Superintendent's Memo #283-10

State seal, Commonwealth of Virginia

COMMONWEALTH of VIRGINIA
Department of Education

November 19, 2010

TO: Division Superintendents

FROM: Patricia I. Wright, Superintendent of Public Instruction

SUBJECT: Guidance Regarding Bullying & Civil Rights Violations

On October 26, 2010, Russlynn Ali, Assistant Secretary for Civil Rights in the U. S. Department of Education's Office for Civil Rights (OCR), issued guidance regarding bullying in the form of a "Dear Colleague" letter sent to schools, colleges and universities. This guidance makes clear that while current laws enforced by the OCR do not protect against harassment based on religion or sexual orientation, they do include protection against harassment of members of religious groups based on shared ethnic characteristics as well as gender and sexual harassment of gay, lesbian, bi-sexual, and transgender individuals. Therefore, some student misconduct that falls under a school's anti-bullying policy may also trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the OCR. By limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether a student's misconduct also results in discriminatory harassment.

The letter specifically addresses public schools' legal obligations under laws enforced by the OCR. Additionally, the letter provides examples of harassment and illustrates how a school should respond in each case. When responding to incidents of misconduct, schools should keep in mind that the label used to describe an incident does not determine how a school is obligated to respond. Rather, the nature of the conduct itself must be assessed for civil rights implications. Also, when the behavior may trigger the civil rights laws, school administrators should look beyond simply disciplining the perpetrators.

A school's investigation should be prompt, thorough, and impartial, and if it reveals that discriminatory harassment has occurred, school officials must take effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring. These duties are a school's responsibility even if the misconduct also is covered by an anti-bullying policy, and regardless of whether a student has complained, asked the school to take action, or identified the harassment as a form of discrimination.

School divisions are reminded of the Board of Education's Student Conduct Policy Guidelines required by law (ζ 22.1-279.6 of the Code of Virginia). The guidelines are intended specifically to aid school boards in implementing student conduct policies. Local school boards are required to adopt and revise regulations on codes of student conduct that are consistent with, but may be more stringent than the Board's guidelines. A sample conduct standard regarding bullying is included in the revised 2009 Virginia Student Conduct Policy Guidelines. These guidelines may be downloaded at: http://www.doe.virginia.gov/boe/guidance/safety/student_conduct.pdf.

The U. S. Department of Education's Office for Civil Rights plans to hold technical assistance workshops around the country in early 2011 to help educators better understand their obligations and the resources available to take prompt and effective steps that will end harassment and bullying in schools and on college campuses. Division superintendents will be contacted as information becomes available. The OCR has provided a national database of effective anti-bullying programs that can be retrieved at www.bullyinginfo.org. The full text of the Dear Colleague letter can be found at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html.

For more information, you may contact Dr. Sandra E. Ruffin, director of federal program monitoring, at Sandra.Ruffin@doe.virginia.gov or (804) 225-2768. You may also contact Mrs. Bonnie B. English, civil rights monitoring specialist, at Bonnie.English@doe.virginia.gov or (804) 225-2618, or you may contact Ms. Jo Ann Burkholder, specialist for safe and drug-free schools, at Joann.Burkholder@doe.virginia.gov or (804) 371-7586.

PIW/BBE/dct