The Education Department’s Office for Civil Rights (OCR), where I once worked, declared yesterday that schools can be liable for bullying (or anything else) that creates a “hostile educational environment” for a disabled student. Indeed, it says that for students covered by the Individuals with Disabilities Education Act (IDEA), a school can be liable even if their “harassment” is not based on their disability at all, covering such “students with disabilities who are bullied on any basis” if it affects their education.
The guidance it issued yesterday thumbs its nose at the Supreme Court’s Davis decision in a number of ways. It also is regulatory overreaching on many different levels. First, school bullying is largely a matter for states, not the federal government (indeed, 49 states have laws specifically addressing school bullying).
Second, OCR has no jurisdiction over one of the two laws it just interpreted (because that law, the IDEA, is administered by another agency known as OSERS). To get around that, OCR has read that statute into one it does have jurisdiction over (the Rehabilitation Act) by administrative fiat, essentially multiplying the number of the bureaucratic entities that can harass a school district over allegations of “harassment” against the disabled.
At least yesterday’s meddling was well-intended, unlike much of the Obama administration’s meddling in America’s schools, which often reflects a reckless disregard for students’ well-being. This is just the latest instance of federal overreaching under the Obama administration. It has also sought to restrict students’ free speech and due process rights on college campuses and in the public schools. The Obama administration has made schools less safe, and made it harder to discipline some bullies, by pressuring some public schools to adopt veiled racial quotas in discipline. The Obama administration also sought to unconstitutionally meddle in hiring at religious schools and churches, and was slapped by the Supreme Court in the Hosanna-Tabor case.
Constitutionally, yesterday’s “harassment” guidance also pushes the envelope. The concept of a “hostile environment” is rather vague and broad to begin with, which is why federal appeals courts have voided school “hostile environment” policies in some First Amendment rulings, where schools borrowed from workplace harassment rules restricting hostile or offensive speech without limiting their reach. (See, e.g., Saxe v. State College Area School District (2001) (overbreadth); Dambrot v. Central Michigan University (1995) (vagueness and overbreadth); Cohen v. San Bernardino Valley College (1996)(as-applied vagueness challenge)).
Dispensing with any limit that the harassment be aimed at the complainant based on disability (as yesterday’s guidance does in some cases) makes such rules vaguer and broader still. (See Rodriguez v. Maricopa Community College District (2010), which blocked a racial harassment suit over speech not aimed at the Hispanic complainants).
Reflecting the reality that “children may regularly interact in a manner that would be unacceptable among adults,” and perhaps also to avoid overbroad or vague rules that could chill academic freedom, the Supreme Court has defined sexual harassment, and discriminatory harassment, more narrowly in schools than in the workplace: In its decision regarding when schools are liable for peer sexual harassment, the Supreme Court required that harassing speech or conduct be both “severe and pervasive” for liability, not just “severe or pervasive,” as would be sufficient in the workplace for liability under “hostile work environment” regulations. (See Davis v. Monroe County Bd. of Educ. (1999). In schools, to give rise to “harassment” liability, speech also must be severe enough to “deprive the victims of access to the educational opportunities or benefits provided by the school.”
The Obama administration has disregarded that aspect of the Supreme Court’s Davis ruling, and the guidance it just issued says that a school can be liable if “harassment” that is not severe as long as it is “pervasive” or “persistent” (as mild behavior often is). But mildly offensive speech doesn’t lose its constitutional protection just because it is commonplace in a school, since “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
The administration simply ignores federal court rulings declaring isolated offensive or abusive behavior to be insufficient for a harassment claim, even in the workplace. As an example of what it says is a “hostile environment” that a school must eliminate or face liability, the administration gives an example of a student with peanut allergies who is taunted on two successive days, making her feel uncomfortable in the lunchroom and school bus, although most federal appeals courts would reject a “hostile work environment” claim by a disabled employee (or a minority or female employee, for that matter) over such isolated abuse.
This example is legally insufficient to constitute harassment under the Supreme Court’s Davis decision, which listed examples of similar behavior it deemed insufficient to establish harassment liability, such as “an ‘overweight child who skips gym class because the other children tease her about her size,’ the student ‘who refuses to wear glasses to avoid the taunts of “four-eyes,”’ and ‘the child who refuses to go to school because the school bully calls him a “scardy-cat” at recess.’”
Earlier, I argued that officials in Washington had already gone a long way towards inventing a federal anti-bullying law through administrative fiats (“Dear Colleague letters”) that evade basic principles of government accountability such as notice and comment rulemaking. But this takes matters even further.
OCR’s improperly reading one statute into the other (that is, the IDEA into the Rehabilitation Act) could also multiply schools’ liabilities: the Rehabilitation Act allows for a broad range of damages against schools, while the IDEA does not, so reading the latter statute into the former statute could increase the damages available for violations of the latter beyond those that Congress authorized, if courts were to buy into this interpretation (which seems unlikely in private litigation).
Hans Bader is a senior attorney at the Competitive Enterprise Institute.