available.