l
U.S. Commission on Civil Rights

The U.S. Commission on Civil Rights is an independent, bipartisan agency established by 

Congress in 1957. It is directed to:

 Investigate complaints alleging that citizens are being deprived of their right to vote 

by reason of their race, color, religion, sex, age, disability, or national origin, or by 

reason of fraudulent practices. 

 Study and collect information relating to discrimination or a denial of equal 

protection of the laws under the Constitution because of race, color, religion, sex, age, 

disability, or national origin, or in the administration of justice. 

 Appraise federal laws and policies with respect to discrimination or denial of equal 

protection of the laws because of race, color, religion, sex, age, disability, or national 

origin, or in the administration of justice. 

 Serve as a national clearinghouse for information in respect to discrimination or 

denial of equal protection of the laws because of race, color, religion, sex, age, 

disability, or national origin. 

 Submit reports, findings, and recommendations to the President and Congress. 

 Issue public service announcements to discourage discrimination or denial of equal 

protection of the laws. 

Members of the Commission:

Martin R. Castro, Chairman

Abigail Thernstrom, Vice Chair

Roberta Achtenberg

Todd Gaziano

Gail Heriot

Peter Kirsanow

Dina Titus

Michael Yaki

U.S. Commission on Civil Rights

624 Ninth Street, NW

Washington, DC 20425

(202) 376-8128

www.usccr.gov

This report is available on disk in ASCII Text and Microsoft Word 2007 for persons with 

visual impairments. Please call (202) 376-8110.

U. S. Commission on Civil Rights

Peer-to-Peer Violence and Bullying

Examining the Federal Response 

September 2011
LETTER OF TRANSMITTAL

The President

The President of the Senate

The Speaker of the House

On behalf of the United States Commission on Civil Rights I am pleased to transmit this 

report, Peer-to-Peer Violence and Bullying, Examining the Federal Response, pursuant to 

Public Law 103-419. The purpose of the report is to examine the role played by the U.S. 

Departments of Education and Justice in addressing peer-to-peer discrimination on the basis 

of race, national origin, religion, disability, sex and/or LGBT status.

To that end, the Commission gathered enforcement data from the Departments of Education 

and Justice and convened a day-long briefing on the subject of peer-to-peer violence and 

bullying. Twenty presenters participated in the briefing. Among the panelists invited to the 

briefing were: current and former federal government officials, academics, and 

representatives from a diverse set of advocacy organizations. In addition, the Commission 

received numerous written submissions from the public, academics, and advocacy 

organizations.

Based on the evidence gathered by the Commission, we conclude that despite the harm that 

peer-to-peer bullying and harassment due to a student‘s membership in certain classes, such 

as race, religion, or sexual orientation, current federal laws (and the laws of many states) do 

not fully protect all students from peer-to-peer bullying and harassment resulting from 

animus toward their group status.

Specifically, the Commission‘s findings, by majority vote, are:

1. Bullying and harassment, including bullying and harassment based on sex, race, national 

origin, disability, sexual orientation, or religion, are harmful to American youth.

2. Current federal civil rights laws do not provide the U.S. Department of Education with 

jurisdiction to protect students from peer-to-peer harassment that is solely on the basis of 

religion.

3. The current federal civil rights laws do not protect students from peer-to-peer 

harassment that is solely on the basis of sexual orientation.

To better record the incidence of harassment based solely on sexual orientation or solely on 

religion, we recommend that the Departments adopt more detailed tracking methods 
regarding the complaints they receive. To better assist state and local officials to comply with 

their responsibilities under federal law, we recommend that the Department of Education 

strive to use consistent language and provide concrete examples in the guidance documents 

that it produces.

On August 12, 2011, the Commission approved this report. The vote was as follows: 

Commissioners Achtenberg, Castro, Thernstrom and Yaki supported the approval of the 

report; Commissioners Gaziano, Heriot and Kirsanow opposed the approval of the report; 

Commissioner Kladney abstained from voting on the report due to the fact that August 12th

was his first Commission meeting.

For the Commissioners, 

Martin R. Castro

Chairman
Table of Contents i

TABLE OF CONTENTS

CHAPTER 1. EXECUTIVE SUMMARY.............................................................................1

CHAPTER 2. INTRODUCTION AND BACKGROUND...................................................2

Peer-to-Peer Violence in K-12 Public Schools......................................................................2

What is Bullying? ..................................................................................................................3

What is Harassment Subject to Federal Jurisdiction? ...........................................................4

Peer-to-Peer Violence Generally............................................................................................5

Sex..........................................................................................................................................9

Race/National Origin............................................................................................................12

Disability ..............................................................................................................................14

LGBT ...................................................................................................................................15

Religion ................................................................................................................................21

Legal Protections..................................................................................................................23

Title IX.........................................................................................................................23

Title VI.........................................................................................................................25

Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with 

Disabilities Act.............................................................................................................26

CHAPTER 3. FEDERAL ENFORCEMENT EFFORTS: THE DEPARTMENT OF 

EDUCATION.........................................................................................................................28

The Department of Education‘s Civil Rights Complaint Processing System.........................28

Statistical Data ........................................................................................................................38

CHAPTER 4. FEDERAL ENFORCEMENT EFFORTS: THE DEPARTMENT OF 

JUSTICE.................................................................................................................................39

The Educational Opportunities Section Investigation Process...............................................39

Statistical Data ........................................................................................................................40

CHAPTER 5. THE DEPARTMENT OF EDUCATION’S DEAR COLLEAGUE 

LETTER .................................................................................................................................43

CHAPTER 6. JURISDICTION: PEER-TO-PEER VIOLENCE RELATED TO LGBT 

STATUS AND RELIGION...................................................................................................48
ii Table of Contents 

Peer-to-Peer Violence Related to Sexual Orientation and Gender Identity............................48

Peer-to-Peer Student Violence Related to Religion................................................................56

CHAPTER 7. ADDITIONAL CONCERNS RELATED TO THE FEDERAL 

RESPONSE ............................................................................................................................62

Enforcement Standards...........................................................................................................62

Federalism...............................................................................................................................70

First Amendment ....................................................................................................................76

FINDINGS AND RECOMMENDATIONS ........................................................................88

COMMISSIONER STATEMENTS AND REBUTTALS..................................................90

Statement of Chairman Martin R. Castro ................................................................................90

Statement of Vice Chair Abigail Thernstrom..........................................................................96

Statement of Commissioner Roberta Achtenberg..................................................................100

Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow .........................128

Dissenting Statement of Commissioner Gail Heriot..............................................................181

Statement of Commissioner Michael A. Yaki .......................................................................214
Executive Summary 1

Chapter 1. EXECUTIVE SUMMARY

This report focuses on the government‘s efforts to enforce federal civil rights laws with 

respect to peer-to-peer violence based on race, national origin, sex, disability, religion, and 

sexual orientation or gender identity.

The Commission examined the nature and incidence of peer-to-peer violence in public K-12 

schools and studied the types of peer-to-peer violence faced by students, as well as the effects 

of such violence. The Commission further reviewed the policies and procedures employed by 

the United States Departments of Education and Justice in enforcing prohibitions against 

peer-to-peer violence.

The Commission, by majority vote, concluded that bullying and harassment, including 

bullying and harassment based on sex, race, national origin, disability, sexual orientation, or 

religion, are harmful to American youth, and developed findings and recommendations to 

address the problem, including the following recommendations:

 The U.S. Departments of Education and Justice should track their 

complaints/inquiries regarding sexual harassment or gender-based harassment by 

creating a category that explicitly encompasses LGBT youth.

 The U.S. Departments of Education and Justice should track complaints that they 

receive regarding harassment based solely on sexual orientation that are closed for 

lack of jurisdiction.

 The U.S. Department of Education should track complaints that it receives 

regarding harassment based solely on religion that are closed for lack of 

jurisdiction.

 The U.S. Department of Education should consider issuing a new Dear Colleague 

Letter regarding the First Amendment implications of anti-bullying policies. The 

new Letter should provide concrete examples to clarify the guidance that the 

Department of Education previously provided in its Dear Colleague Letter on the 

First Amendment dated July 28, 2003.
2 Introduction and Background

Chapter 2. INTRODUCTION AND BACKGROUND

Peer-to-Peer Violence in K-12 Public Schools

n March 11, 2011, the U.S. Commission on Civil Rights, by majority vote, 

selected peer-to-peer violence and bullying as the topic for its annual, statutorily 

mandated enforcement investigation.1The Commission elected to explore the 

federal enforcement of civil rights laws with respect to peer-to-peer violence based on race, 

national origin, sex, disability, religion, and sexual orientation or gender identity.

2

On May 13, 2011, the Commission held a day-long briefing on peer-to-peer violence and 

bullying. Twenty panelists, including government officials, academics, attorneys, and 

advocates participated. Key elements of the briefing are included in this report. 

This report examines the work of the United States Departments of Education (ED) and 

Justice (DOJ) in enforcing prohibitions against discrimination and harassment as they relate 

to bullying and other peer-to-peer violence in public K-12 schools. This chapter provides 

information on the incidence of peer-to-peer violence as well as the unique problems 

associated with peer-to-peer violence as it relates to various demographic groups. It also 

provides background information on relevant legal protections, highlighting statutes enforced 

by ED and DOJ. Chapters Three and Four set forth the processes employed by ED and DOJ, 

respectively, in monitoring and enforcing prohibitions against peer-to-peer violence and 

provide data regarding ED and DOJ‘s enforcement activities. Chapter Five is an overview of 

ED‘s October 2010 Dear Colleague Letter addressing the legal obligations of schools related 

to bullying and harassment. Chapter Six discusses jurisdictional issues related to ED and 

DOJ‘s use of existing laws to combat peer-to-peer violence where the victims are in part 

targeted based on their sexual orientation or gender identity, or based on their religion.

Chapter Seven explores other concerns related to the current federal response to peer-to-peer 

violence, including critiques based on the enforcement standards used by ED, the 

 

1

See Meeting of the U.S. Comm‘n on Civil Rights, Wash., D.C., Mar. 11, 2011, transcript, available at

http://www.usccr.gov/calendar/trnscrpt/transcript_03-11-11ccr.pdf (last visited June 24, 2011).

2

Id.

O
Peer-to-Peer Violence and Bullying 3

appropriateness of a large-scale federal response versus the need for state and local control, 

and the First Amendment. 

What is Bullying?

Although the Commission declines to endorse a single and authoritative definition of 

―bullying,‖ several entities have put forth definitions that are informative as to the nature and 

variance of the issue. For example, the National Center for Education Statistics and the 

Bureau of Justice Statistics have described bullying to include ―being made fun of; being the 

subject of rumors; being threatened with harm; being pushed, shoved, tripped, or spit on; 

being pressured into doing things [one] did not want to do; excluded [sic] from activities on 

purpose; and having property destroyed on purpose.‖3Similarly, the American Psychological 

Association describes bullying as follows:

Commonly labeled as peer victimization or peer harassment, school bullying 

is defined as repeated physical, verbal or psychological abuse of victims by 

perpetrators who intend to cause them harm. The critical features that 

distinguish bullying from simple conflict between peers are: intentions to 

cause harm, repeated incidences of harm, and an imbalance of power between 

perpetrator and victim. Hitting, kicking, shoving, name-calling, spreading of 

rumors, exclusion and intimidating gestures (e.g., eye rolling) by powerful 

peers are all examples of behaviors that constitute abuse that is physical, 

verbal or psychological in nature.4

In addition, the National Education Association has defined bullying as:

[I]ntentional and repeated acts of a threatening or demeaning nature that occur 

through direct verbal (e.g., threatening, name calling), direct physical (e.g., 

hitting, kicking), and indirect (e.g., spreading rumors, influencing 

relationships, cyberbullying) means that typically occur in situations in which 

there is a power or status difference.5

 

3

SIMONE ROBERS ET AL., NAT‘L CTR. FOR EDUC. STATISTICS, INST. FOR EDUC. SCIENCES, U.S. DEP‘T OF EDUC.

& BUREAU OF JUSTICE STATISTICS, OFFICE OF JUSTICE PROGRAMS, U.S. DEP‘T OF JUSTICE, INDICATORS OF 

SCHOOL CRIME AND SAFETY: 2010, at 42 n.29, available at http://nces.ed.gov/pubs2011/2011002.pdf (last 

visited July 20, 2011) [hereinafter NCES INDICATORS STUDY]. 

4

Sandra Graham, Bullying: A Module for Teachers, Am. Psychological Ass‘n, 

http://www.apa.org/education/k12/bullying.aspx (last visited June 24, 2011) (internal citations omitted).

5 RACHEL DINKES ET AL., NAT‘L EDUC. ASS‘N, FINDINGS FROM THE NATIONAL EDUCATION ASSOCIATION‘S 

NATIONWIDE STUDY OF BULLYING: TEACHERS‘ AND EDUCATION SUPPORT PROFESSIONALS‘ PERSPECTIVES 39 
4 Introduction and Background

What Harassment is Subject to Federal Jurisdiction?

Bullying triggers federal civil rights laws where it meets the heightened legal standard for 

―harassment.‖ That is, it targets students based on a protected classification, it creates a 

hostile environment, and schools have notice of the conduct but fail to address it. As 

described by ED‘s Assistant Secretary for Civil Rights Russlynn Ali:

[S]chool districts violate the federal civil rights laws that OCR enforces when 

harassment based on race, color, national origin, sex, or disability is 

sufficiently serious to create a hostile environment, and school employees 

encourage, tolerate, do not adequately 

address, or ignore the harassment.6

Likewise, according to Jocelyn Samuels, Senior 

Counselor to DOJ‘s Assistant Attorney General for 

Civil Rights, ―[DOJ]‘s authority goes to harassment 

which is physical or verbal or other conduct that is 

sufficiently severe or pervasive to create a hostile 

environment that interferes with a student‘s ability 

to learn.‖7

Because federal case law establishes a high bar for 

school liability for incidents of student-on-student 

harassment,8not all forms of bullying are subject to 

federal jurisdiction, and ED and DOJ do not get involved in typical schoolyard bullying and 

teasing. As Ms. Samuels explains, ―We do not have jurisdiction and would not take action 

 

(2011), available at

http://www.nea.org/assets/img/content/Findings_from_NEAs_Nationwide_Study_of_Bullying.pdf (last visited 

May 5, 2011) [hereinafter NEA STUDY OF BULLYING].

6

Statement of Russlynn H. Ali, Asst. Sec‘y, Office for Civil Rights, U.S. Dep‘t of Educ., at 3, May 13, 2011, 

available at 

http://www.eusccr.com/1.%20Russlynn%20Ali,%20U.S.%20Department%20of%20Justice,%20Office%20for

%20Civil%20Rights.pdf (last visited June 23, 2011) [hereinafter Ali Statement].

7 Briefing Before the U.S. Comm‘n on Civil Rights, Wash., D.C., May 13, 2011, transcript at 41:21-25, 

available at http://www.eusccr.com/Peer-Bullying%20May%2013%202011%20Transcript.pdf (last visited 

June 22, 2011) [hereinafter Briefing Transcript] (Samuels Testimony).

8

See infra pp.23-27.

We do not have jurisdiction 

and would not take action 

against single incidents of 

playground taunting absent 

something like physical 

conduct that made a single 

incident sufficiently severe 

or pervasive to create a 

hostile environment.

Jocelyn Samuels, Dept. of 

Justice

(Briefing Transcript, p. 48)
Peer-to-Peer Violence and Bullying 5

against single incidents of playground taunting absent something like physical conduct that 

made a single incident sufficiently severe or pervasive to create a hostile environment.‖9

It is important to keep these distinctions in mind while reviewing this report. Federal civil 

rights laws—and the federal government‘s enforcement of those laws—are limited to 

heightened incidents of harassment that do not include typical schoolyard bullying unless that 

bullying creates a hostile environment. As such, incidents of bullying reported in surveys and 

statistical studies in this report do not necessarily meet the threshold for federal jurisdiction.

Peer-to-Peer Violence Generally10

Acts of bullying, violence, and harassment are widespread in K-12 schools. The School 

Survey on Crime and Safety (SSCS), sponsored by ED‘s National Center for Education 

Statistics (NCES), found that 25 percent of schools reported that bullying took place amongst 

their students on a daily or weekly basis.11 Likewise, the School Crime Supplement to the 

National Crime Victimization Survey (SCS-NCVS), sponsored by DOJ‘s Bureau of Justice 

Statistics, found that about 32 percent of students aged 12 to 18 reported having been bullied 

in their schools during the 2007 school year.12 Twenty-one percent of the bullied students 

said that they experienced bullying once or twice per month, 10 percent said they were 

bullied once or twice per week, and 7 percent responded that they were bullied on a nearly 

 

9 Briefing Transcript, supra note 7, at 48:24-49:4 (Samuels Testimony).

10 The data presented in this chapter is designed only to provide general insight into the nature and prevalence of 

bullying in K-12 schools, primarily as presented by organizations and agencies that collect such information for 

their own use. The Commission did not independently verify the data presented here. Further, although much 

data on peer-to-peer violence exists from studies and surveys conducted by federal and state agencies, 

academics, and interest groups, including data gathered from self-reports, school staff observations, school 

disciplinary records, and crime reports, such as the data presented here, some critique the usefulness and 

accuracy of this data. See, e.g., Briefing Transcript, supra note 7, at 63:9-14 (Clegg Testimony) (―[T]he 

Commission needs to take with a grain of salt the numbers that you‘re given by interest groups and by federal 

bureaucracies who want to expand their jurisdiction, especially when the two of them are working together.‖); 

but see id. at 106:5-107:11 (Meyer Testimony) (discussing the reliability of research regarding outcomes of 

anti-LGBT bullying).

11 NCES INDICATORS STUDY, supra note 3, at 30-31.

12 Id. at 42-43. Of those students who reported being bullied in school: 21.0 percent reported being made fun of, 

called names, or insulted; 18.1 percent reported being subjected to rumors; 5.8 percent reported being 

threatened with harm; 11.0 percent reported being pushed, shoved, tripped, or spit on; 5.2 percent reported 

being excluded from activities on purpose; 4.2 percent reported their property being destroyed on purpose; and 

4.1 percent reported that peers tried to make them do things they did not want to do. Id. at 122.
6 Introduction and Background

daily basis.13 Only 36.1 percent of the bullied students responded that they had notified an 

adult at school about the incident or incidents.14 Similarly, the Youth Risk Behavior Survey 

(YRBS), sponsored by the Centers for Disease Control and Prevention (CDC), found that 

19.9 percent of high school students reported being bullied on school property during the 

prior 12 months.15

Studies conducted by the private sector have found an even higher prevalence of bullying. A 

recent study of 43,000 students by the Josephson Institute of Ethics found that 47.1 percent 

of American high school students reported having been bullied, teased, or taunted in the 

previous year in a way that seriously upset them.16 The study also found that 49.8 percent of 

high school students admitted to having bullied, teased, or taunted someone within the past 

year,

17 and that 33.4 percent of high school students believed that physical violence, such as 

fighting, bullying, and intimidation, was a big problem at their school.18

A 2011 study by the National Education Association found that 87 percent of school staff 

reported witnessing bullying. Specifically, 25 percent of school staff reported witnessing 

bullying once per month, 21 percent reported witnessing bullying 2 to 3 times per month, 16 

percent reported witnessing bullying once per week; 15 percent reported witnessing bullying 

several times per week; and 9 percent reported witnessing bullying on a daily basis.19 Of the 

staff surveyed, 43 percent perceived bullying to be a moderate or major problem.20

 

13 Id. at 42, 44. 

14 Id. at 42, 126.

15 DANICE J. EATON, ET AL., CTRS. FOR DISEASE CONTROL & PREVENTION, NO. SS-5, YOUTH RISK BEHAVIOR 

SURVEILLANCE—UNITED STATES, 2009, at 8, 53-54 (2010), available at

http://www.cdc.gov/mmwr/pdf/ss/ss5905.pdf (last visited May 5, 2011).

16 JOSEPHSON INSTITUTE, 2010 REPORT CARD ON THE ETHICS OF AMERICAN YOUTH 175 (2010), available at

http://charactercounts.org/pdf/reportcard/2010/ReportCard2010_data-tables.pdf (last visited May 4, 2011) 

[hereinafter JOSEPHSON STUDY]; see also Press Release, Josephson Institute of Ethics, Largest Study Ever 

Shows Half of All High School Students Were Bullies and Nearly Half Were the Victims of Bullying During 

the Past Year (Oct. 25, 2010) available at http://charactercounts.org/pdf/reportcard/2010/pressrelease_bullying-violence.pdf (last visited May 4, 2011). The American Academy of Child & Adolescent 

Psychiatry (AACAP) estimates that ―as many as half of all children are bullied at some time during their school 

years, and at least 10 percent are bullied on a regular basis.‖ See American Academy of Child & Adolescent

Psychiatry, Facts for Families: Bullying, http://www.aacap.org/cs/root/facts_for_families/bullying (Mar. 2011) 

(last visited May 19, 2011).

17 JOSEPHSON STUDY, supra note 16, at 145.

18 Id. at 46.

19 See NEA STUDY OF BULLYING, supra note 5, at 39.

20 See id.
Peer-to-Peer Violence and Bullying 7

Furthermore, in recent years, the advent and widespread use of new technologies such as the 

Internet21 and cellular phones22 has led to new methods of bullying, often called 

―cyberbullying.‖ Cyberbullying has been defined to include incidents in which classmates 

post hurtful information about a student on the Internet or make unwanted contact through 

instant messaging or text messaging that threatens or insults the student.23 The recent growth 

of popularity of social networking sites (such as Facebook and MySpace) and video-sharing 

websites (such as YouTube) has led to increased reports of cyberbullying.24 Though 

estimates do vary, one study found that about 20 percent of students that are 11 to 18 years of 

age indicate they have been a victim of cyberbullying at some point in their life.25

Cyberbullying can have several negative effects on victims; many students have reported 

feeling sad, depressed, angry, and frustrated because of cyberbullying, while many expressed 

they were afraid or embarrassed to attend school.26 Indeed, there are three factors that can 

make cyberbullying even more devastating than traditional bullying: (1) because cyberbullies 

can be anonymous or use false names, victims do not always know who is targeting them or 

why,27 (2) the viral nature of cyberbullying enables the bully to reach a large audience in a 

short amount of time or involve a large group of bullies in the behavior,28 and (3) 

 

21 An estimated two thirds (63 percent) of teenagers use the Internet every day. See AMANDA LENHART ET AL.,

PEW INTERNET & AMERICAN LIFE PROJECT, SOCIAL MEDIA AND YOUNG ADULTS 13 (2010), available at

http://missourikidsfirst.org/mosaferonline/wp-content/uploads/2010/06/Social-Media-and-Young-Adults.pdf

(last visited May 18, 2011).

22 By one account, approximately 79 percent of American teenagers have a mobile device. See CTIA—The 

Wireless Association®, Teenagers: A Generation Unplugged, 

http://www.ctia.org/advocacy/research/index.cfm/AID/11483 (last visited May 18, 2011) (describing the 

findings of a 2009 national survey by CTIA and Harris Interactive).

23 See NCES INDICATORS STUDY, supra note 3, at 42 n.30.

24 Sameer Hinduja & Justin W. Patchin, Overview of Cyberbullying, Mar. 10, 2011, 

http://www.stopbullying.gov/references/white_house_conference/white_house_conference_materials.pdf#overv

iew_of_cyberbullying (last visited June 24, 2011). 

25 Id. The NCS-NCVS found that 3.7 percent of 12-18 year-olds reported having been cyberbullied, either in 

school or outside of school, in the 2007 school year. See NCES INDICATORS STUDY, supra note 3, at 42-43, 123. 

In addition, 1.6 percent of students reported that classmates posted hurtful information about them on the 

Internet, and 2.1 percent reported being subjected to unwanted contact, including threats or insults via instant 

messaging. See id. at 42, 123. Of those students that reported cyberbullying, 20.7 percent responded that it 

occurred once or twice per month and 5.1 percent responded that it occurred once or twice per week. Id. at 42, 

127.

26 See Hinduja & Patchin, Overview, supra note 24.

27 See Hinduja & Patchin, Overview, supra note 24; Sameer Hinduja & Justin W. Patchin, Cyberbullying: An 

Exploratory Analysis of Factors Relating to Offending and Victimization, 29 DEVIANT BEHAVIOR 129 (2008).

28 See Hinduja & Patchin, Overview, supra note 24.
8 Introduction and Background

cyberbullying can be substantively more cruel because it typically takes place from a distant 

location where the bully does not see the immediate impact of his or her actions.29

While all bullying is harmful to America‘s youth, some experts believe that bullying based 

on students‘ identities—such as their sex, race, ethnicity or national origin, disability, sexual 

orientation or gender identity, or religion—can be particularly damaging.30 Unfortunately, 

these forms of bullying are all too common in American schools. The SCS-NCVS found that 

9.7 percent of students ages 12 to 18 reported being targeted by ―hate-related words‖ in the 

2007 school year.31 Two percent of all students reported being targeted based on gender, 4.6 

percent based on race, 2.9 percent based on ethnicity, 1.0 percent based on disability, 1.0

percent based on sexual orientation, and 1.6 percent based on religion.32

 

29 See Hinduja & Patchin, Overview, supra note 2427; NANCY E. WILLARD, CYBERBULLYING AND 

CYBERTHREATS: RESPONDING TO THE CHALLENGE OF ONLINE SOCIAL AGGRESSION, THREATS, AND DISTRESS

(2007).

30 See Briefing Transcript, supra note 7, at 129:11-15 (Herek Testimony) (―[B]eing targeted as a member of a 

particular group, a racial group for example, is more—is associated with greater harm than being targeted for, 

again, what we might call routine sort of violence.‖); id. at 130:9-12 (Meyer Testimony) (―[Greater harm] has 

been shown with regard to other types of groups [in addition to LGBT], and the reason behind it ... is because 

of the symbolic value that is involved in something that is such a hate crime.‖); Statement of Ilan H. Meyer, 

Columbia Univ., at 10, May 13, 2011, available at 

http://www.eusccr.com/10.%20Ilan%20Meyer,%20Columbia%20Universirt.pdf (last visited June 23, 2011) 

[hereinafter Meyer Statement] (―[P]eople in disadvantaged social statuses are exposed to unique added 

stressors—I have referred to this as minority (also social) stress. Minority stress stems from social 

disadvantages related to structural stigma, prejudice, and discrimination.‖) (emphasis in original); cf. Nuxoll v. 

Indian Prairie Sch. Dist. #204, 523 F.3d 668, 671 (7th Cir. 2008) (Posner, J.) (―People are easily upset by 

comments about their race, sex, etc., including their sexual orientation, because for most people these are major 

components of their personal identity—none more so than a sexual orientation that deviates from the norm. 

Such comments can strike a person at the core of his being.‖); Wisconsin v. Mitchell, 508 U.S. 476, 487-88 

(1993) (―[T]he ... statute singles out for enhancement bias-inspired conduct because this conduct is thought to 

inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated 

crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite 

community unrest. ... The State‘s desire to redress these perceived harms provides an adequate explanation for 

its penalty-enhancement provision over and above mere disagreement with offenders‘ beliefs and biases. As 

Blackstone said long ago,  ̳it is but reasonable that among crimes of different natures those should be most 

severely punished, which are the most destructive of public safety and happiness.‘‖) (Rehnquist, C.J.) (citations 

omitted). 

31 NCES INDICATORS STUDY, supra note 3, at 41, 120; see also Statement of Anti-Defamation League at 5, May 

13, 2011, available at http://www.eusccr.com/20.%20Anti-Defamation%20League.pdf (last visited June 23, 

2011) [hereinafter Anti-Defamation League Statement].

32 NCES INDICATORS STUDY, supra note 3, at 40-41, 120. Because the survey gave students the option of 

choosing more than one characteristic, the total percentage of students that reported being targeted by ―haterelated words‖ is less than the sum of each category. See id. at 41.
Peer-to-Peer Violence and Bullying 9

A 2007-2009 survey of California students, called the California Healthy Kids Survey 

(CHKS) and funded by the California Department of Education, found higher rates of 

identity-based bullying. The study found that 27 percent of all students in grades 7, 9, and 11 

reported being subjected to identity-related bullying or harassment.33 Eleven percent reported 

harassment based on gender (male or female), 18 percent based on race, ethnicity, or national 

origin, 9 percent based on physical or mental disability, 12 percent based on actual or 

perceived sexual orientation, and 11 percent based on religion.34 This report addresses each 

category of bullying in turn.

Sex

Bullying based on sex takes many forms. It includes sexual harassment, which is unwanted 

conduct of a sexual nature. Some examples can include sexual propositions, pressuring for 

sexual favors, touching of a sexual nature, sexual gestures, telling sexual or dirty jokes, or 

spreading sexual rumors.35 Sex-based harassment likewise includes sexual violence such as 

rape, sexual assault, sexual battery, and sexual coercion.36 And finally, sex-based bullying 

includes bullying, harassment, and violence that is not sexual in nature, but is instead due to 

the individual‘s sex and/or non-conformity to sex stereotypes.37 Examples can include 

 

33 See WESTED HEALTH & HUMAN DEVELOPMENT PROGRAM FOR THE CAL. DEP‘T OF EDUC., CALIFORNIA 

HEALTHY KIDS SURVEY: STUDENT WELL-BEING IN CALIFORNIA, 2007-2009, GRADES 7, 9, 11: MAIN REPORT 41, 

available at http://chks.wested.org/resources/Secondary_State_0709_Main.pdf (last visited May 19, 2011) 

[hereinafter CHKS MAIN REPORT]; see also MOLLY O‘SHAUGHNESSY ET AL., CALIFORNIA SAFE SCHOOLS 

COALITION & 4-H CENTER FOR YOUTH DEVELOPMENT, U.C. DAVIS, SAFE PLACE TO LEARN: CONSEQUENCES OF 

HARASSMENT BASED ON ACTUAL OR PERCEIVED SEXUAL ORIENTATION AND GENDER NON-CONFORMITY AND 

STEPS FOR MAKING SCHOOLS SAFER 7 (2004), available at

http://www.casafeschools.org/SafePlacetoLearnLow.pdf (last visited May 10, 2011) [hereinafter CAL. SAFE 

PLACE] (discussing results of the same survey from 2001-2002); see also Anti-Defamation League Statement, 

supra note 31, at 5.

34 See CHKS MAIN REPORT, supra note 33, at 41; see also CAL. SAFE PLACE, supra note 33, at 7.

35 OFFICE FOR CIVIL RIGHTS, U.S. DEP‘T OF EDUC., SEXUAL HARASSMENT: IT‘S NOT ACADEMIC 3-4 (Sept. 

2008), available at http://www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.pdf (last visited May 11, 2011) 

[hereinafter SEXUAL HARASSMENT: IT‘S NOT ACADEMIC].

36 Russlynn Ali, Asst. Sec‘y for Civil Rights, U.S. Dep‘t of Educ., Dear Colleague Letter: Sexual Violence, at 1-

2, Apr. 4, 2011, available at http://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201104.html (last 

visited June 10, 2011) [hereinafter Sexual Violence DCL].

37 See Statement of Fatima Goss Graves, Vice President for Educ. and Employment, Nat‘l Women‘s Law Ctr., 

at 2, May 13, 2011, available at

http://www.eusccr.com/8.%20Fatima%20Goss%20Graves,%20National%20Women%27s%20Law%20Center.

pdf (last visited June 22, 2011) [hereinafter Goss Graves Statement].
10 Introduction and Background

harassment of a girl for participating in a sport that 

is considered unfeminine;38 bullying a girl for being 

pregnant;39 or harassing a boy for his effeminate 

mannerisms.40 Sex-based bullying, harassment, and 

violence can involve boys targeting girls, girls 

targeting boys, and members of the same sex 

targeting each other.41

While statistics on sex-based bullying in K-12 

schools are somewhat limited, a 2001 study by the 

American Association of University Women 

(AAUW) found that 81 percent of students in 

grades 8 to 11 reported experiencing sexual 

harassment, including 83 percent of girls and 79 

percent of boys.42 Twenty-seven percent of the 

students surveyed, including 30 percent of girls and 

24 percent of boys, said that they were sexually harassed often.43 Seventy-six percent of 

students reported that they experienced nonphysical harassment often, occasionally, or 

rarely,44 while 58 percent reported experiencing physical harassment often, occasionally, or 

rarely.45 And 44 percent of girls and 20 percent of boys reported that they were afraid of 

being sexually harassed at school.46

 

38 Id.

39 Id.

40 See Russlynn Ali, Asst. Sec‘y for Civil Rights, U.S. Dep‘t of Educ., Dear Colleague Letter: Harassment and 

Bullying, at 1, Oct. 26, 2010, available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague201010.html (last visited May 11, 2011) [hereinafter Harassment/Bullying DCL].

41 See Goss Graves Statement, supra note 37, at 2; see also Oncale v. Sundowner Offshore Srvcs., 523 U.S. 75 

(1998).

42 AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, HOSTILE HALLWAYS: BULLYING, TEASING, AND SEXUAL 

HARASSMENT IN SCHOOL 20-21 (2001) [hereinafter AAUW STUDY]. The study defined ―sexual harassment‖ to 

mean: ―[U]nwanted and unwelcome sexual behavior that interferes with your life. Sexual harassment is not 

behaviors that you like or want (for example wanted kissing, touching, or flirting).‖ Id. at 2.

43 Id. at 20-21. 

44 Id. at 22. 

45 Id. at 25.

46 Id. at 3. 

[T]he harassment began ... when 

the classmate, G.F., attempted to 

touch LaShonda’s breasts and 

genital area and made vulgar 

statements such as “‘I want to 

get in bed with you’“ and “‘I 

want to feel your boobs.’” ... 

[Later,] G.F. purportedly placed 

a door stop in his pants and 

proceeded to act in a sexually 

suggestive manner toward 

LaShonda in physical education 

class.

Davis v. Monroe County Bd. of 

Educ.

526 U.S. 629, 633-34 (1999)
Peer-to-Peer Violence and Bullying 11

In addition, in the School Survey on Crime and Safety (SSOCS), sponsored by the U.S. 

Department of Education‘s National Center for Education Statistics, schools reported 800 

incidents of rape and 3800 incidents of sexual battery not involving rape in the 2007-2008 

school year.47 The AAUW study found that 12 percent of boys and 9 percent of girls in 

grades 8 to 11 reported that they had been forced to do something sexual other than kissing.48

Such sexual harassment causes students‘ education to suffer. According to the AAUW study, 

24 percent of students subjected to sexual harassment reported that the harassment made 

them less likely to talk in class; 20 percent reported that the harassment made it difficult for 

them to pay attention in class; 22 percent of the students reported that the harassment made 

them not want to go to school; and 16 percent reported that, as a result of the harassment, 

they actually stayed home from school or cut a class.49 In addition, 11 percent of students 

subjected to sexual harassment reported that the harassment caused them to make a lower 

grade in a class than they thought they otherwise would have.50

Sex-based bullying can harm both female and male students in other ways as well. According 

to the AAUW study, of the students—boys and girls—who reported being subjected to 

sexual harassment, 47 percent reported feeling very or somewhat upset about the incident.51

In addition, 32 percent reported that they felt self-conscious, 43 percent reported that they felt 

embarrassed, 23 percent reported that they felt afraid or scared, 24 percent reported feeling 

less sure of themselves and less confident, 17 percent reported feeling confused about who 

they are, and 19 percent reported doubting whether they can have a happy romantic 

relationship.52 These feelings were particularly salient amongst girls. Of the girls who 

reported being subjected to sexual harassment, 44 percent reported that they felt selfconscious, 53 percent reported that they felt embarrassed, 33 percent reported that they felt 

afraid or scared, 32 percent reported feeling less sure of themselves and less confident, 22 

percent reported feeling confused about who they are, and 25 percent reported doubting 

 

47 NCES INDICATORS STUDY, supra note 3, at 104; see also Goss Graves Statement, supra note 37, at 3.

48 See AAUW STUDY, supra note 42, at 23; see also Goss Graves Statement, supra note 37, at 3.

49 AAUW STUDY, supra note 42, at 37; see also Goss Graves Statement, supra note 37, at 3. 

50 AAUW STUDY, supra note 42, at 37.

51 Id. at 32. 

52 Id. at 33. 
12 Introduction and Background

whether they can have a happy romantic relationship.53 Where the sexual harassment was 

physical, even more students reported these emotional responses. Of those students—boys 

and girls—subjected to physical harassment, 38 percent reported that they felt self-conscious, 

48 percent reported that they felt embarrassed, 28 percent reported that they felt afraid or 

scared, 28 percent reported feeling less sure of themselves and less confident, 21 percent 

reported feeling confused about who they are, and 23 percent reported doubting whether they 

can have a happy romantic relationship.54

Race/National Origin

The California Healthy Kids Survey conducted in 2007-2009 found that when youth in 

California were bullied or harassed on school property, the most common specific reason 

cited was because of their race or national origin, with about 18 percent of students in grades 

7, 9, and 11 reporting at least one bullying incident in the past year for this reason.55 The 

problem is not limited to one specific racial or ethnic group. When results from 9th and 11th

grade students are broken down by race and ethnicity, African-American students reported 

being bullied or harassed due to their race or ethnicity at the highest rate—23 percent.56

Twenty-two percent of Asian-American students, 22 percent of Native Hawaiian or Pacific 

Islander students, and 20 percent of Native American students reported being harassed due to 

their race, ethnicity, or national origin as well.57

 

53 Id. Of the boys who reported being subjected to sexual harassment, 19 percent reported that they felt selfconscious, 32 percent reported that they felt embarrassed, 12 percent reported that they felt afraid or scared, 16 

percent reported feeling less sure of themselves and less confident, 12 percent reported feeling confused about 

who they are, and 12 percent reported doubting whether they can have a happy romantic relationship. Id.; see 

also Goss Graves Statement, supra note 37, at 3.

54 AAUW STUDY, supra note 42, at 34.

55 CHKS MAIN REPORT, supra note 33, at 41.

56 See WESTED HEALTH & HUMAN DEVELOPMENT PROGRAM FOR THE CAL. DEP‘T OF EDUC., CALIFORNIA 

HEALTHY KIDS SURVEY: STUDENT WELL-BEING IN CALIFORNIA, 2007-2009, VARIATIONS BY RACE/ETHNICITY 

IN GRADES 9 & 11 STATEWIDE RESULTS: CTAG REPORT 40, available at

http://chks.wested.org/resources/CTAG_Statewide_9-11_0709.pdf (last visited May 19, 2011) [hereinafter 

CHKS CTAG REPORT].

57 Id.
Peer-to-Peer Violence and Bullying 13

Examples of racial harassment include ethnic slurs and derogatory ethnic comments, ethnic 

jokes, and criticisms of behaviors or physical features typically attributed to a certain race or 

ethnicity. For instance, a form of intra-racial bullying occurs when an African-American 

student is accused by another African-American 

student of ―acting white,‖ because the student exhibits 

certain behaviors,58 such as showing enthusiasm for 

schoolwork, studying too much, or maintaining 

certain cultural patterns of behavior including dress, 

speech, and music choice.59 A recent study of 166 

gifted African-American students in Ohio found that 

66 percent reported knowing someone who was 

ridiculed for doing well in school.60

Although statistical research on race- and nationalorigin-based harassment has been somewhat limited, 

DOJ activity provides anecdotal evidence of the kinds 

of race-based harassment that has occurred. For instance, in 2010, DOJ reached a settlement 

agreement with the Philadelphia, Pennsylvania School District, addressing harassment of 

Asian-American students at South Philadelphia High School that, in December 2009, led to a 

day-long attack by roving groups of students against the school‘s Asian-American student 

population; by the end of the day, more than two dozen Asian-American students were 

attacked, and 13 of them were sent to the emergency room.61 And in April 2011, DOJ 

reached a settlement agreement with a school district in Owatonna, Minnesota, resolving an 

 

58 See Statement of Stuart Buck, Univ. of Ark., at 1, May 13, 2011, available at 

http://www.eusccr.com/12.%20Stuart%20Buck,%20University%20of%20Arkansas.pdf (last visited June 23, 

2011) [hereinafter Buck Statement].

59 See Briefing Transcript, supra note 7, at 172:14-19 (Buck Testimony). 

60 See Donna Y. Ford, Tarek C. Grantham & Gilman W. Whiting, Another Look at the Achievement Gap, 43 

URBAN EDUCATION 213, 230 (2008); see also Buck Statement, supra note 58, at 1-2.

61 See Statement of Jocelyn Samuels, Senior Counselor to the Asst. Att‘y Gen., Civil Rights Div., U.S. Dep‘t of 

Justice, at 4, May 13, 2011, available at

http://www.eusccr.com/2.%20Jocelyn%20Samuels,%20U.S.%20Department%20of%20Justice,%20Civil%20Ri

ghts%20Division.pdf (last visited June 23, 2011) [hereinafter Samuels Statement]; Statement of Helen Gym, 

Asian Americans United, at 1, May 13, 2011, available at

http://www.eusccr.com/14.%20Helen%20Gym,%20Asian%20Americans%20United.pdf (last visited June 23, 

2011).

At the end of the day, 

more than two dozen 

Asian immigrant 

students had been 

assaulted, many more 

were terrorized, and 13 

went to the emergency 

room.

Helen Gym,

Asian Americans United

Briefing Transcript, p. 164
14 Introduction and Background

investigation into the race- and national-origin harassment of Somali Americans that led to a 

fight among 11 white and Somali-American students.62

Disability

Incidents of bullying, harassment, and teasing of 

students with disabilities are also widespread.63

Because bullies tend to target peers who appear 

vulnerable, students with disabilities are especially 

susceptible to physical or verbal attacks.64 Indeed, 

research has shown that children with disabilities are 

bullied more often than children without disabilities. 

Though research regarding the connection between 

bullying and disability is fairly limited (a review of 

United States research in 2009 stated that only 10

studies had been conducted in the United States on the subject), such research seems to 

indicate that students with disabilities are two to three times more likely than students 

without disabilities to be victims of bullying.65

In a 2009 study of parents of children with Asperger Syndrome, 94 percent reported that their 

children had been bullied.66 Additionally, 65 percent reported that their children had been 

 

62 See Samuels Statement, supra note 61, at 4.

63 See, e.g., Norma V. Cantu, Asst. Sec‘y for Civil Rights, U.S. Dep‘t of Educ., Dear Colleague Letter: 

Prohibited Disability Harassment: Reminder of Responsibilities Under Section 504 of the Rehabilitation Act of 

1973 and Title II of the Americans with Disabilities Act, July 25, 2000, at 1, available at http://www2.ed.gov/ 

Press Releases/07-2000/PolicyDisabilityharassment.doc (last visited May 10, 2011) [hereinafter Disability 

DCL] (stating, based on a focus group, that harassment of students with disabilities ―range[s] from abusive 

jokes, crude name-calling, threats, and bullying, to sexual and physical assault by teachers and other students.‖).

64 See JOHN HOOVER & PAM STENHJEM, NAT‘L CTR. ON SECONDARY EDUC. & TRANSITION, BULLYING AND 

TEASING OF YOUTH WITH DISABILITIES: CREATING POSITIVE SCHOOL ENVIRONMENTS FOR EFFECTIVE 

INCLUSION 1-2 (2003) http://www.ncset.org/publications/issue/NCSETIssueBrief_2.3.pdf (last visited May 10, 

2011).

65 See ABILITYPATH.ORG, WALK A MILE IN THEIR SHOES: BULLYING AND THE CHILD WITH SPECIAL NEEDS 12 

(2011), available at http://www.abilitypath.org/areas-of-development/learning--schools/bullying/articles/walka-mile-in-their-shoes.pdf (last visited May 10, 2011) [hereinafter WALK A MILE].

66 See Susan Carter, Bullying of Students with Asperger Syndrome, 32 ISSUES IN COMPREHENSIVE PEDIATRIC 

NURSING 145, 151 (2009); see also Statement of Paula Goldberg, Exec. Dir., PACER Ctr., at 3, May 13, 2011, 

A 15-year-old boy with 

learning disabilities ... 

was bullied every Friday.

Why? Because a group of 

students called Friday 

“beat up the retard day.”

Paula Goldberg, PACER Center 

(Briefing Transcript p. 159)
Peer-to-Peer Violence and Bullying 15

victimized by peers within the past year, while 50 percent reported that their children were 

scared by their peers.67

Peer-to-peer bullying of students with disabilities tends to be persistent.

68 In one study, 

parents of children on the autism spectrum reported that nearly 39.6 percent of their children 

had been bullied for more than a year, with another 20.4 percent reporting that bullying took 

place over several months.69

Disability harassment and bullying are of special concern because students with disabilities 

could have a difficult time responding to bullying behavior if they have difficulty 

understanding social cues and norms.70 Further, because some students with disabilities have 

difficulty communicating, their victimization by bullies sometimes goes unreported.71

Lesbian, Gay, Bisexual, and Transgender (LGBT)

72

At least one study has found that, after physical appearance, many students report that actual 

or perceived sexual orientation is the most common reason for bullying, name-calling, or

harassment in schools.73 Many believe that anti-LGBT bullying results from general animus 

toward LGBT students and a stigmatization of homosexuality.74

 

available at http://www.eusccr.com/13.%20Paula%20Goldberg,%20PACER%20Center.pdf (last visited June 

23, 2011) [hereinafter Goldberg Statement]. 

67 See Carter, supra note 66, at 149-50; see also WALK A MILE, supra note 65, at 12.

68 See WALK A MILE, supra note 65, at 10.

69 Massachusetts Advocates for Children, Targeted, Taunted, Tormented: the Bullying of Children with Autism 

Spectrum Disorder (2009), http://www.massadvocates.org/documents/Bullying-Report_000.pdf (last visited 

May 10, 2011).

70 See Goldberg Statement, supra note 66, at 3; see also id. (―Therefore, students with disabilities may have an 

especially hard time responding to bullying behavior, making it even more devastating.‖).

71 See JONATHAN YOUNG, ARI NE‘EMAN & SARA GELSER, NATIONAL COUNCIL ON DISABILITY, BULLYING AND 

STUDENTS WITH DISABILITIES 3 (2011), http://www.ncd.gov/publications/2011/March92011 (last visited June 

24, 2011).

72 The term ―LGBT‖ refers to individuals who identify as, or are perceived to be, Lesbian, Gay, Bisexual, and 

Transgender. While this term is commonly used in public discourse, as well as in the studies referenced in this 

discussion, the phrase ―sexual orientation and gender identity‖ more closely parallels the terms used in many 

laws and by ED and DOJ. 

73 See HARRIS INTERACTIVE & GAY, LESBIAN AND STRAIGHT EDUC. NETWORK, FROM TEASING TO TORMENT:

SCHOOL CLIMATE IN AMERICA—A SURVEY OF STUDENTS AND TEACHERS 30 (2005), available at

http://www.glsen.org/binary-data/GLSEN_ATTACHMENTS/file/499-1.pdf (last visited May 9, 2011) 

(reporting that 17 percent of students stated that students were most often bullied, called names, or harassed 
16 Introduction and Background

Surveys report that anti-LGBT bullying is rampant in American schools. According to a 2009 

survey by the Gay, Lesbian and Straight Education Network (GLSEN 2009 Survey), 84.6 

percent of LGBT youth were verbally harassed, 40.1 percent were physically harassed, 18.8 

percent were physically assaulted at school in the previous year because of their sexual 

orientation,75 and 52.9 percent of LGBT students suffered from cyberbullying.76 The same 

survey found that 61.1 percent of LGBT students reported that they felt unsafe at school 

 

because they are or are perceived to be gay, lesbian, or bisexual, and that 33 percent of students said that the 

most common reason was the way students looked or their body size); Statement of Eliza Byard, Exec. Dir., 

Gay, Lesbian & Straight Educ. Network, at 3, May 6, 2011, available at 

http://www.eusccr.com/3.%20Eliza%20Byard,%20GLSEN.pdf (last visited June 23, 2011) [hereinafter Byard 

Statement].

74 See Statement of Gregory M. Herek, Univ. of Cal., Davis, at 13, May 13, 2011, available at

http://www.eusccr.com/9.%20Gregory%20M.%20Herek,%20University%20of%20California,%20Davis.pdf

(last visited June 23, 2011) [hereinafter Herek Statement] (―Homosexuality remains stigmatized today in the 

United States: Significant portions of the heterosexual public harbor negative feelings and hostile attitudes 

toward sexual minorities.‖); id. at 19 (―Sexual minority adults and adolescents are more likely to experience 

harassment and victimization to the extent that their sexual orientation is known to a greater number of others. 

This may be especially the case in school settings because negative attitudes towards homosexuality and sexual 

minorities are common among heterosexual youth, especially in early adolescence.‖); see also Meyer 

Statement, supra note 30, at 13-14 (―In the context of school climate such seemingly minor experiences, 

especially when chronic, can color the entire social environment sending a message of rejection and disdain to 

the victim. This message is exacerbated when teachers and school personnel ignore instances of harassment 

such as name calling, implicitly joining the perpetrator in rejecting the LGBT youth and sending a message that 

LGBT youth are to be scorned.‖) (internal citations omitted); Public Comment of Southern Poverty Law Center, 

at 1, May 13, 2011, available at http://www.splcenter.org/get-informed/news/splc-to-us-commission-on-civilrights-combating-anti-lgbt-bullying-requires-focus-on-climate (last Sept. 9, 2011) (―We have been particularly 

concerned about anti-LGBT bullying, which is one of the few remaining forms of bigotry that can go unchecked 

on campuses.‖).

75 See JOSEPH G. KOSCIW ET AL., GAY, LESBIAN & STRAIGHT EDUC. NETWORK, THE 2009 NATIONAL SCHOOL 

CLIMATE SURVEY 25-29 (2010), available at http://www.glsen.org/binarydata/GLSEN_ATTACHMENTS/file/000/001/1675-1.pdf (last visited May 9, 2011) (hereinafter GLSEN 2009

SCHOOL CLIMATE SURVEY); see also Samuels Statement, supra note 61, at 3; Byard Statement, supra note 73, 

at 4; Herek Statement, supra note 74, at 18; Meyer Statement, supra note 30, at 21 (―At school, LGBT youth 

more frequently than heterosexual peers experience bullying, including physical assault; being injured, 

threatened, and harassed; and having their property stolen or damaged.‖); NAT‘L MENTAL HEALTH ASS‘N,

―WHAT DOES GAY MEAN?‖ TEEN SURVEY (2002), available at

http://www.mentalhealthamerica.net/download.cfm?DownloadFile=FFE225CB-1372-4D20-

C8474683E203E3C5 (last visited May 10, 2011) (finding that 78 percent of teens report that kids who are gay 

or thought to be gay are teased or bullied in their schools and communities, that 93 percent of teens reported

hearing other kids use derogatory words about sexual orientation at least once in a while, and that 51 percent

reported hearing them daily). Public Comments indicate that transgender and gender nonconforming students 

are subjected to even higher rates of bullying. See Public Comment of National Center for Transgender 

Equality, at 2-5, May 2011, available at

http://transequality.org/PDFs/US%20Civ%20Rts%20Commn%20NCTE%20statement%205%206%2011.pdf

(last visited Sept. 9, 2011).

76 See GLSEN 2009 SCHOOL CLIMATE SURVEY, supra note 75, at 28. The survey defined ―cyberbullying‖ as 

being harassed or threatened by peers through electronic media such as text messaging, emails, instant 

messaging, or postings on the Internet. See also Byard Statement, supra note 73, at 4.
Peer-to-Peer Violence and Bullying 17

because of their sexual orientation;77 similarly, a 2005 survey by GLSEN and Harris 

Interactive found that LGBT students were three times as likely as non-LGBT students to 

feel unsafe at school.78

Surveys of students in California have found 

similarly high results. In a 2003 student survey by 

the California Safe Schools Coalition and the GayStraight Alliance Network, called the Preventing 

School Harassment (PSH) survey, 65 percent of 

LGBT students reported being harassed or bullied 

based on their actual or perceived sexual 

orientation.79 The same report found that 91

percent of students surveyed reported having heard 

others make negative remarks based on sexual 

orientation.80 The 2007-2009 California Healthy 

Kids Survey found that 12 percent of all 7th, 9th

and 11th grade students in California‘s total student population reported being harassed or 

bullied because they were gay or lesbian, or because someone thought they were gay or 

lesbian.81 In the PSH study, 46 percent of students, asked whether their schools were safe for 

LGBT students, reported that this statement was ―not at all true‖ or ―a little true.‖82

Similarly, Professor Mark Friedman, of the University of Pittsburgh Graduate School of 

Public Health, found that ―sexual minority youth were 170 [percent] more likely [than 

heterosexual students] to be assaulted at school,‖ and that 40 percent of lesbians, 44 percent 

 

77 See GLSEN 2009 SCHOOL CLIMATE SURVEY, supra note 75, at 22; see also Byard Statement, supra note 73, 

at 3.

78 See HARRIS INTERACTIVE & GAY, LESBIAN & STRAIGHT EDUC. NETWORK, FROM TEASING TO TORMENT:

SCHOOL CLIMATE IN AMERICA—A SURVEY OF STUDENTS AND TEACHERS 59 (2005), available at

http://www.glsen.org/binary-data/GLSEN_ATTACHMENTS/file/499-1.pdf (last visited May 9, 2011); see also 

Byard Statement, supra note 73, at 3.

79 See CAL. SAFE PLACE, supra note 33, at 14.

80 See id. Seventy-nine percent of students surveyed reported that they heard such negative comments 

―sometimes‖ or ―often.‖ See id.

81 CHKS MAIN REPORT, supra note 33, at 41; see also CAL. SAFE PLACE, supra note 33, at 6 (discussing results 

of the 2001-2002 survey); Herek Statement, supra note 74, at 17.

82 See CAL. SAFE PLACE, supra note 33, at 13.

[They] grabbed Nabozny and 

pushed him to the floor.

[They] held Nabozny down 

and performed a mock rape 

on Nabozny, exclaiming that 

Nabozny should like it. The 

boys carried out the mock 

rape as twenty other 

students looked on and 

laughed.

Nabozny v. Podlesny

92 F.3d 446, 451 (7th Cir. 1996)
18 Introduction and Background

of bisexual females, 43 percent of gay males and 50 percent of bisexual males had been 

assaulted at school.83 This finding was based on a meta-analysis, comparing aggregate data 

from a number of independent studies.84

Several studies have shown that LGBT students‘ academics suffer as a result of bullying 

based on sexual orientation. The GLSEN 2009 Survey found that LGBT students subjected 

to high levels of anti-LGBT bullying were about three times as likely to have been absent 

from school in the previous month.85 It also found that LGBT students achieved lower grades 

when they were subjected to more frequent victimization,86 and that a correlation exists 

between victimization and LGBT students‘ plans not to pursue post-secondary education.87 A 

report by the California Safe Schools Coalition and the 4-H Center for Youth Development at 

the University of California, Davis likewise found that students in California who were 

harassed based on actual or perceived sexual orientation were more than three times as likely 

to have skipped at least one day of school in the previous month because they felt unsafe, and 

that 24 percent of students who were harassed based on actual or perceived sexual orientation 

reported usual grades of Cs or lower (compared to 17 percent of students who were not 

harassed).88 Similarly, Professor Friedman‘s meta-analysis concluded that ―sexual minority 

youth were ... 240 [percent] more likely [than heterosexual youth] to miss school due to fear 

that they would be unsafe at school or on [their] way to or from school,‖ and that 16 percent

of lesbian females, 23 percent of bisexual females, 14 percent of gay males, and 23 percent

of bisexual males missed school for this reason.89

 

83 Public Comment of Mark S. Friedman, Assoc. Professor, Univ. of Pittsburgh, at 2, May 26, 2011, available 

at http://www.eusccr.com/Friedman_Letter%20USCCR%205-26-11.pdf (Sept. 16, 2011) [hereinafter Friedman 

Comment]. See also INST. OF MEDICINE OF THE NAT‘L ACADS., BD. ON THE HEALTH OF SELECT POPULATIONS,

COMM. ON LESBIAN, GAY, BISEXUAL, & TRANSGENDER HEALTH ISSUES & RESEARCH GAPS & OPPORTUNITIES,

THE HEALTH OF LESBIAN, GAY, BISEXUAL, AND TRANSGENDER PEOPLE: BUILDING A FOUNDATION FOR BETTER 

UNDERSTANDING 157-58 (2011), available at http://books.nap.edu/openbook.php?record_id=13128 (last visited 

Aug. 1, 2011) [hereinafter IOM STUDY] (―Compared with heterosexual youth, LGBT youth report experiencing 

higher levels of harassment, victimization, and violence, including verbal, physical and sexual abuse.‖).

84 See Friedman Comment, supra note 83, at 1.

85 See GLSEN 2009 SCHOOL CLIMATE SURVEY, supra note 75, at 47; Byard Statement, supra note 73, at 5.

86 See GLSEN 2009 SCHOOL CLIMATE SURVEY, supra note 75, at 46-47; Byard Statement, supra note 73, at 5.

87 See GLSEN 2009 SCHOOL CLIMATE SURVEY, supra note 75, at 46-47; Byard Statement, supra note 73, at 5.

88 See CAL. SAFE PLACE, supra note 33, at 8; see also Public Comment of Transgender Law Center, at 3, Apr. 

27, 2011, available at 

http://transequality.org/PDFs/US%20Civ%20Rts%20Commn%20NCTE%20statement%205%206%2011.pdf

(last visited Sept. 9, 2011).

89 Friedman Comment, supra note 83, at 2.
Peer-to-Peer Violence and Bullying 19

Bullying based on sexual orientation can be extremely traumatic for students—perhaps even 

more so than bullying that is not based on a student‘s identity (i.e., their sex, race, ethnicity, 

national origin, disability, sexual orientation, or religion).

90 Research shows that this is the 

case even though LGBT students do not have inherent vulnerabilities that would lead to such 

psychological stress.

91 Numerous studies have found a mental-health impact resulting from 

anti-LGBT harassment.92 According to the California Safe Schools Coalition report, students 

in California that were harassed based on actual or perceived sexual orientation were more 

likely to report smoking, drinking alcohol, and drug use,93 and were nearly four times more 

likely than non-harassed students to have carried a weapon to school in the previous year.94

In addition, the GLSEN 2009 Survey found that LGBT students subjected to bullying were 

 

90 See Herek Statement, supra note 74, at 20-21 (―Although bullying and victimization have negative 

consequences for all students who experience them, being targeted for bullying because of one‘s sexual 

orientation is associated with more problems and greater distress than is experiencing bullying or harassment 

that is not related to one‘s identity.‖); id. at 20 (―Several studies have found that experiences with harassment 

and victimization based on sexual orientation account for much or all of the disparities between heterosexual 

and nonheterosexual students in mental health, substance use, truancy and poor school performance, and risk 

behaviors.‖); Meyer Statement, supra note 30, at 10 (―By definition, minority stress is unique, in that it affects 

and requires special adaptation by LGB people but not by heterosexuals. Therefore, minority stress confers a 

unique risk for diseases that are caused by stressed.‖); CAL. SAFE PLACE, supra note 33, at 11 (―[O]utcomes 

associated with harassment based on actual or perceived sexual orientation are much more severe than 

outcomes associated with other harassment and bullying not based on race/ethnicity/national origin, religion, 

gender, sexual orientation, or disability.‖); see also Herek Statement, supra note 74, at 14 (―Research indicates 

that experiencing stigma and discrimination is associated with heightened psychological distress—both among 

gay and lesbian adults and adolescents. Being the target of extreme enactments of stigma, such as antigay 

criminal assault, is accompanied by greater psychological distress than is experiencing a similar crime not based 

on one‘s sexual orientation.‖); Meyer Statement, supra note 30, at 12 (―Hate crimes—perpetrated by family or 

strangers—are a particularly painful type of prejudice event because they inflict not only the pain of the assault 

itself, but also the pain associated with the social disapproval of the victim‘s stigmatized social group. ... Such 

victimization affects the victim‘s mental health because it damages his or her sense of justice and order.‖).

91 See IOM Study, supra note 83, at 146-47 (―It is important to note that LGBT youth are typically well adjusted 

and mentally healthy. Research based on probability samples with LGB youth consistently indicates that the 

majority do not report mental health problems. Regarding transgender youth, although no data from national 

probability samples are available, studies with sizable convenience samples indicate that many, if not most, of 

those youth do not report mental health problems.‖) (citations omitted); Herek Statement, supra note 74, at 6-9 

(describing homosexuality as a normal expression of human sexuality); Public Comment of Gay & Lesbian 

Alliance Against Defamation (GLAAD), at 4, May 3, 2011, available at http://www.eusccr.com/GLAAD.pdf

(last visited on Sept. 15, 2011) [hereinafter GLAAD Comment] (―Research by leading psychologists has shown 

that individuals who identify as gay or lesbian do not have any inherent pre-existing conditions or factors that 

lead to depression and psychological stress, but rather the psychological stress is a direct result of, inter alia, 

negative societal messages.‖).

92 See, e.g., IOM STUDY, supra note 83, at 158 (―The experiences [with harassment, victimization, and violence] 

are related to increased substance abuse, mental health problems, and sexual risk-taking behavior.‖) (citation 

omitted).

93 See CAL. SAFE PLACE, supra note 33, at 9 (analyzing data from the 2001-2002 California Healthy Kids 

Survey); see also Herek Statement, supra note 74, at 20.

94 See CAL. SAFE PLACE, supra note 33, at 9.
20 Introduction and Background

more likely to suffer from depression, anxiety, and low self-esteem.95 Tragically, numerous 

studies have also found that LGBT students are more likely to consider96 or attempt97

suicide98—a statistic that is borne out by anecdotal evidence as well.99 The psychological 

effects of anti-LGBT bullying have been found to last long after adolescence.100

 

95 See GLSEN 2009 SCHOOL CLIMATE SURVEY, supra note 75, at 48; Byard Statement, supra note 73, at 5-6; 

Meyer Statement, supra note 30, at 14 (―Considering the chronic exposure to prejudice, discrimination, and 

violence at schools, is [sic] not surprising...that such anxiety, and the vigilance required because of expectation 

for harm, is responsible for the poorer academic performance and truancy of LGBT youth‖) (citations omitted).

96 See CAL. SAFE PLACE, supra note 33, at 8-9 (finding that students harassed based on actual or perceived 

sexual orientation are three times as likely to ―seriously consider‖ suicide and more than three times as likely to 

―make a plan for attempting suicide‖); see also Herek Statement, supra note 74, at 20; Public Comment of 

Caitlin C. Ryan, Dir., Family Acceptance Project, S.F. State Univ., at 1-2, May 23, 2011, available at 

http://familyproject.sfsu.edu/files/Gender%20&%20School%20Victimization_rel.pdf (last visited Sept. 9, 2011) 

[hereinafter Ryan Comment].

97 See Anthony R. D‘Augelli et al., Suicide Patterns and Sexual Orientation—Related Factors Among Lesbian, 

Gay and Bisexual Youths, 31 SUICIDE & LIFE THREATENING BEHAVIOR 250, 261 (2001), available at 

http://www.hhdev.psu.edu/hdfs/faculty/pubs/DAugelliSLTB01.pdf (last visited Feb. 18, 2011) (concluding that 

35 percent of gay, lesbian and bisexual youth have attempted suicide at least once); Mass. Comm‘n on Gay, 

Lesbian, Bisexual & Transgender Youth, Massachusetts High School Students and Sexual Orientation: Results 

of the 2009 Youth Risk Behavior Survey, http://www.mass.gov/cgly/YRBS09Factsheet.pdf (last visited May 

10, 2011) (finding that gay, lesbian, and bisexual high school students are 4.4 times more likely to attempt 

suicide than their heterosexual peers); see also Meyer Statement, supra note 30, at 22 (―Minority stress is also 

associated with a higher incidence of suicide attempts among LGB compared with heterosexual individuals. ... 

This increase in suicidality is mostly related to minority stress encountered by youth due to coming out conflicts 

with family and community.‖) (citations omitted).

98 See IOM STUDY, supra note 83, at 147:

Over the past decade, an increasing number of studies based on large probability samples 

have consistently found that LGB youth and youth who report same-sex romantic attraction 

are at increased risk of suicidal ideation and attempts, as well as depressive symptoms, in 

comparison with their heterosexual counterparts. These include both school-based, state-based 

and national studies. The results of these studies suggest increased rates of suicidal ideation 

and attempts among LGB youth in comparison with heterosexual youth even after controlling 

for potentially confounding factors such as substance abuse and depression. (citations 

omitted).

But see Kenneth M. Cohen & Ritch C. Savin-Williams, The Positive Lives of Gay Teens, Pa. 

Psychological Ass‘n, Psychological News You Can Use (Dec. 2010): 

[F]actors other than same-sex attractions place youth at risk for mental health problems. Chief 

among them is transgressing gender boundaries in behavior and interests. Gender 

nonconformity is the impetus for verbal and physical harassment meted out by a small 

number of bullies who often attack peers, regardless of sexuality, who appear unduly feminine 

(boys) or masculine (girls).

99 See Statement of Tammy Aaberg at 8, May 13, 2011, available at http://www.eusccr.com/19-

1%20Tammy%20Aaberg,%20Parent.pdf (last visited June 23, 2011) [hereinafter Aaberg Statement] (―These 

children are dead. My son is dead. ... All of these children, and too many others across the country, all died too 

young as a result of bullying and harassment and will be forever missed by their friends and families.‖); id. at 5 

(―Students tell me that everything starts to weigh down on you and things pile up until eventually it becomes 

too much and you want the pain to end, so many start considering suicide as they believe it will save them and 

their loved ones the pain life brings them or they feel they have no hope of things ever getting better for

them.‖); Public Comment of Wendy Walsh at 2, Apr. 25, 2011, available at 

http://www.eusccr.com/Walsh,%20Wendy.pdf (last visited Sept. 15, 2011) (―I can‘t bring my son back. ... No 

mother should ever have to lose their 13-year-old child to intolerance and anti-gay harassment, especially in a 
Peer-to-Peer Violence and Bullying 21

Religion

Bullying based on students‘ religion is also a problem in 

America‘s schools. Recent media reports give demonstrative, 

albeit largely anecdotal, evidence of the issue.

Bullying of Muslim students has reportedly increased since 

the September 11, 2001 terrorist attacks.101 In one incident 

during the 2009-2010 school year, a middle school student in 

Staten Island, NY was taunted, teased, and ultimately attacked 

by his classmates because he was Muslim.102 The student told 

the New York Post, ―They punched me. They spit in my face.

They tripped me on the floor. They kicked me with their feet 

and punched me .... And as they were kicking and laughing, 

they kept saying,  ̳You f---ing terrorist, f---ing Muslim, you f--

-ing terrorist.‘‖103 Sikh children have also reported an increase of bullying incidents since 

September 11. Although the Sikh religion is distinct from Islam, students purportedly target 

 

place that should be providing them with an education and putting them on a path to a promising future.‖); 

Public Comment of Rep. Keith Ellison, U.S. House of Representatives, at 1, Apr. 27, 2011, available at 

http://www.eusccr.com/29.%20U.S.%20Rep.%20Keith%20Ellison.pdf (last visited June 23, 2011) [hereinafter 

Ellison Comment] (―Nine enrolled or recently graduated middle and high school students [in a single school 

district in Minnesota] committed suicide in 2010, including three who were gay or lesbian.‖).

100 See Herek Statement, supra note 74, at 21 (―The negative psychological effects of bullying and peer 

victimization appear to last after students leave high school. In a study of sexual and gender minority young 

adults (21-25 years old), experiencing school victimization during the teen years was associated with higher 

current levels of depression, more suicidal thoughts, lower self-esteem, and less life satisfaction.‖); Ryan 

Comment, supra note 96, at 2 (―We found that ... LGBT young adults who reported high levels of LGBT 

school victimization during adolescence were 5.6 times more likely to report having attempted suicide, 5.6 

times more likely to report a suicide attempt that required medical care, 2.6 times more likely to report clinical 

levels of depression, and more than twice as likely to have been diagnosed with a sexually transmitted disease 

and to report risk for HIV infection, compared with peers who reported low levels of school victimization.‖).

101 See Sabrina Holcomb, Muslims in America: When Bullying Meets Religion, 

http://www.nea.org/home/42528.htm (last visited May 6, 2011) (citing reports that bullying of Muslim students 

has increased since the September 11 terrorist attacks).

102 Ikimulisa Livingston & Leonard Greene, Terrorized for Being a Muslim, N.Y. POST, Oct. 12, 2010, 

available at 

http://www.nypost.com/p/news/local/staten_island/terrorized_for_being_muslim_8rQSU8Z5ibbMOeJnDGFOr

O (last visited May 8, 2011). The student reported being kicked in the head and the groin until he bled. See id.

103 Id.; see also Statement of Kenneth L. Marcus, Exec. V.P. & Dir. of the Anti-Semitism Initiative, Inst. for 

Jewish & Cmty. Research, at 4, May 13, 2011, available at 

http://www.eusccr.com/15.%20Kenneth%20L.%20Marcus,%20Institute%20for%20Jewish%20&%20Communi

ty%20Research.pdf (last visited June 23, 2011) [hereinafter Marcus Statement]; Holcomb, supra note 101 (―The 

One student had his 

orbital bone broken at 

school. Another one had 

his turban set on fire by 

a bully. Two had their 

hair, which [Sikhs are] 

required to maintain 

uncut, forcibly cut by 

bullies. 

– Rajdeep Singh, Sikh 

Coalition

(Briefing Transcript, p. 195)
22 Introduction and Background

Sikh students out of confusion stemming from Sikhs‘ visible religious articles such as 

turbans and uncut hair.104 A 2010 survey by the Sikh Coalition, conducted in the San 

Francisco Bay Area in California, found that 47 percent of local Sikh youth were subjected to 

bullying.105 Of the boys who wear turbans (or patkas), 74 percent reported being subjected to 

bullying.106 The survey found bullying to be most prevalent in Alameda County, where 86

percent of Sikh boys reported being targeted.107 Likewise, a 2007 Sikh Coalition survey of 

Sikh youth in New York City found that 58.4 percent of local Sikh students had been 

subjected to bullying.108 The survey found that 62.2 percent of boys who wear turbans (or 

patkas) reported that they were bullied and 42 percent reported being physically hit or 

involuntarily touched.109 In the borough of Queens, as high as 77.5 percent of boys reported 

being bullied.110

Religion-based bullying is not limited to Muslims and Sikhs. Media reports in recent years 

describe students in numerous schools engaging in a so-called ―Kick a Jew Day,‖ where 

groups of students target and kick their Jewish classmates.111 And the U.S. Department of 

 

dimension that makes the bullying of Muslim students particularly disturbing centers around the open 

prejudices and fears of adults, giving the green light to non-Muslim children that it‘s okay—even patriotic—to 

discriminate‖).

104 See Statement of Rajdeep Singh, Dir. of Law & Policy, Sikh Coalition, at 1, May 13, 2011, 

http://www.eusccr.com/17. Rajdeep Singh, Sikh Coalition.pdf (last visited June 23, 2011) [hereinafter Singh 

Statement] (―Although the Sikh turban is a symbol of nobility and signifies a commitment to upholding 

freedom, justice, and dignity for all people, the physical appearance of a Sikh is often ignorantly conflated with 

images of foreign terrorists, some of whom also wear turbans and many of whom have received copious 

publicity in our mainstream media in the post-9/11 environment.‖). In an incident described to the Commission, 

a Sikh boy from the San Francisco Bay Area was called ―diaper head‖ from the first grade; in middle school he 

was ―called names, pushed, shoved, beaten up, had his books stolen, [turban] ripped off, lockers broken, and the 

day before his class final, his folder was stolen.‖ Id. at 2.

105 SIKH COALITION, SIKH COALITION BAY AREA CIVIL RIGHTS REPORT 7 (2010), available at

http://www.sikhcoalition.org/documents/Bay_Area_Civil_Rights_Agenda.pdf (last visited May 6, 2011) 

[hereinafter SIKH COALITION BAY AREA].

106 Id. at 3; see also Singh Statement, supra note 104, at 2.

107 SIKH COALITION BAY AREA, supra note 105, at 3.

108 SIKH COALITION, HATRED IN THE HALLWAYS: A PRELIMINARY REPORT ON BIAS AGAINST SIKH STUDENTS IN 

NEW YORK CITY‘S PUBLIC SCHOOLS 5, 8 (2007), available at

http://www.sikhcoalition.org/documents/hatred_in_the_hallways.pdf (last visited May 6, 2011) [hereinafter 

SIKH COALITION NYC].

109 Id. at 5; see also Singh Statement, supra note 104, at 2; Marcus Statement, supra note 103, at 4.

110 SIKH COALITION NYC, supra note 108, at 5.

111 See George Bassler, Vestal Officials Investigating Incident at High School, PRESSCONNECTS.COM, Jan. 20, 

2011, http://www.spme.net/cgi-bin/articles.cgi?ID=7616 (last visited May 8, 2011); Katherine Albers, 10 North 

Naples Middle School Students Suspended for Taking Part in “Kick a Jew Day”, NAPLESNEWS.COM, Nov. 23, 

2009, http://www.naplesnews.com/news/2009/nov/23/north-naples-middle-suspended-kick-a-jew-day-email

(last visited May 8, 2011); see also Marcus Statement, supra note 103, at 4-5.
Peer-to-Peer Violence and Bullying 23

Education‘s Office for Civil Rights has received complaints of students being harassed for 

their Christian faith.112

Legal Protections

This report addresses federal efforts to enforce prohibitions on peer-to-peer violence rooted 

in discrimination that takes place in public K-12 schools. Several civil rights statutes protect 

students from such harassment, including Title IX of the Education Amendments of 1972, 

Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and 

Title II of the Americans with Disabilities Act.113

These statutes apply to private suits for damages, ED‘s administrative enforcement, and both 

private and DOJ suits for injunctive relief. As a background to ED and DOJ‘s enforcement 

efforts, this section discusses the legal standards developed by courts in the context of private 

suits for damages. Both ED and DOJ use somewhat different legal standards in their 

administrative enforcement and suits for injunctive relief, respectively.114

Title IX

Title IX of the Education Amendments of 1972 (Title IX) prohibits public and private 

schools that receive federal financial assistance from discriminating on the basis of sex.115

 

112 See Kenneth L. Marcus, Deputy Asst. Sec‘y for Enforcement, Delegated the Authority of the Asst. Sec‘y for 

Civil Rights, U.S. Dep‘t of Educ., Dear Colleague Letter: Title VI and Title IX Religious Discrimination in 

Schools and Colleges, Sept. 13, 2004, available at http://www2.ed.gov/about/offices/list/ocr/religiousrights2004.html (last visited May 8, 2011) (―OCR has recently encountered allegations of racial and sex 

discrimination, commingled with aspects of religious discrimination against Christian students.‖).

113 In addition to these statutes, OCR also enforces the Age Discrimination Act of 1975, 42 U.S.C. § 6101 et 

seq. (2006), and the Boy Scouts of America Equal Access Act, 20 U.S.C. § 7905 (2006); DOJ also enforces 

Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c et seq. (2006), and the Equal Educational 

Opportunities Act of 1974, 20 U.S.C. § 1703 (2006), and it may intervene in private suits alleging violations of 

anti-discrimination statutes and/or the Fourteenth Amendment to the U.S. Constitution. When enforcing Title 

IV, which protects against discrimination based on race, color, religion, sex, or national origin, DOJ interprets 

that title to be consistent with case law under Title VI and Title IX, and thus applies the same legal standards 

under Title IV as it does under the those titles.

114 For further information regarding the legal standards used by ED and DOJ, see infra pp. 28-42.

115 20 U.S.C. § 1681(a) (2006) (―No person in the United States shall, on the basis of sex, be excluded from 

participation in, be denied the benefits of, or be subjected to discrimination under any education program or 

activity receiving Federal financial assistance ....‖); see also id. at § 1681(c) (―For purposes of this chapter an 
24 Introduction and Background

Schools in violation of Title IX can be subject to termination of their federal funding or other 

administrative remedies,116 or to civil suit for damages or injunctive relief.117

Courts treat sexual harassment as a form of sex discrimination prohibited by Title IX, though 

the statute does not reference it directly. In Franklin v. Gwinnett County Public Schools, the 

Supreme Court held that teacher-on-student sexual harassment qualifies as sexdiscrimination under Title IX.118 The Court expanded that holding in Davis v. Monroe 

County Board of Education to include student-on-student sexual harassment as well.119 In 

addition to sexual harassment, courts have also defined sex discrimination to include sexual 

violence120 and sex-stereotyping.

121

In private suits for damages, courts have set a high bar for school liability for peer-to-peer

harassment under Title IX.122 First, the harassment at issue must be ―so severe, pervasive, 

and objectively offensive that it can be said to deprive the victims of access to the 

educational opportunities or benefits provided by the school.‖123 Second, school officials 

 

educational institution means any public or private preschool, elementary, or secondary school, or any 

institution of vocational, professional, or higher education ....‖). For a discussion of federal enforcement efforts 

under Title IX involving students who are targeted in part due to their sexual orientation or gender identity, see 

Chapter Six.

116 Id. § 1682. 

117 See Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75-76 (1992).

118 Id. at 75. (―Unquestionably, Title IX places on [schools] the duty not to discriminate on the basis of sex, and 

 ̳when a supervisor sexually harasses a subordinate because of the subordinate‘s sex, that supervisor 

―discriminate[s]‖ on the basis of sex.‘ We believe the same rule should apply when a teacher sexually harasses 

and abuses a student.‖) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)).

119 Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650 (1999) (―[S]tudent-on-student sexual harassment, if 

sufficiently severe, can . . . rise to the level of discrimination actionable under [Title IX].‖).

120 See, e.g., J.K. v. Ariz. Bd. of Regents, No. CV 06-916-PHX-MHM, 2008 WL 4446712 at *12 (D. Ariz. Sept. 

30, 2008) (citing Soper v. Hoben, 195 F.3d 845, 855 (6th Cir. 1999)) (holding that rape of plaintiff constituted 

―severe, pervasive, and objectively offensive‖ sexual harassment); Kelly v. Yale Univ., No. Civ. A. 3:01-CV1591, 2003 WL 1563424, at *3 (D. Conn. Mar. 26, 2003) (―There is no question that a rape ... constitutes 

severe and objectively offensive sexual harassment ...‖); S.S. v. Alexander, 177 P.3d 724, 741 (Wash. Ct. App. 

2008) (stating that ―[i]n the Title IX context, there is no  ̳one free rape‘ rule‖).

121 See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by statute on other grounds (holding that 

sex-stereotyping is actionable under Title VII); see also, e.g., Doe v. Brimfield Grade Sch., 552 F. Supp. 2d 816, 

823 (C.D. Ill. 2008) (―Discrimination because one‘s behavior does not  ̳conform to stereotypical ideas‘ of one‘s 

gender can amount to actionable discrimination  ̳based on sex‘‖) (citing Howell v. N. Cent. Coll., 320 F.Supp. 

2d 717 (N.D. Ill. 2004)); Snelling v. Fall Mountain Reg‟l Sch. Dist., No. Civ. 99-488-JD, 2001 WL 276975, at 

*4 (D. N.H. Mar. 21, 2001) (―The plaintiffs respond that the harassment they experienced arose from the 

perpetrators‘ sex-based stereotypes of masculinity .... [T]he plaintiffs articulate an actionable basis for their 

Title IX claim ....‖). 

122 See generally Goss Graves Statement, supra note 37, at 4-7, 9-10. 

123 Davis, 526 U.S. at 650.
Peer-to-Peer Violence and Bullying 25

―with the authority to take corrective action to end the discrimination‖124 must have actual 

knowledge of the conduct.125 And finally, those officials must have been ―deliberately 

indifferent‖ to the sexual harassment.126

Title VI

Title VI of the Civil Rights Act of 1964 (Title VI) prohibits public and private schools that 

receive federal financial assistance from discriminating on the basis of race, color, or national 

origin.127 As with Title IX, schools in violation of Title VI can be subject to termination of 

their federal funding or other administrative remedies,128 or to civil suit for damages or 

injunctive relief.129 Because the language of Titles VI and IX is nearly identical, courts have 

generally applied the same standards to peer-to-peer harassment under Title VI that the 

Supreme Court developed regarding peer-to-peer harassment under Title IX.130 As with Title 

IX, in private suits for damages the race-, color- or national-origin-based harassment must be 

―so severe, pervasive, and objectively offensive‖ that it deprives students of educational 

opportunities or benefits;131 school officials must have actual knowledge of the conduct;132

and the officials must be ―deliberately indifferent‖ to the harassment.133

 

124 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

125 Davis, 526 U.S. at 650; see also Gebser, 524 U.S. at 290.

126 Davis, 526 U.S. at 650; see also Gebser, 524 U.S. at 290.

127 42 U.S.C. § 2000d (2006) (―No person in the United States shall, on the ground of race, color, or national 

origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any 

program or activity receiving Federal financial assistance.‖); see also id. § 2000d-4a(2)(B) (2006), 3(A)(ii) 

(―For the purposes of this subchapter, the term  ̳program or activity‘ and the term  ̳program‘ mean all of the

operations of ... a local educational agency ..., system of vocational education, or other school system [or] an 

entire corporation, partnership, or other private organization ... which is principally engaged in the business of 

providing education ....‖). For a discussion of federal enforcement efforts under Title VI involving students 

who are targeted in part due to their religion, see Chapter 6.

128 Id. § 2000d-1 (2006). 

129 See Barnes v. Gorman, 536 U.S. 181, 185-89 (2002); Guardians Ass‟n v. Civil Serv. Comm‟n of N.Y., 463 

U.S. 582, 597-603 (1983).

130 See, e.g., DT v. Somers Cent. Sch. Dist., 348 Fed. App‘x 697, 699 & n.2 (2d Cir. 2009) (―Because Title VI 

and Title IX use parallel language, we construe them similarly.‖); Whitfield v. Notre Dame Middle Sch., No. 09-

2649, slip op., 2011 WL 94735 at *3 & n.2 (3d Cir. Jan. 12, 2011) (―We construe Titles VI and IX similarly 

because they use parallel language.‖); Bryant v. Indep. Sch. Dist. No. I-38 of Garvin County, Okla., 334 F.3d 

928, 934 (10th Cir. 2003) (―The Court‘s reasoning in Davis guides our resolution of the instant case because 

Congress based Title IX on Title VI; therefore, the Court‘s analysis of what constitutes intentional sexual 

discrimination under Title IX directly informs our analysis of what constitutes intentional racial discrimination 

under Title VI (and vice versa).‖); see also Barnes v. Gorman, 536 U.S. 181, 185 (2002).

131 See Davis, 526 U.S. at 650; see also, e.g., Qualls v. Cunningham, 183 Fed. App‘x 564, 567 (7th Cir. 2006) 

(―To establish a hostile educational environment under Title VI, [the plaintiff] must show that the alleged 
26 Introduction and Background

Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with 

Disabilities Act

Courts have also found that both Section 504 of the Rehabilitation Act of 1973 (Section 504) 

and Title II of the Americans with Disabilities Act of 1990 (Title II) protect students from 

peer-to-peer harassment based on disability. Section 504 prohibits public and private schools 

that receive federal financial assistance from discriminating against students due to 

disability.134 Likewise, Title II135 prohibits public entities, including state or local 

governments, from discriminating against individuals due to disability.

136 Both statutes state 

that violators are subject to the same remedies as under Title VI,137 which include loss of 

 

harassment was severe or pervasive enough to deprive him of access to educational benefits.‖); Whitfield, 2011 

WL 94735 at *3 (―The harassment must be  ̳severe, pervasive, and objectively offensive,‘ and rise above the 

level of  ̳simple acts of teasing and name-calling among school children ... even where these comments target 

differences in [race].‘‖) (quoting Davis, 236 U.S. at 652).

132 See Davis, 526 U.S. at 650; Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998); see also, e.g., 

Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 141 & n.6 (2d Cir. 1999) (citing Gebser, 118 S. Ct. at 1996-

99).

133 See Davis, 526 U.S. at 650; Gebser, 524 U.S. at 290; see also, e.g., Bryant, 334 F.3d at 934 (directing the 

district court to apply the Davis test for deliberate indifference); Monteiro v. Tempe Union High Sch. Dist., 158 

F.3d 1022, 1034 (9th Cir. 1998) (―When a district is  ̳deliberately indifferent‘ to its students‘ right to a learning 

environment free of racial hostility and discrimination, it is liable for damages under Title VI.‖) (citing Gebser, 

524 U.S. 274).

134 See 29 U.S.C. § 794(a) (2006) (―No otherwise qualified individual with a disability in the United States ... 

shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or 

be subjected to discrimination under any program or activity receiving Federal financial assistance ....‖); see id.

§ 794(b)(2)(B)-(3)A) (2006) (―For the purposes of this section, the term  ̳program or activity‘ means all of the 

operations of ... a local educational agency, system of vocational education, or other school system [or] an 

entire corporation, partnership, or other private organization ... which is principally engaged in the business of 

providing education ...‖).

135 In addition, Title III of the Americans with Disabilities Act also prohibits private educational institutions 

from discriminating against individuals due to disability. See, e.g., 42 U.S.C. § 12182 (2006) (―No individual 

shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, 

facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who 

owns, leases (or leases to), or operates a place of public accommodation.‖); id. § 12181(7)(J) (2006) (―The 

following private entities are considered public accommodations for purposes of this subchapter, if the 

operations of such entities affect commerce ... a nursery, elementary, secondary, undergraduate, or 

postgraduate private school, or other place of education.‖). Title III is outside the scope of this report, which 

addresses prohibitions against harassment in public K-12 schools.

136 See 42 U.S.C. § 12132 (2006) (―[N]o qualified individual with a disability shall, by reason of such disability, 

be excluded from participation in or be denied the benefits of the services, programs, or activities of a public 

entity, or be subjected to discrimination by any such entity.‖); id. § 12131(1)(B) (―The term  ̳public entity‘ 

means ... any department, agency, special purpose district, or other instrumentality of a State or States or local 

government ....‖).

137 See id. § 12133 (2006) (―The remedies, procedures, and rights set forth in [29 U.S.C. § 794a] shall be the 

remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of 

disability ....‖); 29 U.S.C. § 794a(a)(2) (2006) (―The remedies, procedures, and rights set forth in title VI of the 
Peer-to-Peer Violence and Bullying 27

federal funding, or civil suit for damages or injunctive relief.138 Because they are so similar, 

courts generally analyze Section 504 and Title II together when addressing claims related to 

peer-to-peer violence.139

Furthermore, because the texts of Section 504 and Title II mirror the language used in Titles

IX and VI, several courts have analyzed peer-to-peer harassment of students with disabilities 

under the framework set forth by the Supreme Court in Davis.

140 In order to make a claim in 

private suits for damages, students must allege that, due to their disability, they have suffered 

from harassment ―so severe, pervasive, and objectively offensive‖141 that it deprives them of 

educational opportunities or benefits; that school officials had actual knowledge of the 

conduct;142 and that the officials were ―deliberately indifferent‖ to the harassment.143

 

Civil Rights Act of 1964 ... shall be available to any person aggrieved by any act or failure to act by an 

recipient of Federal assistance ... under section 794 of this title.‖).

138 See generally Barnes v. Gorman, 536 U.S. 181, 185-90 (2002). 

139 See, e.g., Werth v. Bd. of Dirs. of the Pub. Schs. of Milwaukee, 472 F. Supp. 2d 1113, 1126 (E.D. Wis. 2007) 

(―Because the reach of both statutes is the same, claims under these provisions are analyzed together.‖) (citing 

K. M. ex rel. D. G. v. Hyde Park Cent. Sch. Dist., 381 F.Supp. 2d 343 (S.D.N.Y. 2005)).

140 See, e.g., K.M., 381 F. Supp. 2d at 359-61. Although a few cases have instead applied legal precedent related 

to hostile work environment under Title VII, this line began with a case published pre-Davis, and does not 

appear to be the prevailing approach. See, e.g., Guckenberger v. Boston Univ., 957 F. Supp. 306, 313-15 (D. 

Mass. 1997); Cabrea-Diaz v. Penn Kidder Campus Jim Thorpe Sch. Dist., No. 3:08-2192, slip op., 2010 WL 

5818289, at *11 (M.D. Pa. Aug. 9, 2010) (citing Guckenberger); Derrick F. v. Red Lion Area Sch. Dist., 586 F. 

Supp. 2d 282, 308-09 (M.D. Pa. 2008) (citing Guckenberger).

141 See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650 (1999); see also, e.g., Werth, 472 F. Supp. 2d 

at 1129; P.R. ex. rel. Rawl v. Metro. Sch. Dist. of Wash. Twp., Slip Copy, No. 1:08-cv-1562-WTL-DML, 2010 

WL 4457417, at *5, 7 (S.D. Ind. Nov. 1, 2010).

142 See Davis, 526 U.S. at 650; Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998); see also, e.g.,

Werth, 472 F. Supp. 2d at 1129; P.R., 2010 WL 4457417, at *7-8.

143 See Davis, 526 U.S. at 650; Gebser, 524 U.S. at 290; see also, e.g., S.S. v. Eastern Ky. Univ., 532 F.3d 445, 

453-56 (6th Cir. 2008); Biggs v. Bd. of Educ. of Cecil County, Md., 229 F. Supp. 2d 437, 445 (D. Md. 2002).
28 Federal Enforcement Efforts: The U.S. Department of Education

Chapter 3. FEDERAL ENFORCEMENT EFFORTS: THE 

DEPARTMENT OF EDUCATION

he Department of Education‘s Office for Civil Rights (OCR) plays the dominant 

role in evaluating complaints alleging discrimination based on race/national origin, 

sex, and disability in schools. From 2005 to March 21, 2011,

144 OCR received 

4,433 complaints alleging harassment based on race/national origin, sex, and disability.145

In addition to complaints processing, OCR is involved in a number of other activities related 

to combating bullying and other forms of peer-to-peer violence. In these efforts, ED has 

joined the Departments of Health and Human Services, Justice, Defense, Agriculture, and 

Interior, as well as the National Council on Disability and the Federal Trade Commission, as 

members of the Federal Partners in Bullying Prevention Steering Committee. In addition to 

holding a summit in August 2010, the Steering Committee participated in a White Housesponsored Conference on Bullying, and launched StopBullying.gov, a website that provides 

information on preventing bullying.146 ED also works with the Departments of Labor, Health 

and Human Services, Housing and Urban Development, and the Office of National Drug 

Control Policy, as part of the National Forum on Youth Violence Prevention, which supports 

the creation of youth-violence prevention initiatives in six communities in the United 

States.147

The Department of Education’s Civil Rights Complaint Processing System

OCR enforces Title VI of the Civil Rights Act of 1964, Title IX of the Education 

Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination 

 

144 The Commission submitted interrogatories and document requests to ED on March 18, 2011. In response to 

these requests, ED provided data on complaints received through March 21, 2011.

145 See U.S. Department of Education Response to the U.S. Commission on Civil Rights‘ Interrogatories and 

Document Requests at 16 (April 18, 2011) [hereinafter ED Response]. OCR defines ―harassment‖ to ―include 

peer-to-peer harassment, peer-to-peer bullying, and peer-to-peer violence, as well as incidents of harassment, 

bullying, and violence by school or school-district staff or by related third parties.‖ Id. OCR has received 

38,974 total complaints during that period. See id. at 8.

146 Id.

147 Id. at 27.

T
Federal Enforcement Efforts: The U.S. Department of Education 29

Act of 1975, Title II of the Americans with Disabilities Act of 1990, and the Boy Scouts of 

America Equal Access Act. 

Titles VI and IX, Section 504, and the Age Discrimination Act grant OCR jurisdiction over 

institutions that receive federal financial assistance from ED, as well as other institutions for 

which other federal agencies have delegated authority to OCR.148 Title II grants OCR 

jurisdiction over public elementary and secondary education systems and institutions, public 

institutions of higher education and vocational education (other than schools of medicine, 

dentistry, nursing, and other health-related schools), and public libraries, even if these 

institutions do not receive federal financial assistance.149 The Boy Scouts Act grants OCR 

jurisdiction over public elementary schools, public secondary schools, local educational 

agencies, and state educational agencies that receive funds through ED.

150

Evaluation of Complaints

OCR generally uses three factors to evaluate whether a complaint will be investigated. In 

order for a complaint to be investigated it must:

 Allege a violation of one or more of the laws that OCR enforces;151

 Be timely filed within 180 calendar days of the alleged discrimination, or be granted 

a request for waiver of the timeliness requirement;152 and

 Contain sufficient details for OCR to infer that a violation may have occurred.153

In addition to these general requirements, OCR may dismiss a complaint after evaluation if 

its allegations have been resolved;154 if the complainant‘s allegations have already been 

 

148 See id.

149 See id.

150 See id.

151 See id.; U.S. Dep‘t of Educ., Office for Civil Rights, OCR Complaint Processing Procedures, 

http://www2.ed.gov/about/offices/list/ocr/complaints-how.html (last visited June 9, 2011) [hereinafter OCR 

CPP].

152 See U.S. Dep‘t of Educ., Office for Civil Rights, OCR Case Processing Manual, §§ 106-07, 

http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html (last visited July 28, 2011) [hereinafter OCR 

CPM]; OCR CPP, supra note 151. If a complaint is not timely filed, OCR will inform the complainant of the 

opportunity to request a waiver.

153 See OCR CPM, supra note 152, § 108; OCR CPP, supra note151. OCR will contact the complainant if it 

requires additional information to process the complaint, and will grant the complainant 20 calendar days to 

respond to its request. See OCR CPM, supra note 152, § 108.
30 Peer-to-Peer Violence and Bullying 

investigated by another federal, state, or local civil rights agency or through a school‘s 

internal grievance procedures, including due process proceedings;155 if its allegations against 

the school are already being addressed in state or federal court;156 if the allegations are 

preempted by federal courts, the U.S. Secretary of Education, ED‘s Civil Rights Reviewing 

Authority, or OCR policy determinations;

157 or if OCR is unable to complete the 

investigation due to difficulty contacting the complainant or lack of cooperation from the 

complainant or injured party.158 OCR may also close a complaint if the same allegations have 

been filed against the same school by someone other than the complainant.159

Investigation of Complaints

Once OCR opens a complaint for investigation, it issues letters of notification to the 

complainant and to the complainant‘s school.160 During the investigation, OCR serves as a 

neutral fact finder, evaluating whether there is sufficient evidence that the school has acted in 

noncompliance with its legal obligations.161 An OCR investigation may include interviewing 

witnesses, conducting site visits, and reviewing documentary evidence.162

Early Complaint Resolution

OCR also has an Early Complaint Resolution (ECR) process designed to facilitate voluntary 

resolution of disputes as soon as an investigation is opened. Though the agency encourages 

parties to utilize ECR early in the investigation, ECR may take place at any time during the 

investigative process.163 Both parties must agree to participate and the details of the ECR, 

 

154 See OCR CPM, supra note 152, § 110.

155 See id. If a complaint is still pending before another forum, the forum‘s resolution process must conform to 

certain procedural standards before OCR will close a complaint. OCR will only close a complaint if it believes 

that there will be a ―comparable resolution process under comparable legal standards.‖ See id.

156 See id.

157 See id.; OCR CPP, supra note 151.

158 See OCR CPM, supra note 152, § 110; OCR CPP, supra note 151.

159 See OCR CPM, supra note 152, § 110.

160 See id. § 109.

161 See OCR CPP, supra note 151.

162 See id.

163 See OCR CPM, supra note 152.
Federal Enforcement Efforts: The U.S. Department of Education 31

including any records related to the process, are confidential.164 If the ECR is successful, the 

parties sign a statement indicating that the allegation has been resolved.165 OCR will then 

notify the parties in writing of the resolution.166 In the event that the ECR is unsuccessful, 

OCR will proceed with its investigation.167 Although OCR does not monitor agreements 

reached between parties in ECR, the complainant may file another complaint with OCR if the 

school does not comply with the terms of the agreement.168

Resolution of Complaints

If, after conducting its investigation, OCR determines that there is insufficient

evidence to determine that the school violated its legal obligations, OCR will issue a Letter of 

Finding(s) to the parties, which includes: 

 A description of the issues raised by the complaint;

 A description of OCR‘s jurisdiction over the complaint; and

 A discussion of the relevant legal standard and factual analysis.169

If OCR determines that a preponderance of evidence supports a determination that the school 

failed to comply with its legal obligations, OCR will attempt to negotiate a Voluntary 

Resolution Agreement with the school.170 A Voluntary Resolution Agreement is a written 

agreement with the school that describes the remedial actions that the school agrees to take to 

resolve its noncompliance.171 OCR subsequently monitors the school‘s compliance with the 

agreement.

172

If the school does not immediately agree to negotiate a Voluntary Resolution Agreement, 

OCR gives the school 30 days to state its intent to resolve its noncompliance voluntarily.

173 If 

 

164 See id. §§ 202-03; OCR CPP, supra note 151.

165 See OCR CPM, supra note 152, § 204.

166 See id.

167 See id. § 205.

168 See id. § 204(a); OCR CPP, supra note 151.

169 See OCR CPM, supra note 152, § 303(a).

170 See id. § 303(b); OCR CPP, supra note 151.

171 See OCR CPM, supra note 152, § 304; OCR CPP, supra note 151.

172 See OCR CPM, supra note 152, § 307; OCR CPP, supra note 151.

173 See OCR CPM, supra note 152, § 303(b); OCR CPP, supra note 151.
32 Peer-to-Peer Violence and Bullying 

the school fails to so notify OCR, then OCR will issue a Letter of Finding(s) to the parties

explaining OCR‘s legal and factual basis for any finding of noncompliance.

174 Likewise, if 

negotiations reach an impasse, OCR will issue its Letter of Finding(s) within 10 days of the 

impasse, unless the parties reach a resolution agreement during that time.175

Initiating Enforcement Actions

If the school persists in its refusal to voluntarily resolve its noncompliance, OCR issues a 

Letter of Impending Enforcement Action.176 If the school still refuses to negotiate an 

agreement, OCR may suspend, terminate, or refuse to grant federal financial assistance to the 

school through administrative proceedings, or it may refer the case to DOJ for court 

proceedings.

177

OCR Complaint Processing System: Statistical Data by Calendar Year

OCR receives thousands of complaints each year.

Total number of complaints received by OCR, by year:178

2005 2006 2007 2008 2009 2010 2011

5,671 5,771 5,963 6,242 6,637 7,043 1,647

OCR‘s complaint tracking system does not perfectly align with the inquiry of this report.

OCR tracks complaints related to ―harassment,‖ which it defines to include both peer-to-peer 

harassment as well as harassment of students by staff and third parties.

179 As a result, no 

mechanism currently exists for isolating data related solely to OCR‘s work on peer-to-peer 

incidents.180 Nevertheless, with this caveat, OCR‘s data provides an indication of the volume 

 

174 See OCR CPM, supra note 152, § 303(b); OCR CPP, supra note 151.

175 See OCR CPM, supra note 152, § 303(b).

176 See id. § 305; OCR CPP, supra note 151.

177 See OCR CPM, supra note 152, Art. IV; OCR CPP, supra note 151.

178 ED Response, supra note 145, at 8. For this and all subsequent tables in this chapter, 2011 data covers 

January 1, 2011 through March 21, 2011.

179 Id. at 16. More specifically, as discussed supra note 145, OCR states that their ―harassment‖ category 

―includes peer-to-peer harassment, peer-to-peer bullying, and peer-to-peer violence, as well as incidents of 

harassment, bullying, and violence by school or school-district staff or by related third parties.‖ Id.

180 ―Harassment‖ within OCR‘s jurisdiction covers peer-to-peer bullying and other violence ―based on race, 

color, national origin, sex, or disability [that] is sufficiently serious that it creates a hostile environment and ... 

is encouraged, tolerated, inadequately addressed, or ignored by school employees.‖ Id. at 5.
Federal Enforcement Efforts: The U.S. Department of Education 33

of harassment-related complaints that OCR receives compared to its entire complaint 

workload, as well as a comparison of the quantity of complaints filed by protected class.

Total number of harassment complaints received by OCR, by year:181

2005 2006 2007 2008 2009 2010 2011

523 527 610 790 774 1,016 193

Race/National Origin

Of those complaints received generally, the following represent complaints related to race or 

national origin by year:182

Calendar Year 2005 2006 2007 2008 2009 2010 2011

Total Number of Complaints 

Received

2,229 2,251 2,278 1,772 1,919 2,013 346

Black, Not Hispanic 1,006 994 1,076 1,089 1,089 1,197 202

Hispanic 253 255 231 202 233 262 51

Asian or Pacific Islander 79 82 87 74 90 89 8

American Indian or Alaskan 

Native

45 40 44 56 33 42 7

All of the Above/Class 

Action

45 54 40 52 130 36 8

Other/Unknown 945 993 940 216 269 332 67

Minority White 67 63 72 53 37 41 5

Non-Minority White 114 117 142 83 77 70 11

Of those complaints based on harassment, the following represent complaints related to race 

or national origin by year:183

Calendar Year 2005 2006 2007 2008 2009 2010 2011

Total Number of Complaints 

Received

232 231 255 339 361 438 86

Black, Not Hispanic 156 155 173 214 221 273 54

Hispanic 33 31 31 37 43 49 10

Asian or Pacific Islander 16 13 9 21 16 23 2

American Indian or Alaskan 

Native

10 9 7 15 10 15 3

All of the Above/Class Action 2 2 1 3 1 2 3

 

181 Id. at 16.

182 Id. at 8. ED notes, ―Please note that the sum of the subcategories may not equal the total number of 

complaints received, because complaints alleging discrimination on the basis of more than one racial category 

are included in each subcategory.‖ Id.

183 Id. at 19.
34 Peer-to-Peer Violence and Bullying 

Other/Unknown 0 0 1 26 47 57 12

Minority White 10 10 16 11 9 7 1

Non-Minority White 11 13 19 17 14 14 2

Sex

Of those complaints received generally, the following represent complaints related to sex, by 

year:184

Calendar Year 2005 2006 2007 2008 2009 2010 2011

Number of 

Complaints 

Received

 651 659 732 762 824 936 282

Of those complaints based on harassment, the following represent complaints related to sex

by year:185

Calendar Year 2005 2006 2007 2008 2009 2010 2011

Number of 

Complaints Received

150 153 184 231 220 304 54

Disability

Of those complaints received generally, the following represent complaints related to 

disability:186

Calendar Year 2005 2006 2007 2008 2009 2010 2011

Number of 

Complaints Received

3,447 3,543 3,659 3,847 3,913 4,164 731

Of those complaints based on harassment, the following represent complaints related to 

disability by year:

187

Calendar Year 2005 2006 2007 2008 2009 2010 2011

Number of 

Complaints Received

196 193 233 318 284 399 79

 

184 Id. at 9. 

185 Id. at 20.

186 Id. at 9.

187 Id. at 20.
Federal Enforcement Efforts: The U.S. Department of Education 35

Sexual Orientation/Gender Identity & Religion

ED has not historically tracked complaints alleging discrimination based solely on sexual 

orientation or gender identity, or based on religion. 

Because ED does not have jurisdiction to address complaints of discrimination based solely 

on sexual orientation or gender identity, it has never tracked complaints alleging 

discrimination or harassment on that basis.188 When ED has received complaints based solely 

on sexual orientation or gender identity, those complaints have been closed for lack of 

jurisdiction without ever being coded as ―harassment.‖189 As a result, there is no mechanism 

for determining how many such complaints OCR has received.190 Where ED has processed 

complaints based on sexual harassment or gender-based harassment of LGBT students, those 

complaints have been tracked as sex-based harassment cases, without distinguishing whether 

the student identifies as LGBT.

Likewise, because ED does not have jurisdiction to address complaints of discrimination 

based solely on religion, it has never tracked complaints alleging discrimination or 

harassment on that basis either.191 When ED receives such complaints, it closes those

complaints for lack of jurisdiction without ever coding them for ―harassment.‖192 As with 

harassment based on sexual orientation, there is no means for tracking how many complaints 

ED has received based solely on religion.

Beginning on October 1, 2010, ED began coding complaints based on ―shared ancestry or 

ethnic characteristics.‖193 ED has coded 12 complaints alleging discrimination generally

based on shared ancestry or ethnic characteristics.194 Of those, 5 complaints were coded as 

 

188 See id. at 15, 25. For further discussion of ED‘s jurisdiction to address harassment of actual or perceived 

LGBT students, please see infra Chapter 5.

189 See id. at 15.

190 See id.

191 See id. at 14, 23-24. For further discussion of ED‘s jurisdiction to address harassment of members of 

religious groups, please see infra Chapter 5.

192 See id. at 15.

193 See id. at 14. ED has retroactively coded some open cases that may have been received prior to October 1, 

2010. Not all cases, however, were retroactively coded. See id.

194 Id. at 14.
36 Peer-to-Peer Violence and Bullying 

racial harassment.

195 Prior to October 1, 2010, when ED processed complaints based on 

shared ancestry or ethnic characteristics of students that belonged to a religious group, those 

complaints were tracked as race-based harassment cases, without any reference to religion.196

While the data collected by OCR does not distinguish between staff-to-student and studentto-student (peer-to-peer) harassment, the Commission was able to extract a small sample of 

strictly student-to-student harassment for analysis. We obtained copies of all OCR voluntary 

resolution agreements (and accompanying Letters of Finding) related to harassment issued 

between 2005 and March 2011. From this set of 292 agreements, we culled 138 related only 

to peer-to-peer harassment in K-12 schools.

Of the 138 resolution agreements, the following represents the percentage that involved 

allegations of harassment based on race, national origin, disability, and sex:

Figure 3.1

Percent of Resolution Agreements Involving Peer-to-Peer Harassment in Elementary and Secondary 

Schools, 2005 to March 21, 2011, by the Primary Civil Rights Basis.

Source: Data compiled and analyzed by U.S. Commission on Civil Rights from resolution agreements and associated 

documents provided by the U.S. Department of Education.

 

195 Id. at 23-24.

196 See id. at 14.

Disability

24.6

National 

Origin

3.6

Race

42.0

Sex

29.7
Federal Enforcement Efforts: The U.S. Department of Education 37

The following represents the number of resolution agreements related to peer-to-peer

harassment per year, from 2005 to 2010:

Figure 3.2

Number of Resolution Agreements Involving Peer-to-Peer Harassment in Elementary and 

Secondary Schools by Year, 2005 to 2010.

1

1The U.S. Department of Education also negotiated 11 resolution agreements in January to March 2011. They 

are not included in the figure because they represent only part of the year.

Source: Data compiled and analyzed by U.S. Commission on Civil Rights from resolution agreements and 

associated documents provided by the U.S. Department of Education.

7

13 14

28

36

29

0

5

10

15

20

25

30

35

40

2005 2006 2007 2008 2009 2010

Number of Resolution Agreements

Year
38 Peer-to-Peer Violence and Bullying 

The following represents the number of resolution agreements by state, from 2005 to March 

2011:

Table 3.1

Number of Resolution Agreements Involving Peer-to-Peer Harassment in Elementary and 

Secondary Schools by State (Including the District of Columbia), 2005 to March 21, 2011.

State Number State Number State Number

California 18 Maryland 2 New 

Hampshire

1

Missouri 17 Michigan 2 New 

Mexico

1

Illinois 9 Minnesota 2 Rhode 

Island

1

Georgia 7 Mississippi 2 Vermont 1

Colorado 6 North 

Carolina

2 Washington 1

Ohio 6 Oregon 2 West 

Virginia

1

Oklahoma 6 South 

Dakota

2 Arkansas 0

Texas 6 Tennessee 2 Delaware 0

Pennsylvania 5 Utah 2 Indiana 0

Arizona 4 Alaska 1 Iowa 0

Connecticut 4 District of 

Columbia

1 Nebraska 0

Kansas 4 Florida 1 New Jersey 0

Massachusetts 4 Hawaii 1 North 

Dakota

0

Kentucky 3 Idaho 1 South 

Carolina

0

New York 3 Maine 1 Virginia 0

Alabama 2 Montana 1 Wisconsin 0

Louisiana 2 Nevada 1 Wyoming 0

Source: Data compiled and analyzed by U.S. Commission on Civil Rights from resolution agreements and 

associated documents provided by the U.S. Department of Education.
Federal Enforcement Efforts: The U.S. Department of Justice 39

Chapter 4. FEDERAL ENFORCEMENT EFFORTS: THE 

U.S. DEPARTMENT OF JUSTICE

he Department of Justice enforces federal statutes that prohibit discrimination in 

public K-12 schools. Through the Educational Opportunities Section (EOS) of its 

Civil Rights Division, the Department has opened more than 300 inquiries into 

complaints of discrimination and harassment from 2001 to April 18, 2011.

197 Beyond 

responding to complaints, EOS has engaged in a number of activities to address what it has 

termed a ―bullying pandemic,‖ including participating in an inter-agency taskforce to develop 

a federal response to bullying in schools, participating in the planning of national bullying 

summits and a youth summit on a variety of issues facing the LGBT community, including 

bullying, and conducting community outreach to educate groups on EOS‘s jurisdiction and 

possible collaboration with advocacy groups to assist students who have been subjected to 

harassment in their schools.198

Educational Opportunities Section Investigation Process

Generally, EOS enforces laws including Title IV of the Civil Rights Act of 1964, the Equal 

Educational Opportunities Act of 1974, and Titles II and III of the Americans with 

Disabilities Act. EOS may also initiate enforcement activities upon receiving a referral from 

other agencies to enforce Title VI of the Civil Rights Act of 1964, Title IX of the Education 

Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Individuals 

with Disabilities Education Act. Further, EOS may intervene in private litigation that alleges 

violations of the Equal Protection Clause or relevant education-related antidiscrimination 

statutes as listed above, as well as participate in such litigation as amicus curiae.199 EOS

receives complaints by mail, email, telephone, and in person, and it also monitors incidents 

 

197 U.S. Department of Justice Response to the U.S. Commission on Civil Rights‘ Interrogatories and Document 

Requests at 1 (April 18, 2011) [hereinafter DOJ Response]. The Commission submitted interrogatories and 

document requests to DOJ on March 18, 2011. The DOJ responded to these requests on April 18, 2011. The 

DOJ provided data on complaints received through the date of its response.

198 Id. at 2.

199 Id. at 1.

T
40 Federal Enforcement Efforts: The U.S. Department of Justice

of harassment through media and other reports. ―After an initial inquiry into a complaint, 

EOS will determine, based on the information available and subject to resource constraints, 

whether to open an investigation.‖200 EOS reports that it has not received a referral from 

ED‘s Office of Civil Rights since at least 2001.201

Available Complaint Information by Calendar Year

Because of its different jurisdictional mandates and complaint/referral mechanisms, DOJ 

handles far fewer peer-to-peer harassment matters per year than ED. The below data 

represents those complaints and referrals which resulted in DOJ opening an investigation, as 

described above. Unlike ED‘s data discussed above, DOJ‘s data tracks back to 2001 and 

attempts to isolate inquiries involving only peer-to-peer harassment.202

Total EOS opened inquiries:203

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

26 22 23 38 29 34 51 29 38 26 6

Total EOS opened inquiries related to peer-to-peer harassment, where such violence may be 

attributable to the students‘ race, national origin, religion, disability, or sex:

204

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

4 8 4 14 13 14 33 14 14 5 3

Race/National Origin

Of those complaints received generally, the following represent opened inquiries related to 

race or national origin by year:205

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

10 13 11 22 13 14 21 17 23 19 3

 

200 Id. at 5.

201 Id.

202 Only DOJ‘s data regarding peer-to-peer harassment cases are shown here.

203 DOJ Response, supra note 197, at 6. These figures do not include complaints raised in ongoing 

desegregation cases or cases opened prior to 2000.

204 Id. at 8. Please note that, like OCR, EOS jurisdiction only covers peer-to-peer bullying and other violence 

that meets the legal definition of harassment. The data reported under ―sex‖ can include sexual harassment of 

LGBT students and harassment of LGBT students for failure to conform to gender stereotypes. 

205 Id. at 6. Where complaints involved allegations of discrimination based on membership in more than one 

protected class, the complaints are listed in each relevant category. Id. at 2.
41 Peer-to-Peer Violence and Bullying

Of those complaints received based on peer-to-peer harassment, the following represent 

opened inquiries related to race or national origin by year:206

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

2 5 2 6 3 2 13 9 8 4 1

Sex

Of those complaints received generally, the following represent opened inquiries related to 

sex by year:207

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

7

(2 

SH)

4

(2 

SH)

2

(1 

SH)

6

(4 

SH)

1

(1 

SH)

3

(1 

SH)

5

(4 

SH)

3

(1 

SH)

8

(3 

SH)

2

(1 

SH)

2

(1

SH)

Of those complaints received based on peer-to-peer harassment, the following represent 

opened inquiries related to sex by year:208

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

2 2 1 3 1 1 5 3 4 1 2

Disability

Of those complaints received generally, the following represent opened inquiries related to 

disability by year:209

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

9 4 3 0 2 4 7 0 5 5 2

EOS did not track peer-to-peer violence based on disability prior to March 2011.210

 

206 Id. at 9.

207 Id. at 7. The figures in this chart reflect inquiries where such information was available regarding the nature 

of the complaint; EOS does not track its complaints by the specific gender of the students involved or the 

specific nature of the sex-based complaint. Where ascertainable, sexual harassment complaints are denoted 

―SH.‖

208 Id. at 9.

209 Id. at 6.

210 Id. at 9.
42 Federal Enforcement Efforts: The U.S. Department of Justice

Religion

EOS reports that it tracks complaints related to religion-based harassment separately from 

harassment based on shared ancestry or ethnic characteristics (i.e., national origin) under 

Title IV.

211

Of those complaints received generally, the following represent opened inquiries related to 

religion by year:

212

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

1 3 8 13 14 15 24 13 4 0 0

Of those complaints received based on peer-to-peer harassment, the following represent 

opened inquiries related to religion by year:

213

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

1 2 3 8 10 11 18 5 3 0 0

Sexual Orientation/Gender Identity

Although EOS does not maintain information on the sexual orientation and gender identity of 

its complainants, it has opened inquiries into sex-based discrimination based on sex 

stereotypes. The Section reports that it opened four such inquiries in 2009, two in 2010, and 

one to date in 2011.214

 

211 Id. at 7-8, 10-11. 

212 U.S. Dep‘t of Justice, Supplemental Response Pursuant to Affected Agency Review (July 26, 2011).

213 DOJ Response, supra note 197, at 7-8, 10-11.

214 Id. at 8.
43 The U.S. Department of Education’s Dear Colleague Letter

Chapter 5. THE U.S. DEPARTMENT OF EDUCATION’S 

DEAR COLLEAGUE LETTER

he U.S. Department of Education issues Dear Colleague Letters as policy guidance

under the laws that it enforces. Generally, a Dear Colleague Letter offers guidance 

to help schools fully understand their legal responsibilities and appreciate the extent 

of their lawful authority.215 It is ED‘s position that, ―when school officials understand their 

legal duties and the extent of their authority, they are in the best position to prevent peer 

harassment and to respond effectively when it occurs.‖216 To date, ED has released seven 

Dear Colleague Letters regarding harassment and three other guidance documents regarding 

sexual harassment and racial harassment.

217 The guidance documents range in topic, 

discussing harassment and bullying generally,218 sexual violence,219 sexual harassment,220

disability harassment,221 racial harassment,222 harassment of Muslim and Arab students,223

religion-based harassment,224 and First Amendment rights.225 On October 26, 2010, ED 

issued a Dear Colleague Letter to schools that provided guidance regarding their obligations 

 

215 See Ali Statement, supra note 6, at 5.

216 See id. at 7.

217 See ED Response, supra note 145, at 5-6.

218 See Harassment/Bullying DCL, supra note 40.

219 See Sexual Violence DCL, supra note 36.

220 See Stephanie Monroe, Asst. Sec‘y for Civil Rights, U.S. Dep‘t of Educ., Dear Colleague Letter: Sexual 

Harassment Issues, Jan. 25, 2006, available at http://www2.ed.gov/about/offices/list/ocr/letters/sexhar2006.html (last visited May 11, 2011) [hereinafter Sexual Harassment DCL]; see also SEXUAL HARASSMENT:

IT‘S NOT ACADEMIC, supra note 35; OFFICE FOR CIVIL RIGHTS, U.S. DEP‘T OF EDUC., REVISED SEXUAL 

HARASSMENT GUIDANCE: HARASSMENT OF STUDENTS BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD 

PARTIES (Jan. 2001), available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf (last visited Apr. 

28, 2011) [hereinafter REVISED SEXUAL HARASSMENT GUIDANCE].

221 See Disability DCL, supra note 63.

222 See Racial Incidents and Harassment Against Students at Educational Institutions, 59 Fed. Reg. 11,448 (Mar. 

10, 2004), available at http://www2.ed.gov/about/offices/list/ocr/docs/race394.html (last visited May 11, 2011) 

[hereinafter Racial Incidents and Harassment Guidance].

223 See Rod Paige, Sec‘y of Educ., U.S. Dep‘t of Educ., Dear Colleague Letter: Harassment Against Muslim and 

Arab Students, Sept. 19, 2001, available at http://www2.ed.gov/about/offices/list/ocr/docs/arabletter.html (last 

visited May 2, 2011) [hereinafter Muslim/Arab DCL].

224 See Kenneth L. Marcus, Dep. Asst. Sec‘y for Enforcement, U.S. Dep‘t of Educ., Dear Colleague Letter: Title 

VI and Title IX Religious Discrimination in Schools and Colleges, Sept. 13, 2004, available at

http://www2.ed.gov/about/offices/list/ocr/religious-rights2004.html (last visited May 11, 2011) [hereinafter 

Religion DCL].

225 See Gerald A. Reynolds, Asst. Sec‘y for Civil Rights, U.S. Dep‘t of Educ., Dear Colleague Letter: First 

Amendment, July 28, 2003, available at http://www2.ed.gov/about/offices/list/ocr/firstamend.html (last visited 

May 11, 2011) [hereinafter First Amendment DCL].

T
44 The U.S. Department of Education’s Dear Colleague Letter

with respect to bullying and harassment.226 In addition to outlining schools‘ general 

obligations under federal civil rights laws, the Letter provided a series of hypotheticals and 

advised schools on how best to respond to them. According to Assistant Secretary for Civil 

Rights Russlynn Ali, while the legal standards discussed in the Letter were not new,227 the 

Letter was the ―first time ... that Department of Education has put forth such comprehensive 

guidance on bullying and harassment across all of its statutes. It is the first time that [they] 

have presented it in these very real-life hypothetical ways.‖228

The Letter was intended as a reminder to schools ―that some student misconduct that falls 

under a school‘s anti-bullying policy also may trigger responsibilities under one or more of 

the federal antidiscrimination laws enforced by the Department‘s Office for Civil Rights.‖229

ED explained that OCR enforces Title VI of the Civil Rights Act of 1964, Title IX of the 

Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and Title II 

of the Americans with Disabilities Act of 1990.230 It noted, however, that ―[w]hile this letter 

concerns [schools‘] legal obligations under the laws enforced by OCR, other federal, state, 

and local laws impose additional obligations on schools.‖231 ED said that ―harassing 

conduct‖ can come in many forms, including verbal acts and name-calling, graphic and 

written statements (including statements via electronic media such as mobile phones or the 

 

226 ED worked closely with DOJ on developing the Dear Colleague Letter. See Samuels Statement, supra note 

61, at 6.

227 See, e.g., Briefing Transcript, supra note 7, at 61:8-13 (Ali Testimony) (―The letter was not, as some critics 

may imply, a break with or an expansion of the Office for Civil Rights‘ previous interpretation of Title IX, and 

it was consistent with the cases that had come out between the 2001 guidance and what happened in 2010‖); 

Marcus Statement, supra note 103, at 18 app. A (―[The Dear Colleague Letter] is neither new nor a bullying 

policy. Rather, it is a repackaging of longstanding OCR interpretations of harassment law.‖); Goss Graves 

Statement, supra note 37, at 8-9 (―The letter was not, as some critics have implied, a break with or an expansion 

of OCR‘s previous interpretation of Title IX.‖).

228 Transcript, Secretary‘s Press Conference Call on Bullying and Harassment Guidance, at 18, Oct. 26, 2010, 

available at http://www2.ed.gov/news/av/audio/2010/10/10262010.doc (last visited May 2, 2011) [hereinafter 

Conference Call Transcript].

229 Harassment/Bullying DCL, supra note 40, at 1; see also Conference Call Transcript, supra note 228, at 5 

(Statement of Russlynn Ali) (―Schools and districts know their community best and to help them we are 

ensuring today both students and parents are aware of their rights and that schools, districts, colleges and 

universities are aware of their responsibilities under the federal civil rights laws.‖); id. at 8 (Statement of 

Russlynn Ali) (―The guidelines are intended to make clear for schools, colleges, universities and school districts 

across the country what their obligations are when they know or should‘ve known about harassing our [sic] 

bullying happening in their schools and what to do about it. They are charged with stopping it, with fixing the 

problem and with preventing it so that it never happens again and students have a safe place to learn.‖).

230 See Harassment/Bullying DCL, supra note 40, at 1.

231 Id. at 2.
Peer-to-Peer Violence and Bullying 45

Internet), and other conduct that may be physically threatening, harmful, or humiliating.232

Where the harassment is based on race, color, national origin, sex, or disability, and where 

such conduct creates a ―hostile environment‖ —i.e., ―when the conduct is sufficiently severe, 

pervasive, or persistent so as to interfere with or limit a student‘s ability to participate in or 

benefit from the services, activities, or opportunities offered by a school‖ —it triggers the 

civil rights laws enforced by OCR.233

The Letter further said that a school must address harassment incidents ―about which it 

knows or reasonably should have known.‖234 A school has such notice where ―a responsible 

employee knew, or in the exercise of reasonable care should have known, about the 

harassment.‖235 ED advised that, ―[w]hen responding to harassment, a school must take 

immediate and appropriate action to investigate or otherwise determine what occurred.‖236

The steps of this investigation will differ depending on the circumstances.

237

According to ED, where the investigation shows that unlawful harassment has taken place, ―a 

school must take prompt and effective steps reasonably calculated to end the harassment, 

eliminate any hostile environment and its effects, and prevent the harassment from 

recurring.‖238 Depending on the circumstances of the harassment, responses can include: 

―separating the accused harasser and the target‖; ―providing counseling for the target and/or 

harasser‖; ―taking disciplinary actions against the harasser‖; providing ―training or other 

interventions ... for the larger school community‖; providing ―additional services to the 

student who was harassed in order to address the effects of the harassment‖; ―issu[ing] new 

policies against harassment and new procedures by which students, parents, and employees 

may report allegations of harassment (or wide dissemination of existing policies and 

procedures)‖; or ―wide distribution of the contact information for the district‘s Title IX and 

Section 504/Title II coordinators.‖

239 Finally, the Letter advised that the school should take 

 

232 See id.

233 See id.

234 Id.

235 Id. at 2 n.9.

236 Id. at 2.

237 See id.

238 Id. at 2-3.

239 Id. at 3.
46 The U.S. Department of Education’s Dear Colleague Letter

steps to prevent harassment or retaliation against persons who made the initial complaint or 

assisted the school‘s investigation: ―[a]t a minimum, the school‘s responsibilities include 

making sure that the harassed students and their families know how to report any subsequent 

problems, conducting follow-up inquiries to see if there have been any new incidents or any 

instances of retaliation, and responding promptly and appropriately to address continuing or 

new problems.‖240

When responding to incidents, the Letter advised that obligations under federal civil rights 

laws are triggered by the ―nature of the conduct itself,‖ rather than by the ―label used to 

describe the incident (e.g., bullying, hazing, teasing) ....‖241 Furthermore, when these laws 

are implicated, the Letter encouraged schools to ―look beyond simply disciplining the 

perpetrators [because] the unique effects of discriminatory harassment may demand a 

different response than would other types of bullying.‖242

The Dear Colleague Letter then provided five hypotheticals to illustrate incidents of race, 

color, or national origin harassment, sexual harassment, gender-based harassment, and 

disability harassment. After each hypothetical, ED described how the incident would trigger 

obligations under federal civil rights laws, where the hypothetical school erred in its 

response, and how the school should have responded.243

Of note, one of the hypotheticals involved harassment of Jewish students; the Letter said, 

―[H]arassment against students who are members of any religious group triggers a school‘s 

Title VI responsibilities when the harassment is based on the group‘s actual or perceived 

shared ancestry or ethnic characteristics, rather than solely on its members‘ religious 

practices.‖244 Another hypothetical involved a student who was gay and who did not conform 

 

240 Id.

241 Id.

242 Id. at 3-4.

243 See generally id. at 4-9.

244 Id. at 5-6; see also Conference Call Transcript, supra note 228, at 17 (Statement of Russlynn Ali) 

(―[A]lthough the department does not hold jurisdiction over religion, much of the anti-religious, if you will,

bullying that we‘re seeing across the country is not because students are Jewish or because students are Muslim 

or any details about their faith or their worship. It is about the harasser perceiving them as being members of a 

special ethnic group or a national origin. It is there where we will vigorously enforce the civil rights laws to 
Peer-to-Peer Violence and Bullying 47

to masculine stereotypes; the Letter reasoned, ―Although Title IX does not prohibit 

discrimination based solely on sexual orientation, Title IX does protect all students, including 

lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination.‖245 In the 

press release issued by ED to announce the Dear Colleague Letter, ED explained that this 

guidance ―makes clear that while current laws enforced by the department 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.‖246

In closing the Letter, Assistant Secretary Ali wrote, ―I encourage you to reevaluate the 

policies and practices your school uses to address bullying and harassment to ensure that they 

comply with the mandates of the federal civil rights laws.‖247

 

protect those students from a harassing environment.‖). For further discussion of the Dear Colleague Letter‘s 

analysis of Title VI implications for harassment of religious groups, please see infra Chapter 6.

245 Harassment/Bullying DCL, supra note 40, at 7-8. For further discussion of the Dear Colleague Letter‘s 

analysis of Title IX implications for harassment of actual or perceived LGBT students and students that do not 

conform to gender stereotypes, please see infra Chapter 6.

246 Press Release, U.S. Dep‘t of Educ., Guidance Targeting Harassment Outlines Local and Federal 

Responsibility, Oct. 26, 2010, available at http://www.ed.gov/news/press-releases/guidance-targetingharassment-outlines-local-and-federal-responsibility (last visited May 3, 2011).

247 Harassment/Bullying DCL, supra note 40, at 9.
Jurisdiction: Peer-to-Peer Violence Related to LGBT Status and Religion 48

Chapter 6. JURISDICTION: PEER-TO-PEER VIOLENCE 

RELATED TO LGBT STATUS AND 

RELIGION

he Departments of Education and Justice have been both lauded and criticized for 

addressing peer-to-peer student violence related to LGBT youth and members of 

religious groups.248 Although Title IX grants jurisdiction to ED and DOJ to enforce 

prohibitions against sex discrimination, it does not mention discrimination based on sexual 

orientation or gender identity; and although Title VI grants jurisdiction to ED and DOJ to 

enforce prohibitions against discrimination based on race, color, or national origin, it does 

not mention discrimination based on religion. Critics have asserted that ED and DOJ‘s legal 

interpretations amount to an attempt to ―bootstrap‖ unprotected groups into Titles IX and VI 

protection.249 This chapter will address each issue in turn.

Title IX and Peer-to-Peer Violence Related to Sexual Orientation or 

Gender Identity

While Title IX does not prohibit discrimination on the basis of sexual orientation,250 its 

prohibitions against sex discrimination and sexual harassment protect all students, including

 

248 As discussed supra Chapter 5, ED and DOJ reason that Title IX protects all students—including LGBT 

students—from sex discrimination, and that Title VI protects all students—including those belonging to groups 

with a common faith—from discrimination based on ethnicity, national origin, or race. DOJ also addresses 

religion-based discrimination in schools under Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c. ED 

does not enforce this provision.

249 See, e.g., Statement of Roger Clegg, President & Gen. Counsel, Ctr. for Equal Opportunity, at 7, May 13, 

2011, available at

http://www.eusccr.com/6.%20Roger%20Clegg,%20Center%20for%20Equal%20Opportunity.pdf (last visited 

June 22, 2011) [hereinafter Clegg Statement] (―After all,  ̳sex‘ does not mean  ̳sexual orientation,‘ and it 

certainly did not mean that in 1972. That‘s all there is to it. ... [T]hey have concocted a legal argument that says 

the use of  ̳sexual stereotypes‘ is banned by the laws that ban discrimination on the basis of sex, and they are 

using this argument to bootstrap in a ban on sexual orientation.‖); Public Comment of Hans Bader, Senior Att‘y 

& Counsel for Special Projects, Competitive Enter. Inst., at 2, Mar. 22, 2011, available at

http://www.mindingthecampus.com/originals/2011/03/_by_hans_bader_theres.html (last visited Sept. 9, 2011) 

(―The [Dear Colleague Letter] incorrectly equates homophobic harassment with sexual harassment forbidden by 

the sex discrimination law Title IX.‖); Marcus Statement, supra note 103, at 24-25 app. A (discussing OCR‘s 

prior reluctance to address anti-Semitic harassment under Title VI).

250 See, e.g., ED Response, supra note 145, at 24 (―Title IX does not prohibit discrimination based solely on 

sexual orientation; so OCR does not have jurisdiction over complaints alleging discrimination, including 

harassment, based on sexual orientation.‖).

T
Jurisdiction: Peer-to-Peer Violence Related to LGBT Status and Religion 49

those who are LGBT or perceived to be LGBT. Title IX also protects against sex 

discrimination and harassment of students who do not conform to gender stereotypes. Both 

ED and DOJ enforce Title IX in this regard.

In January 2001, ED issued a document titled Revised Sexual Harassment Guidance: 

Harassment of Students by School Employees, Other Students, or Third Parties.

251 While the 

guidance addressed sexual harassment generally, with respect to LGBT students it stated, in 

part:

Although Title IX does not prohibit discrimination on the basis of sexual 

orientation, sexual harassment directed at gay or lesbian students that is 

sufficiently serious to limit or deny a student‘s ability to participate in or 

benefit from the school‘s program constitutes sexual harassment prohibited by 

Title IX under the circumstances described in this guidance.252

The guidance further explained that:

[G]ender-based harassment, which may include acts of verbal, nonverbal, or 

physical aggression, intimidation, or hostility based on sex or sexstereotyping, but not involving conduct of a sexual nature, is also a form of 

sex discrimination to which a school must respond, if it rises to a level that 

denies or limits a student‘s ability to participate in or benefit from the 

educational program.253

ED re-circulated this guidance to schools in January 2006, enclosed with a Dear Colleague 

Letter issued by then-Assistant Secretary for Civil Rights Stephanie Monroe.254

In September 2008, ED again issued guidance on sexual harassment, which addressed sexual 

harassment of LGBT students. In a pamphlet titled Sexual Harassment: It‟s Not Academic, 

ED posed the question, ―Are gay and lesbian students protected from sexual harassment?‖255

 

251 REVISED SEXUAL HARASSMENT GUIDANCE, supra note 220.

252 Id. at 3.

253 Id.

254 See Sexual Harassment DCL, supra note 220 (―Longstanding legal authority establishes that harassment of 

students can be a form of sex discrimination covered by Title IX .... I am enclosing the Revised Sexual 

Harassment Guidance: Harassment of Students By School Employees, Other Students, or Third Parties issued 

by OCR in January 2001.‖). Assistant Secretary Monroe‘s letter addressed sexual harassment issues generally; 

it did not specifically discuss sexual harassment of LGBT students or gender-based harassment.
50 Peer-to-Peer Violence and Bullying

The pamphlet answered:

Title IX prohibits harassing conduct that is of a sexual nature if it is 

unwelcome and denies or limits a student‘s ability to participate in or benefit 

from a school‘s program, regardless of whether the harassment is aimed at gay 

or lesbian students or is perpetrated by individuals of the same or opposite 

sex. Title IX does not address discrimination or other issues related to sexual 

orientation.256

ED once again issued guidance to schools in the Dear Colleague Letter released by Assistant 

Secretary for Civil Rights Russlynn Ali on October 26, 2010.257 In its discussion of genderbased harassment, ED explained:

Title IX prohibits harassment of both male and female students regardless of 

the sex of the harasser—i.e., even if the harasser and target are members of 

the same sex. It also prohibits gender-based harassment, which may include 

acts of verbal, nonverbal, or physical aggression, intimidation, or hostility 

based on sex or sex-stereotyping. Thus, it can be sex discrimination if students 

are harassed either for exhibiting what is perceived as a stereotypical 

characteristic for their sex, or for failing to conform to gender stereotypical 

notions of masculinity or femininity. Title IX also prohibits sexual harassment 

and gender-based harassment of all students, regardless of the actual or 

perceived sexual orientation or gender identity of the harasser or target.258

Further elaborating on Title IX protections of LGBT students, ED stated:

Although Title IX does not prohibit discrimination based solely on sexual 

orientation, Title IX does protect all students, including lesbian, gay, bisexual, 

and transgender (LGBT) students, from sex discrimination. When students are 

subjected to harassment on the basis of their LGBT status, they may also ... 

be subjected to forms of sex discrimination prohibited under Title IX. The fact 

that the harassment includes anti-LGBT comments or is partly based on the 

target‘s actual or perceived sexual orientation does not relieve a school of its 

 

255 SEXUAL HARASSMENT: IT‘S NOT ACADEMIC, supra note 35, at 8. 

256 Id.

257 For further discussion of the Harassment/Bullying Dear Colleague Letter, please see supra Chapter 5.

258 Harassment/Bullying DCL, supra note 40, at 7-8; see also Marcus Statement, supra note 103, at 23-24 app. 

A (―The new OCR policy recognizes this legal development [that courts have interpreted sex discrimination to 

include various forms of sex-stereotyping], which is hardly new, and describes it in terms that are hardly radical 

....‖).
Jurisdiction: Peer-to-Peer Violence Related to LGBT Status and Religion 51

obligation under Title IX to investigate and remedy overlapping sexual 

harassment or gender-based harassment.259

On January 3, 2011, DOJ filed an amicus brief in Pratt v. Indian River Cent. Sch. Dist.260 that

provided a legal argument for this Title IX analysis.

261 Pratt is an ongoing private civil suit, 

filed by a student who alleges that he has been targeted for harassment by classmates and 

school staff because he does not conform to masculine stereotypes and because of his sexual 

orientation; the student asserts that his school violated his rights under Title IX and the Equal 

Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The DOJ 

participated in the case as amicus curiae.

The DOJ based its analysis on two U.S. Supreme Court cases, Price Waterhouse v. 

Hopkins262 and Oncale v. Sundowner Offshore Svcs., Inc.263 Although both cases concerned

allegations of sex discrimination under Title VII of the Civil Rights Act of 1964,

264 which 

prohibits discrimination in the employment context, ―[c]ourts examine Title VII precedent 

when analyzing discrimination  ̳on the basis of sex‘ under Title IX.‖265

 

259 Harassment/Bullying DCL, supra note 40, at 8; see also Marcus Statement, supra note 103, at 23 app. A 

(―[This language] means only that a lesbian student who faces sexist treatment will get the same protections as 

any other girl. This proposition is entirely uncontroversial.‖); Goss Graves Statement, supra note 37, at 11 

(―[N]o federal law prohibits per se LGBT-based bullying or harassment. Although Title IX covers LGBTrelated bullying and harassment when such conduct targets a student‘s failure to conform to sex stereotypes, it 

does not prohibit LGBT bullying and harassment more generally.‖).

260 See Brief of the Unites States as Amicus Curiae, Pratt v. Indian River Cent. Sch. Dist., No. 09-0411 

(N.D.N.Y. Aug. 13, 2010), available at www.justice.gov/crt/about/edu (follow ―Cases‖ hyperlink under 

―Education‖; then follow ―Amicus Memorandum‖ hyperlink under ―Pratt v. Indian River Central School 

District (N.D.N.Y.)‖). The federal district court ultimately agreed with DOJ‘s interpretation of Title IX as 

described in its brief. See Pratt v. Indian River Cent. Sch. Dist., No. 7:09-CV-0411, slip op., 2011 WL 1204804, 

at *11 (N.D.N.Y. Mar. 29, 2011).

261 See also generally Memorandum of Law in Support of the United States‘ Motion to Intervene, J.L. v. 

Mohawk Cent. Sch. Dist., No. 09-943 (N.D.N.Y. Jan. 14, 2010), available at

http://www.justice.gov/crt/about/edu/documents/mohawkmotion.pdf (last visited May 11, 2011) (intervening in 

case regarding gender-stereotype harassment of an openly gay teenager based on jurisdiction under Title IX); 

Stipulation and Settlement Agreement, J.L. v. Mohawk Cent. Sch. Dist., No. 09-943 (N.D.N.Y. Mar. 29, 2010), 

available at http://www.justice.gov/crt/about/edu/documents/mohawksettle.pdf (last visited May 11, 2011); 

Samuels Statement, supra note 61, at 5 (discussing Mohawk case); Complaint in Intervention, Lovins v. 

Pleasant Hill Pub. Sch. Dist., R-III, No. 99-0550 (W.D. Mo. July 20, 2000), available at

http://www.justice.gov/crt/about/edu/documents/lovinscom.php (last visited May 20, 2011); Consent Order, 

Lovins v. Pleasant Hill Pub. Sch. Dist., R-III, No. 99-0550 (W.D. Mo. July 31, 2000), available at

http://www.justice.gov/crt/about/edu/documents/lovinsor.php (last visited May 20, 2011).

262 490 U.S. 228 (1989), superseded by statute on other grounds.

263 523 U.S. 75 (1998).

264 42 U.S.C. § 2000e-2 (2006).

265 Brief of the Unites States as Amicus Curiae, Pratt v. Indian River Cent. Sch. Dist., No. 09-0411, at 7 n.5 

(N.D.N.Y. Aug. 13, 2010), available at www.justice.gov/crt/about/edu (follow ―Cases‖ hyperlink under 
52 Peer-to-Peer Violence and Bullying

Price Waterhouse involved the allegation that an accounting firm subjected a female 

employee to sex discrimination based on evidence that the firm declined to promote her due 

to her nonconformity with feminine stereotypes. A plurality of the Court concluded that, 

―[a]s for the legal relevance of sex stereotyping, we are beyond the day when an employer 

could evaluate employees by assuming or insisting that they matched the stereotype 

associated with their group ....‖266 It reasoned further, ―An employer who objects to 

aggressiveness in women but whose positions require this trait places women in an 

intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a 

job if they do not. Title VII lifts women out of this bind.‖267 Likewise, agreeing with the

plurality in concurrence, Justice O‘Connor noted that ―[t]here has been a strong showing that 

the employer has done exactly what Title VII forbids ....‖268

Oncale involved allegations of male-on-male sexual harassment in the workplace. While 

working on an oil platform, the plaintiff was ―subjected to sex-related, humiliating actions,‖ 

―physically assaulted ... in a sexual manner [and] threatened ... with rape,‖ and ― ̳picked 

[on] ... all the time ...‘ and called ... a name suggesting homosexuality.‖269 The Court found 

that same-sex sexual harassment is cognizable under Title VII. It held, ―[N]othing in Title 

VII necessarily bars a claim of discrimination  ̳because of ... sex‘ merely because the 

plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are 

of the same sex.‖270

In its amicus brief in Pratt, DOJ asserted that harassment based on nonconformity with sex 

stereotypes is a cognizable claim under Title IX and the Equal Protection Clause. To support 

this statement, DOJ cited Price Waterhouse, noting that the Court held that ―harassment 

 

―Education‖; then follow ―Amicus Memorandum‖ hyperlink under ―Pratt v. Indian River Central School 

District (N.D.N.Y.)‖) (citing Davis, 526 U.S. at 631; Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 74 

(1992)).

266 Price Waterhouse, 490 U.S. at 251.

267 Id.

268 Id. at 266 (O‘Connor, J., concurring). Justice O‘Connor‘s agreement with the plurality on this issue means 

that a majority of the Court believed that Title VII forbids discrimination based on sex stereotypes.

269 Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 77 (1998) (citations omitted).

270 Id. at 79. 
Jurisdiction: Peer-to-Peer Violence Related to LGBT Status and Religion 53

based on sex stereotyping constitute[s] discrimination on the basis of sex under Title VII.‖271

The DOJ said further that ―[t]he standards for proving gender-based harassment under Title 

VII that were enunciated [by the Supreme Court] in Oncale are often cited by courts 

reviewing similar claims under Title IX.‖272

The DOJ then listed several district-court cases that have found claims of harassment based 

on nonconformity with sex stereotypes to be cognizable under Title IX:

See, e.g., Doe v. Brimfield Grade Sch., 552 F. Supp. 2d 816, 823 (C.D. Ill. 

2008) (―Discrimination because one‘s behavior does not  ̳conform to 

stereotypical ideas‘ of one‘s gender can amount to actionable discrimination 

 ̳based on sex‘‖); Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219, 226 

(D. Conn. 2006) (―The language set forth in the OCR Guidance and the 

holding in Oncale clearly support the conclusion that a female student, 

subjected to pejorative, female homosexual names by other female students, 

can bring a claim of sexual harassment under Title IX‖); Theno v. Tonganoxie 

Unified Sch. Dist. No. 464, 377 F. Supp. 2d 952, 964-65 (D. Kan. 2005) 

(recognizing that a gender stereotyping claim may be used to establish that 

same-sex harassment is based on sex under Title IX); Montgomery [v. Indep. 

Sch. Dist. No. 709], 109 F. Supp. 2d [1080,] 1090-93 [D. Minn. 2000] (relying 

on Price Waterhouse, Oncale, Davis, and the relationship between Title VII 

and Title IX to hold that the plaintiff had stated a cognizable harassment claim 

for nonconformity with sex stereotypes under Title IX).273

The DOJ next stated that the presence of sexual orientation harassment does not defeat a 

claim of sex stereotyping harassment.274 As the brief explained, ―[B]eing gay does not deny a 

student his right to be free from sex-based discrimination pursuant to Title IX and the Equal 

Protection Clause.‖275 In response to the assertion that the sex stereotyping claim is a means 

of ―somehow trying to  ̳bootstrap protection for sexual orientation‘ into Title IX,‖ DOJ said 

 

271 See Brief of the Unites States as Amicus Curiae, Pratt v. Indian River Cent. Sch. Dist., No. 09-0411, at 7 

(N.D.N.Y. Aug. 13, 2010), available at www.justice.gov/crt/about/edu (follow ―Cases‖ hyperlink under 

―Education‖; then follow ―Amicus Memorandum‖ hyperlink under ―Pratt v. Indian River Central School 

District (N.D.N.Y.)‖) (citing Price Waterhouse, 490 U.S. at 251-52).

272 Id. at 7 n.5 (citing Oncale, 523 U.S. 75; Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 651 (1999); 

Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1091 (D. Minn. 2000)).

273 Id. at 7-8.

274 See id. at 9 (―[H]arassment  ̳based on sexual orientation does not immunize these Defendants from liability 

under Title IX for harassment and discrimination based on sex.‘‖) (quoting Pls.‘ Mem. at 21).

275 Id. at 12 n.9 (citing OFFICE FOR CIVIL RIGHTS, U.S. DEP‘T OF EDUC., REVISED SEXUAL HARASSMENT 

GUIDANCE: HARASSMENT OF STUDENTS BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD PARTIES at 3 

(Jan. 2001); Romer v. Evans, 517 U.S. 620, 633 (1996)).
54 Peer-to-Peer Violence and Bullying

that the U.S. Supreme Court in Oncale ―cautioned against drawing such superficial, 

perfunctory conclusions about sex-based harassment ....‖276 It then quoted Oncale:

―In same sex (as in all) harassment cases, that inquiry requires careful 

consideration of the social context in which particular behavior occurs and is 

experienced by its target. ... The real social impact of workplace behavior 

often depends on a constellation of surrounding circumstances, expectations, 

and relationships which are not fully captured by a simple recitation of the 

words used or the physical acts performed.‖277

As an example of such ―careful consideration,‖ DOJ quoted at length the district court‘s 

decision in Montgomery v. Indep. Sch. Dist. No. 709:

―Plaintiff contends that the students engaged in the offensive conduct at issue 

not only because they believed him to be gay, but also because he did not 

meet their stereotyped expectations of masculinity. The facts alleged in 

plaintiff‘s complaint support this characterization of the students‘ misconduct.

He specifically alleges that some of the students called him  ̳Jessica,‘ a girl‘s 

name, indicating a belief that he exhibited feminine characteristics. Moreover, 

the Court finds important the fact that plaintiff‘s peers began harassing him as 

early as kindergarten. It is highly unlikely that at that tender age plaintiff 

would have developed any solidified sexual preference, or for that matter, that 

he even understood what it meant to be  ̳homosexual‘ or  ̳heterosexual.‘ The 

likelihood that he openly identified himself as gay or that he engaged in any 

homosexual conduct at that age is quite low. It is much more plausible that the 

students began tormenting him based on feminine personality traits that he 

exhibited and the perception that he did not engage in behaviors befitting a 

boy. Plaintiff thus appears to plead facts that would support a claim of 

harassment based on the perception that he did not fit his peers‘ stereotypes of 

masculinity.‖278

Likewise, DOJ also approvingly described the district court‘s interpretation of Oncale in 

Riccio v. New Haven Bd. of Educ. In response to the defendants‘ assertion that a female 

plaintiff did not suffer sexual harassment where her ridicule contained anti-gay slurs, the 

Riccio court stated: 

 

276 Id. at 11.

277 Id. (quoting Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81-82 (1998)).

278 Id. at 11-12 (quoting Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1090 (D. Minn. Aug. 

23, 2000)).
Jurisdiction: Peer-to-Peer Violence Related to LGBT Status and Religion 55

―In Oncale, the plaintiff was a male being harassed physically and verbally by 

other males. The derogatory language directed at Mr. Oncale was homosexual 

in its nature, as in [the plaintiff‘s] case. Despite the language being of a 

homosexual nature in Oncale, the Supreme Court concluded that the 

harassment constituted sexual harassment.‖279

The DOJ concluded, ―Because the case law establishes that a plaintiff can concurrently assert 

claims for sex-based harassment and sexual-orientation-based harassment (even if the latter 

claims are not cognizable under the same laws), [the plaintiff] should be given an opportunity 

to prove that the alleged harassment is based on sex under Title IX and the Equal Protection 

Clause.‖280

Although ED and DOJ enforce Title IX to protect LGBT students where they are sexually 

harassed or harassed based on sex stereotyping, a gap remains in their enforcement: federal 

civil rights law does not protect against harassment based on sexual orientation or gender 

identity.

281 Thus, students are not protected by federal law if they are harassed based solely 

on their sexual orientation or gender identity without accompanying sexual harassment or 

sex-stereotyping.282 Such a dichotomy may create a perverse incentive for alleged 

discriminators to evade Title IX liability by asserting that students‘ harassment is based 

entirely on homophobic animus.283 Advocates have urged Congress to pass legislation to 

 

279 Id. at 10 (quoting Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219, 226 (D. Conn. Dec. 26, 2006)).

280 Id. at 12.

281 See, e.g., Ali Statement, supra note 6, at 4 (―Title IX does not prohibit discrimination based solely on sexual 

orientation.‖).

282 See Byard Statement, supra note 73, at 7 n.18 (―To be sure, LGBT students may be protected by such laws 

when they are victims of otherwise covered action—such as in cases where sexual harassment occurs, and the 

victim of the harassment is a gay student. That protection, however, is not the same as protection against antigay harassment affecting that student.‖); Public Comment of Sen. Al Franken, U.S. Senate, at 3, Apr. 29, 2011, 

available at http://www.eusccr.com/29.%20U.S.%20Sen.%20Al%20Franken.pdf (last visited June 22, 2011) 

[hereinafter Franken Comment] (―[S]ince Title IX can only protect LGBT students from bullying based on 

gender stereotyping, they lack its protection against bullying based on sexual orientation .... Without Title IX 

protections, many victims of LGBT bullying, harassment, and discrimination therefore remain without recourse. 

This is a significant gap in protection for a group of students that currently faces severe harassment and 

discrimination in schools.‖). 

283 See, e.g., Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219, 225 (D. Conn. 2006) (―[Defendant] 

contends that the thrust of the slurs were of a sexual orientation nature and not gender specific. Therefore, 

[Defendant] argues that Andree does not have a claim for sexual harassment because Title IX does not provide a 

remedy for discrimination based on sexual orientation.‖) (citation omitted). It should be noted that the Riccio

court rejected this argument based on the facts of the case.
56 Peer-to-Peer Violence and Bullying

address this issue284 and, to this end, several relevant bills have been introduced in the 112th

Congress. The Student Non-Discrimination Act is designed to address ―the significant gap in 

protection‖ for LGBT students who, under Title IX, ―lack protection against bullying based 

on sexual orientation.‖285 In addition, a more general anti-bullying bill, the Safe Schools 

Improvement Act, enumerates sexual orientation as one of several protected groups.286

Title VI and Peer-to-Peer Violence Related to Religion

Although Title VI does not prohibit discrimination on the basis of religion, it does forbid 

discrimination on the basis of race, color, or national origin. Both ED and DOJ287 have taken 

the position that Title VI prohibits discrimination on the basis of actual or perceived shared 

ancestry or ethnic characteristics, regardless of whether those groups share a common 

faith.288

 

284 See, e.g., Public Comment of Rep. Jared Polis & Rep. Ileana Ros-Lehtinen, U.S. House of Representatives, 

at 2, May 4, 2011, available at

http://www.eusccr.com/30.%20U.S.%20Rep.%20Jared%20Polis%20&%20U.S.%20Rep.%20Ileana%20RosLehtinen.pdf (last visited June 22, 2011) (―While Title IX of the Education Amendments does afford 

protections against sex and gender-based discrimination, including harassment, the Congress must empower 

OCR to do more to properly protect LGBT students by passing explicit statutory protections on the basis of 

sexual orientation and gender. Such a step would serve to fill a glaring existing gap in our federal civil rights 

laws that leave one of the most vulnerable students [sic] populations without the protections they need.‖).

285 Franken Comment, supra note 282, at 3. The bill provides, in part:

SEC. 4. PROHIBITION AGAINST DISCRIMINATION. 

(a) IN GENERAL.—No student shall, on the basis of actual or perceived sexual orientation or gender 

identity of such individual or of a person with whom the student associates or has associated, be 

excluded from participation in, be denied the benefits of, or be subjected to 

discrimination under any program or activity receiving Federal financial assistance. 

(b) HARASSMENT.—For purposes of this Act, discrimination includes harassment of a student on the 

basis of actual or perceived sexual orientation or gender identity of such student or of a person with 

whom the student associates or has associated.

S. 555, 112th Cong. (2011). The companion bill in the House of Representatives is H.R. 998, 112th Cong. 

(2011). 

286 H.R. 1648, 112th Cong. (2011); S. 506, 112th Cong. (2011). The Safe Schools Improvement Act would 

establish state reporting requirements, needs assessment, and technical assistance, and require local educational 

agency discipline policies, indicators, and grievance procedures, and data collection by the Commissioner for 

Education Statistics. According to its sponsor, Representative Linda Sanchez, H.R. 1648 was designed ―to 

ensure that schools and districts develop and use comprehensive and effective student conduct policies that 

include clear prohibitions regarding bullying and harassment ... and ... ensure that States and districts maintain 

and report data regarding incidents of bullying and harassment ....‖ Public Comment of Rep. Linda Sanchez,

U.S. House of Representatives, at 1, May 12, 2011, available at

http://www.eusccr.com/31.%20U.S.%20Rep.%20Linda%20T.%20Sanchez.pdf (last visited June 22, 2011).

287 The DOJ also addresses religion-based discrimination under Title IV.

288 See, e.g., ED Response, supra note 145, at 23 (―Although OCR does not have the statutory authority to 

respond to complaints based solely on religion, a group‘s common faith does not divest OCR of its Title VI 
Jurisdiction: Peer-to-Peer Violence Related to LGBT Status and Religion 57

On September 19, 2001—eight days after the September 11 terrorist attacks—Secretary of 

Education Rod Paige issued a Dear Colleague Letter expressing concern about ―increasing 

news reports of incidents of harassment and violence directed at persons perceived to be 

Arab Americans or of Middle Eastern or South Asian origin, including children.‖289

Secretary Paige noted that harassment ―can take many forms, from abusive name calling to 

violent crimes directed at a student because of his or her race or ancestry, the country of 

origin of the student‘s family, or the student‘s cultural traditions.‖290 He continued, ―I take 

this opportunity to highlight our responsibilities under Title VI of the Civil Rights Act of 

1964. Title VI prohibits discrimination based on race, color, or national origin by recipients 

of federal financial assistance.‖291 He further stated:

Racial or ethnic harassment is unlawful. It can deny or limit a student‘s ability 

to receive or participate in the benefits, services, or opportunities in a school‘s 

program—simply speaking it denies students the right to an education free of 

discrimination. The existence of a racially hostile environment that is 

encouraged, accepted, or tolerated by a school, college, or university 

constitutes different treatment of students on the basis of race.

In response to last week‘s events specifically, I urge you to make sure that 

assemblies, classroom discussions, and other school activities held to honor 

victims of the tragedies do not inadvertently foster the targeting of ArabAmerican students for harassment or blame.292

In September 2004, ED issued guidance further elaborating on its enforcement of Title VI 

with respect to members of religious groups. In a Dear Colleague Letter by Kenneth L. 

Marcus, then-Acting Assistant Secretary for Civil Rights, ED explained, ―Although OCR‘s 

jurisdiction does not extend to religious discrimination, OCR does aggressively enforce Title 

VI, which prohibits discrimination on the basis of race or national origin .... In OCR‘s 

experience, some cases of religious discrimination may also involve racial [or] ethnic ... 

 

jurisdiction over discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics.‖); 

Marcus Statement, supra note 103, at 6 (―[Because federal civil rights laws are silent as to religion,] the federal 

administrative civil rights apparatus lacks jurisdiction to investigate religious discrimination claims in the public 

schools for cases involving student-on-student harassment or other forms of religious discrimination. By 

contrast, [OCR], which I once led, would have jurisdiction in those same situations if the basis of the 

harassment claims were racial, ethnic or disability-related rather than religious.‖).

289 Muslim/Arab DCL, supra note 223.

290 Id.

291 Id.

292 Id.
58 Peer-to-Peer Violence and Bullying

discrimination.‖293 The Letter warned, ―[W]e must remain particularly attentive to the claims 

of students who may be targeted for harassment based on their membership in groups that 

exhibit both ethnic and religious characteristics, such as Arab Muslims, Jewish Americans 

and Sikhs.‖294 It continued:

Groups that face discrimination on the basis of shared ethnic characteristics 

may not be denied the protection of our civil rights laws on the ground that 

they also share a common faith.[295]Similarly, the existence of facts indicative 

of religious discrimination does not divest OCR of jurisdiction to investigate 

and remedy allegations of race or ethnic discrimination. OCR will exercise its 

jurisdiction to enforce the Title VI prohibition against national origin 

discrimination, regardless of whether the groups targeted for discrimination 

also exhibit religious characteristics. Thus, for example, OCR aggressively 

investigates alleged race or ethnic harassment against Arab Muslim, Sikh and 

Jewish students.296

On September 8, 2010, in a letter from Assistant Attorney General Thomas Perez to Assistant 

Secretary Russlynn Ali, DOJ endorsed the approach to Title VI outlined in the 2004 Dear 

Colleague Letter. Asked to address ―whether, and under what circumstances, discrimination 

against persons belonging to discrete religious groups may violate Title VI,‖ DOJ quoted the 

2004 Dear Colleague Letter at length.297

 

293 Religion DCL, supra note 224. 

294 Id. 

295 Mr. Marcus has indicated that this policy was not enforced prior to 2004 or between 2004 and 2010. See 

Marcus Statement, supra note 103, at 6 (―[U]ntil 2004, OCR typically refused to investigate anti-Semitism

complaints on the grounds that Jews are a religious group, not a racial or national origin group.‖); see also id. at 

7 (―Over the following six years, my OCR successors generally did not adhere to these policy statements 

[addressed in the 2004 Dear Colleague Letter].‖); id. at 25 app. A (―OCR‘s leadership during the second George 

W. Bush administration and at the outset of the Obama administration were differently inclined, and they tended 

to disregard the 2004 policy.‖). Current OCR leadership takes a different view, stating that ―OCR‘s 

interpretation of its Title VI jurisdiction has not changed‖ from 2001 to present: ―Although OCR does not have 

the statutory authority to respond to complaints based solely on religion, a group‘s common faith does not 

divest OCR of its title VI jurisdiction over discrimination on the basis of actual or perceived shared ancestry or 

ethnic characteristics.‖ ED Response, supra note 145, at 23.

296 Religion DCL, supra note 224. The 2004 Dear Colleague Letter also addressed the enforcement of Title IX 

with respect to students who are members of religious groups. Upon describing ―allegations of race and sex 

discrimination against white, male Christian students,‖ the Letter stated: ―While OCR lacks jurisdiction to 

prohibit discrimination against students based on religion per se, OCR will aggressively prosecute harassment 

of religious students who are targeted on the basis of race or gender, as well as racial or gender harassment of 

students who are targeted on the basis of religion.‖ Id.

297 See Letter from Thomas E. Perez, Asst. Att‘y Gen., Civil Rights Div., U.S. Dep‘t of Justice, to Russlynn H. 

Ali, Asst. Sec‘y for Civil Rights, Office for Civil Rights, U.S. Dep‘t of Educ., Sept. 8, 2010, at 1, available at

http://www.justice.gov/crt/about/cor/TitleVI/090810_AAG_Perez_Letter_to_Ed_OCR_Title%20VI_and_Religi

ously_Identifiable_Groups.pdf (last visited June 22, 2010). 
Jurisdiction: Peer-to-Peer Violence Related to LGBT Status and Religion 59

It then concluded:

We agree with that analysis. Although Title VI does not prohibit 

discrimination on the basis of religion, discrimination against Jews, Muslims, 

Sikhs, and members of other religious groups violates Title VI when that 

discrimination is based on the group‘s actual or perceived shared ancestry or 

ethnic characteristics, rather than its members‘ religious practice. Title VI 

further prohibits discrimination against an individual where it is based on 

actual or perceived citizenship or residency in a country whose residents share 

a dominant religion or a distinct religious identity.298

ED subsequently issued similar guidance to schools in its Dear Colleague Letter of October 

26, 2010. After providing a hypothetical involving anti-Semitic harassment in a middle 

school, ED explained:

While Title VI does not cover discrimination based solely on religion, groups 

that face discrimination on the basis of actual or perceived shared ancestry or 

ethnic characteristics may not be denied protection under Title VI on the 

ground that they also share a common faith. These principles apply not just to 

Jewish students, but also to students from any discrete religious group that 

shares, or is perceived to share, ancestry or ethnic characteristics (e.g., 

Muslims or Sikhs). Thus, harassment against students who are members of 

any religious group triggers a school‘s Title VI responsibilities when the 

harassment is based on the group‘s actual or perceived shared ancestry or 

ethnic characteristics, rather than solely on its members‘ religious practices. A 

school also has responsibilities under Title VI when its students are harassed 

based on their actual or perceived citizenship or residency in a country whose 

residents share a dominant religion or a distinct religious identity.299

Although ED enforces Title VI with respect to harassment of members of religious groups 

based on their shared ancestry or ethnic characteristics, Title VI itself leaves a hole in ED‘s 

enforcement. That is, Title VI does not protect against harassment of students based solely on 

their religious faith, nor does it protect against harassment of students who belong to 

religious groups that do not have shared ancestry or ethnic characteristics.300 As a result, ED 

 

298 Id. at 1-2. 

299 Harassment/Bullying DCL, supra note 40, at 5 (footnotes omitted). 

300 See Briefing Transcript, supra note 7, at 234:19-235:1 (Marcus Testimony) (―[T]here are some religions that 

do not claim any sort of ethnic or ancestral particularity, but rather more of a universal characteristic and I think 

that is a large percentage of the students in the United States, who do not belong to such. So I would say that 

most forms of religious harassment would not be covered.‖).
60 Peer-to-Peer Violence and Bullying

cannot protect students from the ―peculiar harms created by religious bigotry.‖301

Furthermore, under current law, religious groups with shared ancestry or ethnic 

characteristics receive certain protections that religious groups without shared ancestry or 

ethnic characteristics do not receive;302 and would-be discriminators can evade Title VI 

liability by claiming that students harass based solely on religious bigotry.

303

Advocates urge Congress to close this ―loophole‖ by passing legislation that protects against 

harassment of students based on their religion.304 Even the current OCR policy, of enforcing 

Title VI to prohibit harassment of religious groups based on shared ancestry or ethnic 

characteristics, has not always been followed consistently and may not be followed in the 

future without a clearer statutory framework.305

Two recent bills before Congress have addressed harassment based on religion. The Safe 

Schools Improvement Act lists religion as one of several groups enumerated for protection 

from bullying and harassment.306 And in the 111th Congress, the legislature considered a bill 

 

301 Marcus Statement, supra note 103, at 8; see also id. at 9 (―Congress must prohibit religious discrimination in 

the public schools if religious students are to enjoy the equal educational opportunity guaranteed by the Equal 

Protection Clause of the Fourteenth Amendment and the full range of religious freedoms protected under the 

Free Exercise Clause of the First Amendment.‖).

302 See id. at 11-12.

303 See id. at 10.

304 See id. at 8 (―Assistant Secretary Ali‘s policy is a marvelous step forward, but it does not fully encompass 

the forms of religious harassment that students still face in the public schools for the simple reason that her 

agency lacks the authority to do so without further legislation.‖); Singh Statement, supra note 104, at 4 (urging 

Congress to ―resolve [this] lingering deficiency in federal anti-discrimination law‖); id.:

It is our experience that Sikh students are often targeted for bullying, violence, and 

harassment because of their Sikh identity. ... Given that religion is recognized as a protected 

category in the context of employment and accommodations under the 1964 Civil Rights Act; 

given that religion is recognized as a protected category under the Matthew Shepard and 

James Byrd, Jr. Hate Crimes Prevention Act (HCPA); and given the historic significance of 

religion as our nation‘s first freedom, there is no reason why religion should be excluded as a 

protected category under Title VI. (emphasis in original)

305 See Marcus Statement, supra note 103, at 13 (―OCR‘s adherence to its own guidance has been questionable 

at best over the last few years. Indeed, its failure to enforce the 2004 Policy between 2005 and 2010 suggests 

that more formal action is required to save the Ali Policy from the same non-enforcement that its predecessor 

had faced.‖) (footnote omitted); see also Public Comment of Zionist Organization of America, at 3, May 27, 

2011, available at

http://www.eusccr.com/ZOA%20statement%20to%20US%20Civ%20Rts%20Cmsn%20on%20fed%20resp%20

to%20bullying%205-11.pdf (last visited on Sept. 15, 2011) (―Title VI protections should not be subject to 

agency interpretation. Congress should enact legislation that enshrines in the law that federally funded schools 

must protect students from religious harassment and intimidation, in the same way that they are already 

obligated to protect against discrimination based on  ̳race, color, or national origin‘ under Title VI.‖).

306 H.R. 1648, 112th Cong. (2011); S. 506, 112th Cong. (2011); see also supra note 286.
Jurisdiction: Peer-to-Peer Violence Related to LGBT Status and Religion 61

to ―amend Title VI of the Civil Rights Act of 1964 to prohibit discrimination on the grounds 

of religion in educational programs or activities.‖307

 

307 H.R. 6216, 111th Cong. (2010); see also S. 3821, 111th Cong. (2010).
62 Additional Concerns Related to the Federal Response

Chapter 7. ADDITIONAL CONCERNS RELATED TO 

THE FEDERAL RESPONSE

side from jurisdiction, concerns regarding the federal response to harassment have 

focused on enforcement standards, issues of federalism/local control, and the First 

Amendment.

Enforcement Standards

Some commentators have criticized ED due to the scope of its anti-harassment policy. They 

contend that the legal standards set forth in ED‘s Dear Colleague Letter, and elsewhere, are 

more expansive than the legal standards established by case law.308 The DOJ applies these 

same standards when it seeks injunctive relief in court. There are three specific standards at 

issue:

 Notice Requirement. The Dear Colleague Letter instructs that a school ―is responsible 

for addressing harassment incidents about which it knows or reasonably should have 

known.‖309 This differs from the Supreme Court‘s statement in Davis v. Monroe 

County Board of Education that schools are liable for damages ―only where they are 

deliberately indifferent to [harassment], of which they have actual knowledge ....‖310

 Hostile Environment, Prong I. The Dear Colleague Letter says that harassment 

―creates a hostile environment when the conduct is sufficiently severe, pervasive or

 

308 See Statement of Francisco M. Negrón, Jr., Gen. Counsel, Nat‘l Sch. Bds. Ass‘n, at 5, May 13, 2011, 

available at

http://www.eusccr.com/24.%20Francisco%20Negrón,%20National%20School%20Boards%20Association.pdf

(last visited June 22, 2011) [hereinafter Negrón Statement] (―From a legal perspective, OCR has opted to adopt 

a stricter agency enforcement standard, even though the liability standard under federal laws handed down in 

Davis very clearly limits a school district‘s legal obligations ....‖); see also, e.g., Statement of Dr. John C. 

Eastman, Professor, Chapman Univ. Sch. of Law, at 5-6, May 13, 2011, available at

http://www.eusccr.com/7.%20John%20Eastman,%20Chapman%20University%20School%20of%20Law.pdf

(last visited June 22, 2011) [hereinafter Eastman Statement].

309 Harassment/Bullying DCL, supra note 40, at 2 (emphasis added).

310 Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650 (1999) (emphasis added); Gebser v. Lago Vista 

Indep. Sch. Dist., 524 U.S. 274, 290 (1998); see also Eastman Statement, supra note 308, at 5-6 (discussing the 

notice standard).

A
Peer-to-Peer Violence and Bullying 63

persistent ....‖311 Davis, however, says that damages are available ―only where the 

behavior is so severe, pervasive, and objectively offensive ....‖312

 Hostile Environment, Prong II. The Dear Colleague Letter further states that a hostile 

environment exists where, in part, the harassment ―interfere[s] with or limit[s] a 

student‘s ability to participate in or benefit from the services, activities, or 

opportunities offered by a school.‖313 Davis, meanwhile, says that a hostile 

environment requires that the harassment ―can be said to deprive the victims of access 

to the educational opportunities or benefits provided by the school.‖314

ED has defended its notice standard on grounds

that, whereas Davis involved a private suit for 

monetary damages, OCR standards are part of their 

administrative enforcement:

The Supreme Court in Gebser [v. Lago Vista 

Indep. School Dist.] and Davis was explicit 

that the liability standards established in 

those cases are limited to private actions for 

monetary damages. The Court was 

concerned with the possibility of a monetary 

damages award against a school for 

harassment about which it had not known. In 

contrast, the process of OCR‘s 

administrative enforcement requires OCR to 

make schools aware of civil rights violations 

and to seek voluntary corrective action to 

achieve compliance before pursuing fund termination or other enforcement 

mechanisms.315

Because of this distinction, ED says that it may apply a different notice standard in its 

administrative enforcement than courts apply in private suits for money damages.

316

 

311 Harassment/Bullying DCL, supra note 40, at 2 (emphasis added).

312 Davis, 526 U.S. at 652 (emphasis added).

313 Harassment/Bullying DCL, supra note 40, at 2.

314 Davis, 526 U.S. at 650.

315 Letter from Russlynn Ali, Asst. Sec‘y for Civil Rights, U.S. Dep‘t of Educ., to Francisco M. Negrón, Jr., 

Gen‘l Counsel, Nat‘l Sch. Bds. Ass‘n, at 3-4, Mar. 25, 2011, available at

http://www.nsba.org/SchoolLaw/Issues/Equity/Resources/ED-Response-to-NSBA-GCs-Letter-to-ED-on-OCRBullying-Guidelines.pdf (last visited May 12, 2011) [hereinafter Ali Letter to Negrón]; see also Briefing 

Transcript, supra note 7 at 13:10-14 (Ali Testimony) (―[W]e are talking in [Davis] about very different 

circumstances. We‘re talking about monetary damages in the private litigation sense. Courts have recognized 

that we set different standards, [Davis] itself did.‖).

The Supreme Court in 

Gebser and Davis was 

explicit that the liability 

standards established in 

those cases are limited 

to private actions for 

monetary damages.

Russlynn Ali, Dept. of Education

Letter to Francisco M. Negrón, Jr. 

(March 25, 2011).
64 Additional Concerns Related to the Federal Response

Specifically, ED cites the Supreme Court in Gebser, which notes the distinction between 

standards used in administrative enforcement and private suits for damages:

[T]he failure to promulgate a grievance procedure does not itself constitute 

―discrimination‖ under Title IX. Of course, the Department of Education 

could enforce the requirement administratively: Agencies generally have 

authority to promulgate and enforce requirements that effectuate the statute‘s 

nondiscrimination mandate, even if those requirements do not purport to 

represent a definition of discrimination under the statute. We have never held, 

however, that the implied private right of action under Title IX allows 

recovery in damages for violation of those sorts of administrative 

requirements.317

ED has further stated that the hostile-environment standards it uses are consistent with Davis, 

even if they include different terms:

Although the terms used by the Court in Davis are in some ways different 

from the words used to define hostile environment harassment in OCR‘s 

guidance documents, the definitions are consistent. As we explained in our 

2001 Sexual Harassment Guidance: ―Both the Court‘s and the Department‘s 

definitions are contextual descriptions intended to capture the same concept—

that under Title IX, the conduct must be sufficiently serious that it adversely 

affects a student‘s ability to participate in or benefit from the school‘s 

program. In determining whether harassment is actionable, both Davis and the 

Department tell schools to look at the  ̳constellation of surrounding 

circumstances, expectations and relationships,‘ and the Court in Davis cited 

approvingly the underlying core factors described in the 1997 guidance for 

evaluating the context of the harassment.‖318

 

316 See Ali Letter to Negrón, supra note 315, at 4 (―The Court has acknowledged the authority of Federal 

agencies, such as the Department, to  ̳promulgate and enforce requirements that effectuate [Title IX‘s] 

nondiscrimination mandate‘ in circumstances that would not give rise to a claim for monetary damages.‖) 

(citing Gebser, 524 U.S. at 292); see also Marcus Statement, supra note 103, at 22 app. A (―It is at least 

arguable that federal funding institutions‘ obligations to ensure that their funds are not used in a manner that 

violates constitutional requirements may sometimes entail standards that are more stringent than those that 

courts craft for damages cases.‖); Briefing Transcript, supra note 7, at 58:23-59:6 (Goss Graves Testimony) 

(―[E]ven though some courts around the country have interpreted the Title IX standards for damages in ways 

that have really raised the bar for being able to bring these cases, the standard for administrative enforcement 

and for injunctive relief is whether school officials knew or should have known about the harassment. And this 

[ ̳]should have known[‘] standard applies also when individuals file a lawsuit seeking injunctive relief only.‖); 

id. at 59:14-18 (Goss Graves Testimony) (―[T]he purpose of the [Davis] standard is to really ensure that the 

school is held liable for damages for its own acts and not responding to harassment not for a third party‘s act.‖).

317 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 292 (1998) (citations omitted).

318 Ali Letter to Negrón, supra note 315, at 4-5 (quoting REVISED SEXUAL HARASSMENT GUIDANCE, supra note 

220, at vi (citing Davis, 526 U.S. at 651)).
Peer-to-Peer Violence and Bullying 65

Finally, ED has stated that the standards outlined in the Dear Colleague Letter are not new, 

but are instead a restatement of standards that OCR has used for nearly 20 years:

They are the same standards that were set forth by OCR in its 1994 guidance 

on racial harassment, 1997 guidance on sexual harassment, 2000 guidance on 

disability harassment, 2001 revised guidance on 

sexual harassment, which was reissued with an 

accompanying Dear Colleague Letter in 2006, and a 

2008 pamphlet on sexual harassment.319

Nevertheless, critics have expressed concerns with the 

standards OCR uses. At the Commission‘s Briefing on May 

13, 2011, one panelist, Professor John Eastman, of Chapman 

University School of Law, criticized ED‘s use of standards 

that differ from Davis. He interpreted Gebser more narrowly 

than OCR does,320 and asserted that ―[a]n agency can impose 

regulations that are ancillary to the enforcement of a statute 

authorized by an enumerated power, such as rules requiring 

the reporting of certain data that is necessary to determine 

compliance with the underlying statute, but it cannot make 

up new prohibitions and substantive requirements that are not part of the relevant statute.‖321

He concluded that ―[t]he latitude given to the agencies is narrow, and the deviations between 

the Department‘s  ̳Dear Colleague‘ letter last October and the reasonable interpretation of the 

relevant civil rights statute are large ....‖322 Professor Eastman expressed specific concerns 

 

319 Id. at 2. See also Marcus Statement, supra note 103, at 20-21 app. A (―In fairness, it should be acknowledged 

that this deviation is not unique to the Obama administration‘s approach, since the new policy merely reiterates 

a standard that OCR announced as early as 1994 and which OCR reiterated during the second George W. Bush 

administration.‖) (citations omitted).

320 Eastman Statement, supra note 308, at 4 (―[T]he Department‘s claim that the liability standards of Davis do 

not limit the terms of its funding contracts with school districts is highly misleading—at best.‖).

321 Id.; see also Briefing Transcript, supra note 7, at 96:20-23 (Eastman Testimony) (―The Department seems to 

claim such authority when it cites the Gebser case from 1998, but I think it‘s misreading that case.‖).

322 See Eastman Statement, supra note 308, at 4; see also Briefing Transcript, supra note 7, at 96:9-19 (Eastman 

Testimony) (―[Congress] may not use its spending power as a pretext to accomplish indirectly what it cannot do 

directly. ... [I]t is even more clearly the case that an administrative agency cannot impose new conditions on the 

receipt of federal funding that are not authorized by law.‖); id. at 109:14-20 (Eastman Testimony) (―And the 

Court has also been very clear that we can‘t use the spending power to accomplish things that we don‘t have 

other authority to accomplish. What OCR seems to be doing here is using its conditions on spending in an effort 

to obtain a regulatory regime that they could not do directly ....‖).

Agencies generally have

authority to promulgate and 

enforce requirements that 

effectuate the statute’s 

nondiscrimination mandate ... 

even if those requirements do 

not purport to represent a 

definition of discrimination 

under the statute.

Gebser v. Lago Vista

Indep. Sch. Dist.

524 U.S. 274, 290, 292 (1998)
66 Additional Concerns Related to the Federal Response

regarding the Dear Colleague Letter‘s discussions of the notice standard, the kinds of conduct 

that constitute harassment, and remedial requirements.323Critiques have been made regarding 

each of OCR‘s enforcement standards. One criticism, for instance, focuses on the breadth of 

OCR‘s notice standard. Critics state that, whereas OCR holds schools accountable for 

harassment about which they ―know or reasonably should have known,‖ this is looser than 

the Davis requirement that schools only be liable for damages for harassment about which 

they have ―actual knowledge‖ and are ―deliberately indifferent.‖ Under this reasoning, 

OCR‘s notice standard could, at least in theory, include conduct that a school is not actually 

aware of, or that it knows about but does not treat with deliberate indifference; under Davis, 

the same school would not be liable for damages in a private suit. OCR, however, has 

disagreed with this critique, drawing a distinction between retrospective liability addressed in 

Davis and prospective remedies in OCR‘s administrative-enforcement proceedings.324 OCR

asserts that no school would be punished in such a manner because OCR provides schools 

with notice of their violation and an opportunity to correct it before it pursues termination of 

federal funding.

325

Another critique of OCR‘s standards centers on the first part of the ―hostile environment‖ 

standard, that the conduct be ―sufficiently severe, pervasive, or persistent.‖ By using a 

disjunctive standard (―or persistent‖), OCR might find a single incident to rise to the level of 

a civil rights violation where it is ―sufficiently severe‖ but not pervasive or persistent.326

Jocelyn Samuels, of the U.S. Department of Justice, noted this in her testimony to the 

Commission.327 This standard differs from the conjunctive Davis standard (―so severe, 

pervasive, and objectively offensive‖), which precludes a single incident from triggering 

 

323 See Eastman Statement, supra note 308, at 5-7.

324 Letter from Arthur R. Goldman, Customer Serv. & Tech. Team Leader, Office for Civil Rights, U.S. Dep‘t 

of Educ., to Kimberly A. Tolhurst, Acting Gen. Counsel, U.S. Comm‘n on Civil Rights, at 5, July 15, 2011 

(―The concern over imposing retrospective liability for damages where a school did not have actual knowledge 

that its actions were unlawful is of no moment in administrative-enforcement proceedings, where the remedies 

are prospective and where even any prospective loss of federal funding can be absolutely avoided by curing the 

violation.‖) (emphasis in original).

325 See, e.g., Ali Letter to Negrón, supra note 315, at 4 (―[T]he process of OCR‘s administrative enforcement 

requires OCR to make schools aware of civil rights violations and to seek voluntary corrective action to achieve 

compliance before pursuing fund termination or other enforcement mechanisms.‖).

326 See, e.g., Marcus Statement, supra note 103, at 21 app. A.

327 See Briefing Transcript, supra note 7, at 48:24-49:4 (―[W]e do not have jurisdiction and would not take 

action against single incidents of playground taunting absent something like physical conduct that made a single 

incident sufficiently severe or pervasive to create a hostile environment.‖).
Peer-to-Peer Violence and Bullying 67

damages liability.328 Critics have said that this difference risks overstepping by the federal 

government329 and violations of students‘ free speech rights,330 and may misinterpret 

Supreme Court precedent.331 A second critique of ED‘s hostile-environment standard has 

involved the potential breadth of the second prong. Whereas the Dear Colleague Letter states 

that harassment creates a hostile environment where it, in part, ―interfere[s] or limit[s] a 

student‘s ability to participate in or benefit from the services, activities, or opportunities 

offered by a school,‖ Davis says the harassment must ―deprive the victims of access to 

educational opportunities or benefits provided by the school.‖ The Foundation for Individual 

Rights in Education, for instance, criticized the standard‘s potential breadth in its Public 

Comment, saying, ―This is problematic because  ̳limit‘ is a broad term that could encompass 

effects of widely varying severity, setting a far lower bar for conduct that constitutes 

harassment.‖332

Others have pointed out that the terms used in the 2010 Dear Colleague Letter‘s hostileenvironment standard differ from those used in previous guidance issued by OCR.

Specifically, OCR uses the phrase ―interfere with or limit‖ rather than the phrase from the 

 

328 The standard has also been criticized for allegedly omitting ―an objective component—a  ̳reasonable person‘ 

standard—in the assessment of harassment claims.‖ See Public Comment of Foundation for Individual Rights in 

Education (FIRE), at 3, May 26, 2011, available at

http://thefire.org/public/pdfs/6aefda8e736cc0f8d633980f9549eeae.pdf?direct (last visited Sept. 9, 2011) 

[hereinafter FIRE Comment]. It has been alleged that ―[t]he loss of the crucial  ̳reasonable person‘ standard 

means that a school‘s most sensitive students effectively determine what speech is prohibited.‖ Id. ED, 

however, maintains that this analysis is incorrect; it is ED‘s policy to ―consider[] the conduct from both a 

subjective and objective perspective.‖ See REVISED SEXUAL HARASSMENT GUIDANCE, supra note 220, at 5 

(citations omitted); First Amendment DCL, supra note 225 (―OCR‘s standards require that the conduct be 

evaluated from the perspective of a reasonable person in the alleged victim‘s position‖).

329 See Briefing Transcript, supra note 7, at 251:3-254:5 (Negrón Testimony). For further discussion of 

federalism concerns, please see pp. 68-73.

330 See id. at 297:14-298:21 (Volokh Testimony); Public Comment of National Coalition Against Censorship, at 

2-7, May 27, 2011, available at http://www.scribd.com/doc/56492194/Comments-on-Federal-Anti-BullyingPolicy-on-Free-Expression (last visited Sept. 9, 2011) [hereinafter National Coalition Against Censorship 

Comment]; FIRE Comment, supra note 328, at 2 (―Because of the careful balance struck by the Court in 

enunciating the Davis standard, we believe that any new guidance or legislation must ... explicitly reference or

incorporate the Davis standard to ensure that students‘ right to free expression is not inadvertently compromised 

by schools‘ efforts to address and eliminate harassment.‖). For further discussion of First Amendment concerns, 

please see pp. 74-84.

331 See, e.g., Marcus Statement, supra note 103, at 22 app. A (―OCR would face a steep challenge in defending 

its policy in federal court, given that the Supreme Court rejected the single-incident approach based not upon 

such issues as punitive damages or lawyers‘ fees but upon its assessment of congressional intent in drafting the 

relevant language.‖).

332 FIRE Comment, supra note 328, at 3.
68 Additional Concerns Related to the Federal Response

2001 Revised Sexual Harassment Guidance, ―denies or limits.‖333 Critics claim that the word 

―interfere‖—instead of ―deny‖—shifts the standard 

away from the standard in Davis. OCR has 

maintained, meanwhile, that the 2010 definition ―is 

neither new nor inconsistent with Davis.‖334 Although 

the words in the 2001 Revised Sexual Harassment 

Guidance were put forth soon after the Davis decision, 

and were more similar to the Davis standard than 

previous standards (it changed the previous term, 

―limit,‖335 to ―denies or limits‖), ED explicitly stated 

at the time that it did not intend its 2001 guidance to 

change its standards in response to Davis. Indeed, in 

its November 2000 Notice of Proposed Revised 

Guidance, ED said:

[I]n the proposed revised guidance the 

definition of conduct that creates a hostile 

environment is substantively the same as in the 

1997 guidance, but the discussion contains 

several revisions to clarify that the Davis definition and the guidance 

definition are consistent. ... Although the terms used by the Court in Davis are 

in some ways different from the words used to define hostile environment 

harassment in the 1997 guidance, the definitions are consistent. The Court‘s 

definition, like the Department‘s 1997 guidance, is a contextual description 

intended to capture the same concept—that under Title IX the conduct must 

 

333 See REVISED SEXUAL HARASSMENT GUIDANCE, supra note 220, at 5.

334 See Ali Letter to Negrón, supra note 315, at 5. In fact, OCR, has used somewhat different terminology 

throughout its guidance documents on harassment. For instance, its 1994 Racial Harassment guidance used the 

term ―interfere with or limit,‖ see Racial Incidents and Harassment Against Students Guidance, supra note 222, 

at 11,449 (―A violation of title VI may also be found if a recipient has created or is responsible for a racially 

hostile environment—i.e., harassing conduct (e.g., physical, verbal, graphic, or written) that is sufficiently 

severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or 

benefit from the services, activities or privileges provided by a recipient.‖) (emphasis added), and its 2000 

Disability Dear Colleague Letter used the term ―adversely affect.‖ See Disability DCL, supra note 63 (―A 

hostile environment may exist even if there are no tangible effects on the student where the harassment is 

serious enough to adversely affect the student's ability to participate in or benefit from the educational 

program.‖) (emphasis added).

335 OFFICE FOR CIVIL RIGHTS, U.S. DEP‘T OF EDUC., SEXUAL HARASSMENT GUIDANCE (1997) available at 

http://www2.ed.gov/about/offices/list/ocr/docs/sexhar01.html (last visited June 8, 2011) (―sufficiently severe, 

persistent, or pervasive to limit a student‘s ability to participate in or benefit from an education program or to 

create a hostile or abusive educational environment‖) (emphasis added).

An agency can impose 

regulations that are 

ancillary to the 

enforcement of a statute 

... but it cannot make up 

new prohibitions and 

substantive 

requirements that are 

not part of the relevant 

statute.

John Eastman, Chapman 

University School of Law

Written Statement p. 4.
Peer-to-Peer Violence and Bullying 69

be sufficiently serious that it adversely affects a student‘s ability to participate 

in or benefit from the school‘s program.336

Because insertion of the word ―deny‖ into the 2001 guidance was not intended to alter 

OCR‘s standard or match the standard enumerated in Davis, replacing the word with 

―interfere‖—a term that had been used to describe the hostile environment standard preDavis337—does not necessarily alter the standard either. However, even if the differences 

between the terms used in OCR‘s guidance documents are not substantive, this critique 

highlights that OCR‘s use of different terms in different documents can be confusing, 

particularly where it does not explain the changes that it is making. In addition to these 

targeted critiques, Francisco M. Negrón, Jr., General Counsel of the National School Boards 

Association, has also offered a broader criticism of OCR‘s use of stricter standards than those 

set forth in Davis, suggesting that the approach may confuse local school officials.

―[N]uanced legal distinctions,‖ he said, ―can create confusion that detracts from an 

understanding of the requirements of the law and could have the unwelcome effect of chilling 

educators‘ actions for fear of legal liability under federal civil rights laws.‖338 He also feared 

that The Dear Colleague Letter‘s standards could lead to additional litigation if courts adopt 

OCR‘s standards for private suits that do not involve damages.339 Mr. Negrón further 

believed that, while the standards articulated in the Dear Colleague Letter are not new, ―[t]he 

tone of the 2010 [Dear Colleague Letter] is significantly different from that of past 

guidance.‖340 Instead of using ―a relatively hands-off approach,‖ he reasoned, the 2010 

Letter‘s discussion of examples, mistakes, and remedies ―is creating an expectation that 

 

336 Notice, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other 

Students, or Third Parties, 65 Fed. Reg. 66,092, 66,096-97, Nov. 2, 2000 (citations omitted).

337 See Racial Incidents and Harassment Guidance, supra note 222, at 11,449 (―A violation of title VI may also 

be found if a recipient has created or is responsible for a racially hostile environment—i.e., harassing conduct 

(e.g., physical, verbal, graphic, or written) that is sufficiently severe, pervasive or persistent so as to interfere 

with or limit the ability of an individual to participate in or benefit from the services, activities or privileges 

provided by a recipient.‖) (emphasis added).

338 Negrón Statement, supra note 308, at 5; see also Briefing Transcript, supra note 7, at 251:20-23 (Negrón 

Testimony) (―OCR‘s position confuses the standards between liability and enforcement, making it more 

difficult for school officials to understand the requirements of the law.‖).

339 Briefing Transcript, supra note 7, at 252:17-253:17 (Negrón Testimony) (―Courts are starting to use the 

OCR standard, granting the Department administrative deference for guidance that has not the same weight as 

officially promulgated rules under the Administrative Procedures Act. ... Our fear is that plaintiffs‘ lawyers 

may be emboldened by such an approach to pursue litigation against schools.‖).

340 Negrón Statement, supra note 308, at 3.
70 Additional Concerns Related to the Federal Response

school officials are to respond to each and every offensive incident as if it were a civil rights 

violation.‖341

Federalism

Several commentators have also expressed concerns related to federalism—that is, whether, 

and in what contexts, peer-to-peer violence is best addressed by states, local school boards,

and local officials, rather than by the federal government. In her response to such critiques, 

Assistant Secretary Russlynn Ali has agreed that ―[n]o universal, one-size-fits-all approach 

will be right for every school or all students ....‖342 She has explained:

[T]he remedies in the [Dear Colleague Letter] may not be required or 

appropriate in every case. Each case is fact-specific, and OCR will make 

individual determinations based on the particular circumstances at a school.

The [Dear Colleague Letter] does not change this. ... The DCL does not 

diminish the importance of administrators‘ professional judgment; rather it 

provides examples of appropriate remedies to help inform administrators‘ 

decisions.343

Likewise, at the Commission‘s Briefing on May 13, 2011, Assistant Secretary Ali said:

[O]ur policy guidance does not attempt to mandate [a one-size-fits-all 

approach]. Keeping the schools free from harassment is primarily a local 

responsibility. Teachers‘ and school administrators‘ good judgment, common 

sense, and knowledge of the school community are critical to crafting an 

effective response to harassment. And parents and community organizations 

play no less important a role. We therefore encourage and support 

community-based approaches to addressing peer harassment and changing the 

school climate so that it does not recur.344

 

341 Id. at 3-4; see also id. at 4 (―This standard may needlessly drain school resources and attention from the 

more crucial task of fostering an appropriate climate while minimizing the professional discretion of local 

educators to craft workable, individualized solutions.‖).

342 Ali Statement, supra note 6, at 6.

343 Ali Letter to Negrón, supra note 315, at 6.

344 Id. Similarly, DOJ stated, ―we absolutely think that schools are in the best position to address harassment and 

ensure the safety of their school environments and that‘s why, first of all, we only get involved when there has 

been a failure of the school district to take the necessary steps.‖ Briefing Transcript, supra note 7, at 49:22-50:3 

(Samuels Testimony).
Peer-to-Peer Violence and Bullying 71

According to Assistant Secretary Ali, ―[E]ach school has the ultimate responsibility to create 

a safe learning environment and to ensure that its policies, practices, and procedures protect 

all students from discrimination based on race, national origin, sex, and disability. OCR will 

step in when necessary to ensure that schools fulfill their legal duties.‖345

When OCR does ―step in,‖ she explained, its role 

can be somewhat limited:

[O]ur administrative enforcement procedures 

require us to give schools notice of alleged 

civil rights violations and to seek voluntary 

corrective action before we can even consider 

pursuing fund termination or referring the 

matter to the Department of Justice for 

litigation. We take full advantage of the 

opportunity that our procedures afford to 

educate school officials about their obligations 

under the civil rights laws, and to help them 

develop policies to prevent and appropriately 

respond to harassment.346

Despite OCR‘s assurances, several critics remain 

skeptical about the federal government‘s role in 

anti-bullying efforts, as well as the use of federal civil rights laws to combat bullying 

generally.

Some advocates assert that OCR‘s and DOJ‘s active roles in combating bullying make it 

more difficult for schools to address this issue because schools‘ conduct will be driven by 

fear of litigation rather than on-the-ground needs. For instance, Francisco Negrón warned 

that addressing school bullying through civil rights laws at all ―will tend to federalize every 

instance of bullying and harassment by causing school leaders to over-identify every incident 

of teasing and name-calling as possible harassment.‖347 Civil rights law, he asserted, ―is 

 

345 Ali Statement, supra note 6, at 6.

346 Id. at 7.

347 Negrón Statement, supra note 308, at 5.

‘Federalizing’ bullying 

may chill the ability of 

educators to respond in 

otherwise appropriate 

ways for fear of agency 

action or litigation. 

Francisco Negrón, National 

School Boards Association

(Written Statement, p. 9)
72 Additional Concerns Related to the Federal Response

considerably too blunt an instrument to address the problem of bullying.‖348 He explained, 

―What school leaders need, instead of an overly heightened awareness of potential liability 

and an overly broad definition of bullying, is recognized discretion to exercise professional 

judgment about the situations on the ground.‖349 What ―[s]chools do not need,‖ however, is 

―the specter of protracted litigation, money damages, or federal enforcement to inform their 

choices about school safety.‖350 He feared that ―a school district may adopt, for instance, a 

more strict enforcement standard following the [Dear Colleague Letter‘s] guidelines and then 

somehow adopt for itself some sort of legal liability.‖351

Mr. Negrón and others likewise believed that bullying incidents are most effectively 

addressed both at the local level and within local schools‘ discretion. ―A bullying incident is 

best addressed by local entities taking into account the characteristics and priorities of the 

communities,‖352 he reasoned, and ―educators should be free to use whatever tools exist in 

their professional arsenal to address any conflict between students, including bullying[, 

 

348 Id. at 6. 

349 Id. at 5.

350 Id. at 6. See also id. at 9 (― ̳[F]ederalizing‘ bullying may chill the ability of educators to respond in otherwise 

appropriate ways for fear of agency action or litigation. ... [I]f every instance implicates a federal right, 

educators will have no choice but to take formal steps in even the most mundane of cases to avoid agency 

liability and prepare for a legal defense. Such an insalubrious approach places form over function, restricting the 

educator‘s ability to use discretion and to respond effectively with the fewest resources necessary to resolve a 

conflict.‖); Public Comment of Neal McCluskey, Assoc. Dir., Ctr. for Educ. Freedom, Cato Inst., at 5, available 

at http://www.eusccr.com/28.%20Neal%20McCluskey,%20Cato%20Institute.pdf (last visited June 22, 2011) 

[hereinafter McCluskey Comment] (―The major problem stemming from such after-the-fact governance is clear: 

The strong incentive it gives school officials is to overreact to incidents that could even remotely be connected 

to group-based harassment or bullying, even if they are not.‖); Statement of Kenneth S. Trump, President and 

CEO, Nat‘l Sch. Safety and Sec. Serv., Inc., at 9-10, May 13, 2011, available at

http://www.eusccr.com/26.%20Kenneth%20Trump,%20National%20School%20Safety%20and%20Security%2

0Services,%20Inc.pdf (last visited June 22, 2011) [hereinafter Trump Statement] (describing the Dear 

Colleague Letter as ―counterproductive‖ and ―overreach,‖ and predicting increased litigiousness); id. at 9 

(―[school administrators‘] concerns were not one of being questioned or second-guessed, but a concern about 

the role, experience, competence, and legitimacy of federal civil rights investigators with school climate and 

discipline issues (bullying).‖).

351 Briefing Transcript, supra note 7, at 278:9-13 (Negrón Testimony); see also id. at 65:20-22 (Clegg 

Testimony) (―[L]ocal schools are going to be caught in this bind where they‘re afraid of being sued if they do, 

they‘re afraid of being sued if they don‘t.‖).

352 Negrón Statement, supra note 308, at 7; see also id. (―School boards across the country are doing this right 

now, and have been for the past several years. State legislatures and educational agencies are passing laws and 

model policies to direct school boards‘ policy formation. ... At last count, 45 states had passed an anti-bullying 

statute. The vast majority of these statutes require local school boards to address bullying through policy, with 

the participation of the community.‖).
Peer-to-Peer Violence and Bullying 73

which] could mean using the lowest level of intervention necessary.‖353 Mr. Negrón

suggested that ―the first thing we need to do is make sure that our policies empower 

educators. Educators know that they have the ability to 

act, to correct whatever situation comes before them, 

whether it‘s bullying or harassment.‖354 ―But also,‖ he 

warned, ―we need to not chill their ability to do that. We 

need teachers not to believe that there will be an 

impending federal lawsuit if they do not treat a specific 

set of circumstances as a federal civil rights violation.‖355

Other critics have averred that the line-drawing involved 

in anti-bullying efforts—such as determining the 

distinctions between free speech and unlawful 

harassment, sex-stereotype harassment and sexualorientation harassment, and hostile and non-hostile 

environments—are best left to local authorities.356 As 

Roger Clegg, President and General Counsel of the Center for Equal Opportunity, stated:

[T]he question is where and how to draw the line and who should draw it. The 

line-drawing in this area will not always be easy—there are gray areas 

 

353 Id. at 9; see also Briefing Transcript, supra note 7, at 143:3-12 (Clegg Testimony) (―[T]he federal 

government‘s involvement will actually make matters worse, because it‘s much more difficult for the federal 

government to draw these nuanced lines on the basis of local conditions, what was actually happening in the 

school, what the student actually said, all of that—much more difficult for the federal government to design a 

policy that is going to be sensitive to all that—than leaving it to the local schools.‖)

354 Briefing Transcript, supra note 7, at 286:13-17 (Negrón Testimony).

355 Id. at 286:18-22. 

356 See, e.g., McCluskey Comment, supra note 350, at 5 (―[W]hat is the  ̳right‘ way to handle bullying—

especially in light of free speech and equal protection concerns—is far from a settled matter, which is all the 

more reason that the federal government should be very reticent about acting even if it has the authority to do 

so.‖); Clegg Statement, supra note 249, at 5 (―I would rather have the lines drawn at the most local level 

possible. ... The presumption should be for only a limited federal role in matters of local schools and local 

school discipline. Sometimes—as with racial discrimination—that presumption can rightly be overcome. But I 

cannot imagine that this is the case here.‖); Briefing Transcript, supra note 7, at 63:25-64:5 (Clegg Testimony) 

(―[T]his is a very difficult area with a lot of difficult line-drawing that has to be done. When does protected 

speech become unprotected speech, and become harassment? When does harassment become a threat? When 

does a threat become an actual physical assault? And so forth.‖); cf. Trump Statement, supra note 350, at 7 

(―Other questions include not only how will school climate be defined, but who will be defining it? Will it be 

D.C. bureaucrats? Will the definition be influenced by special interest groups lobbying for their agendas under 

 ̳anti-bullying‘ and  ̳school safety‘ labels?‖).

I would rather have the 

lines drawn at the most 

local level possible. ... 

The presumption should 

be for only a limited 

federal role in matters of 

local schools and local 

school discipline.”

Roger Clegg,

Center for Equal Opportunity

Written Statement, p. 5.
74 Additional Concerns Related to the Federal Response

between argument and teasing and harassment, between threats and horseplay 

and assault—and certainly the line, even if rightly drawn in theory, will often 

be crossed by politically correct government bureaucrats in Washington and 

the lawsuit-shy educators who are intimidated by them.357

―This kind of nuanced line-drawing,‖ Clegg reasoned, ―is something where reasonable 

people can differ, and where people are going to draw the lines differently, depending on 

local circumstances.‖358 Panelists also argued that addressing bullying locally, rather than 

federally, would allow schools to develop and implement a variety of solutions,359 and do so 

based on local characteristics and individualized circumstances.

360

When confronted with these federalism arguments, other advocates responded that active

federal involvement in peer-to-peer violence is necessary because, in their experience,

localities are failing to adequately address the issue on their own. Eliza Byard, Executive 

Director of GLSEN, reasoned, if ―schools responded when conduct crossed the line into 

bullying and physical violence, we would not be here today. That is not what is happening.

Schools are not responding in a way sufficient to protect the educational access, physical 

well-being and emotional well-being of young people who are facing violence and 

harassment every day.‖361

Ms. Byard and others believe that federal intervention is a necessary backstop where local 

schools and communities fail to act to protect their students, particularly students targeted 

due to their membership in an unpopular identity group.362 Rajdeep Singh, Director of Law 

 

357 Clegg Statement, supra note 249, at 4.

358 Briefing Transcript, supra note 7, at 113:4-7 (Clegg Testimony).

359 See McCluskey Comment, supra note 350, at 5 (―In keeping with the genius of the American federal design, 

it is better to let fifty states experiment with different remedies than to impose one on all Americans. That 

allows numerous potential remedies to be tried, and prevents a poor—or even dangerous—one from being 

imposed on the entire nation.‖).

360 See Negrón Statement, supra note 308, at 7 (―A bullying incident is best addressed by local entities taking 

into account the characteristics and priorities of the community.‖). 

361 Briefing Transcript, supra note 7, at 154:4-11 (Byard Testimony); see also id. at 283:20-22 (Aaberg 

Testimony) (―[W]ith all the kids around the country coming to me and telling me what‘s going on in their 

district, obviously local involvement is not working.‖).

362 See id. at 88:5-17 (Byard Testimony):

A core challenge we face is the fact that bias-based bullying complicates adult response. 

Whether out of fear of controversy, failure to recognize the seriousness of the behavior, or 

active indifference to the fate of the students involved, adults charged with the education and 

care of our children are not consistently living up to their responsibilities. Federal leadership 
Peer-to-Peer Violence and Bullying 75

and Policy at the Sikh Coalition, for instance, noted that although New York City has 

adopted a strong anti-bullying regulation, the policy has not been implemented or enforced 

effectively.363 He proffered, ―[W]here children‘s civil 

rights are being repeatedly violated, and where school 

officials take a casual approach toward their obligations 

to protect children from harm, federal intervention 

becomes a moral imperative.‖364

Similarly, Helen Gym, of Asian Americans United, 

discussed her own experiences regarding racial tensions 

and violence at South Philadelphia High School in 

Philadelphia, PA, reasoning that federal intervention 

was necessary to address the conflict. She said, ―As 

appalling as the December 2009 attacks were, it was the 

egregious conduct of school officials in the months 

leading up to that day and in the months following that warranted federal intervention. It is 

this experience which has shaped our firm belief in the necessity of federal intervention in 

bias-based harassment at schools.‖365 She also praised DOJ, which addressed the incident, for 

its ―collaboration with communities to implement at South Philadelphia High School what 

we hope is a groundbreaking settlement agreement to address bias in schools across the 

country.‖366

Although 45 states367 and countless localities have anti-bullying policies, these advocates 

asserted that the current legal patchwork is inadequate to protect all students nationwide. 368

 

is necessary to make the basic level of the extent of their responsibilities crystal clear, and to 

assure those who fear controversy or backlash that they are doing the right thing.

See also, e.g., Singh Statement, supra note 104, at 3 (―[W]e believe that vigorous federal intervention is needed 

to hold schools and school districts accountable for their actions and, just as importantly, their inaction.‖).

363 See Singh Statement, supra note 104, at 3-4.

364 Id. at 4.

365 Briefing Transcript, supra note 7, at 169:15-22 (Gym Testimony).

366 Id. at 169:24-170:2.

367 See Anti-Defamation League, Ultimate ADL Chart of State Anti-Bullying Statutes, available at 

http://www.eusccr.com/ppvb.htm (follow ―ADL Attachment - Ultimate ADL Chart of State Anti-Bullying 

Statutes‖ hyperlink).

[The response of school 

officials to the December 

2009 Philadelphia 

attacks] shaped our firm 

belief in the necessity of 

federal intervention in 

bias-based harassment 

at schools. 

Helen Gym, Asian Americans 

United

(Briefing Transcript p. 169)
76 Additional Concerns Related to the Federal Response

As Paula Goldberg, Executive Director of the PACER Center, said, ―[W]e have 45 states that 

have their own laws, but it is not working. We wouldn‘t be here today, you wouldn‘t have 

this hearing today, if it was working. It‘s not working. Therefore, we need something 

consistent.‖369

First Amendment

Finally, commentators have expressed concerns that ED and DOJ‘s response to peer-to-peer 

violence and bullying, and public schools‘ anti-bullying policies generally, might conflict 

with protections guaranteed by the First Amendment of the U.S. Constitution.370 Specifically, 

these concerns involve students‘ rights to free speech, including religious speech.371

 

368 See, e.g., Briefing Transcript, supra note 7, at 91:22-92:1 (Byard Testimony) (―For every Jackson, 

Mississippi, and Park City, Utah, there are places where bullying-prevention efforts do not explicitly protect all 

students and where the consequences are real.‖); Aaberg Statement, supra note 99, at 6 (―It is not right that kids 

in one part of the country have laws that protect them more than others. In some areas kids barely have any 

protections at all or if they have a policy in place it is not enforced. ... All of our kids should have the same 

protections across the country no matter what city or state they live in.‖); Anti-Defamation League Statement, 

supra note 31, at 2 (―Federal leadership on these important issues helps nurture a climate and a culture in which

the vast majority of members of the community are willing to condemn bigotry, bullying, cyberbullying, and 

harassment.‖); see also generally Briefing Transcript, supra note 7, at 290:6-9 (Lauter Testimony) (noting that 

the Anti-Defamation League has created a chart of anti-bullying statutes of all 45 states); id. at 291 (Lauter 

Testimony) (―[F]or us this combination of having state laws as well as the Federal Government doing the big 

picture would be enormously helpful ....‖).

369 Briefing Transcript, supra note 7, at 215:16-21 (Goldberg Testimony).

370 See U.S. CONST. amend. I (―Congress shall make no law respecting an establishment of religion, or 

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the 

people peaceably to assemble, and to petition the Government for a redress of grievances.‖).

371 See, e.g., Statement of Eugene Volokh, Professor, Univ. of Cal., L.A., at 1, May 13, 2011, available at

http://www.eusccr.com/27.%20Eugene%20Volokh,%20UCLA%20School%20of%20Law.pdf (last visited June 

22, 2011) [hereinafter Volokh Statement] (―I would caution against policies that are written using vague terms 

such as  ̳bullying,‘  ̳harassment,‘ or  ̳hostile educational environment,‘ especially when the policies cover 

speech that isn‘t targeted to a particular person, as well as speech that is said off-campus.‖); Negrón Statement, 

supra note 308, at 10 (―[T]he OCR approach appears to ask schools to regulate speech it deems to constitute 

bullying and harassment, only to risk suit by the parents of the disciplined students.‖); Marcus Statement, supra

note 103, at 27 app. A (―OCR‘s failure to recognize First Amendment limitations is particularly conspicuous in 

its new policy document, given the aggressive position that it is taking on the legal standards for establishing 

harassment. To the extent that OCR will find harassment in single-incident cases of offensive speech which are 

merely  ̳severe, pervasive, or persistent,‘ First Amendment concerns will inevitably arise.‖) (emphasis in 

original); Statement of Hiram S. Sasser, III, Dir. of Litig., Liberty Inst., at 14, May 13, 2011, available at

http://www.eusccr.com/11.%20Hiram%20S.%20Sasser,%20III,%20Liberty%20Institute.pdf (last visited June 

22, 2011) [hereinafter Sasser Statement] (―It is tempting to engage in censorship of some students to benefit 

others, but the cause of freedom is never advanced by selective censorship of those messages with which the 

government disagrees.‖); McCluskey Comment, supra note 350, at 3 (―While much that is called bullying and 

harassment is no doubt behavior intended to threaten or intimidate, identifying motive can be very difficult, and 

empowering government-employed educators to decide what is behavior or speech intended to harass or 

intimidate, rather than to express and an [sic] opinion, is very dangerous.‖); National Coalition Against 
Peer-to-Peer Violence and Bullying 77

According to Assistant Secretary Ali, ―very little of the harassment that [ED sees] involves 

any protected speech.‖372 She explained: 

Physical harassment, violence, and threats are never constitutionally 

protected. Nor is harassment the same thing as unpopular or offensive speech. 

... [S]tudent-on-student harassment violates federal civil rights laws only if it 

is sufficiently serious to create a hostile environment that interferes with or 

limits a student‘s ability to participate in or benefit from the services, 

activities, or opportunities that the school offers. The First Amendment‘s Free 

Speech Clause does not give students license to say whatever they want,

whenever they want, without regard to the effect of their speech on other 

students. Schools cannot tolerate discriminatory harassment that interferes 

with providing a safe, nurturing learning environment for all students.373

Even when certain speech is constitutionally protected, Assistant Secretary Ali explained, 

―schools have other means, apart from disciplining wrongdoers, to ameliorate the harms.‖374

She noted that schools may provide training or other educational programs to teachers, 

students, and parents, as well as counseling services and medical resources to harassment 

victims.375

ED acknowledged First Amendment concerns in its Dear Colleague Letter, stating that 

―[s]ome conduct alleged to be harassment may implicate the First Amendment rights to free 

speech or expression.‖376 ED had previously addressed harassment and the First Amendment 

in a Dear Colleague Letter issued on July 28, 2003.377 The 2003 Letter said that, to implicate 

 

Censorship Comment, supra note 330, at 2 (―By stretching the definition of harassment to encompass various 

kinds of verbal interactions in schools and colleges, the letter threatens the delicate balance the Supreme Court 

has struck between the right to equality at work and school and the right to free speech, an approach reflected in 

OCR pronouncements until recently.‖).

372 Ali Statement, supra note 6, at 6.

373 Id. at 6 (emphasis in original); see also infra note 406; but see infra note 401.

374 Ali Statement, supra note 6, at 6.

375 See id.

376 Harassment/Bullying DCL, supra note 40, at 2 n.8; see also Conference Call Transcript, supra note 228, at 

14-15 (Statement of Russlynn Ali) (―We interpret our regulations both at the elementary and secondary level 

and the college and university level consistent with constitutional principles in the first amendment.‖); id. at 17 

(Statement of Russlynn Ali) (responding to a question regarding the balance of religious free speech and 

protecting against anti-gay bullying) (―We would balance first amendment protections of that case. But together 

working with school and faculty officials we would work to make sure that all students had a safe place and 

healthy place to learn.‖).

377 See First Amendment DCL, supra note 225; see also Harassment/Bullying DCL, supra note 40, at 2 n.8 

(referring to the First Amendment DCL for more information).
78 Additional Concerns Related to the Federal Response

federal civil rights laws, alleged conduct must involve more than mere political 

incorrectness:

Harassment, ... to be prohibited by the statutes within OCR‘s jurisdiction, 

must include something beyond the mere expression of views, words, symbols 

or thoughts that some person finds offensive. Under OCR‘s standard, the 

conduct must also be considered sufficiently serious to deny or limit a 

student‘s ability to participate in or benefit from the educational program.

Thus, OCR‘s standards require that the conduct be evaluated from the 

perspective of a reasonable person in the alleged victim‘s position, 

considering all the circumstances, including the alleged victim‘s age.378

The Letter elaborated:

OCR has consistently maintained that the statutes that it enforces are intended 

to protect students from invidious discrimination, not to regulate the content 

of speech. Harassment of students, which can include verbal or physical 

conduct, can be a form of discrimination prohibited by the statutes enforced 

by OCR. Thus, for example, in addressing harassment allegations, OCR has 

recognized that the offensiveness of a particular expression, standing alone, is 

not a legally sufficient basis to establish a hostile environment under the 

statutes enforced by OCR.379

The Letter further advised that ―schools in regulating the conduct of students and faculty to 

prevent or redress discrimination must formulate, interpret, and apply their rules in a manner 

that respects the legal rights of students and faculty, including those court precedents 

interpreting the concept of free speech.‖380 It explained, ―OCR‘s regulations and policies do 

not require or prescribe speech, conduct or harassment codes that impair the exercise of 

rights protected under the First Amendment.‖381 Likewise, ―[t]here is no conflict between the 

civil rights laws that this Office enforces and the civil liberties guaranteed by the First 

 

378 First Amendment DCL, supra note 225.

379 Id.

380 Id.

381 Id.
Peer-to-Peer Violence and Bullying 79

Amendment.‖382 ED provided similar guidance in its Revised Sexual Harassment Guidance

issued in January 2001.383

Addressing First Amendment implications of alleged discrimination under Title IX, 

including sexual harassment, ED explained:

Title IX is intended to protect students 

from sex discrimination, not to regulate the 

content of speech. OCR recognizes that the 

offensiveness of a particular expression as 

perceived by some students, standing 

alone, is not a legally sufficient basis to 

establish a sexually hostile environment 

under Title IX. In order to establish a 

violation of Title IX, the harassment must 

be sufficiently serious to deny or limit a 

student‘s ability to participate in or benefit 

from the education program.384

The guidance advised that, ―in regulating the 

conduct of its students and its faculty ... a school 

must formulate, interpret, and apply its rules so as 

to protect academic freedom and free speech rights.‖385

Nevertheless, critics remain concerned. For instance, several advocates have expressed fear 

that anti-bullying policies could be used by schools and the federal government as a form of 

viewpoint discrimination. As Hiram Sasser, Director of Litigation at the Liberty Institute, 

explained, ―[t]he rights of students to express their views on issues, even from a religious 

 

382 Id.

383 See REVISED SEXUAL HARASSMENT GUIDANCE, supra note 220, at 22-23; see also Harassment/Bullying 

DCL, supra note 40, at 2 n.8 (referring to the REVISED SEXUAL HARASSMENT GUIDANCE for more information).

384 REVISED SEXUAL HARASSMENT GUIDANCE, supra note 220, at 22 (citations omitted).

385 Id.; see also id. (―For instance, while the First Amendment may prohibit a school from restricting the right of 

students to express opinions about one sex that may be considered derogatory, the school can take steps to 

denounce those opinions and ensure that competing views are heard. The age of the students involved and the 

location or forum may affect how the school can respond consistently with the First Amendment.‖).

[W]hat is really at issue 

here, is are we going to 

use the government to 

stamp out thoughts and 

beliefs and speech with 

which the government 

disagrees?

Hiram Sasser,

Liberty Institute

(Briefing Transcript, p. 126)
80 Additional Concerns Related to the Federal Response

viewpoint, are clearly established in the law.‖386 They worried that schools might use antibullying policies to unconstitutionally prevent students from expressing their beliefs on 

issues such as the morality of homosexuality, and that such school practices could be 

exacerbated by expansive federal intervention. Mr. Sasser, for instance, noted several recent 

court cases involving schools disciplining students for religious expression at school.387 He

said that, ―what is really at issue here, is are we going to use the government to stamp out 

thoughts and beliefs and speech with which the government disagrees.‖388 Roger Clegg, 

likewise, said, ―I think that part of what‘s going on here, 

part of what‘s being pushed, is an agenda that seeks to use 

the power of the federal government to vilify and 

marginalize people who believe that gay sex is a sin. And 

they don‘t want that kind of thought to go unpunished.‖389

Mr. Sasser worried, similarly, that anti-bullying policies can 

be a form of government indoctrination,390 and that they 

may be used by schools to intimidate and harass religious 

students.391

In response to these critiques, several advocates disagreed that the bullying and harassment 

addressed in ED‘s Dear Colleague Letter—or even in this report by the Commission—

involved constitutionally protected speech; they believed that the viewpoint-discrimination 

 

386 Sasser Statement, supra note 371, at 12; see also id. (―It is incumbent upon the Commission to review court 

decisions confirming that censorship of disfavored speech, including religious speech, is no solution and can 

actually increase tension within the schools rather than addressing any perceived problems.‖).

387 See id. at 6-11.

388 Briefing Transcript, supra note 7, at 126:15-18 (Sasser Testimony).

389 Id. at 125:18-23 (Clegg Testimony); see also id. at 124:12-18 (Eastman Testimony) (―It is a very dangerous 

slope to head down, on such a contested issue as this, to basically tell people that, if you engage in such speech, 

that some people might interpret as harassment because you don‘t like the lifestyle or the conduct or what have 

you, that will then lead to federal intervention ....‖).

390 See Sasser Statement, supra note 371, at 15-16 (―Advocates for more aggressive federal intervention to 

prevent bullying have also called for system-wide indoctrination of students to counteract a perceived antihomosexual climate. Such system-wide indoctrination will only worsen matters for the religious liberty and free 

speech rights of students and will lead to further attempts to stop religious thought and expression by students.‖) 

(citation omitted); see also id. at 3 (―The First Amendment protects everybody from forced government 

indoctrination, even if some, or even many, perceive such indoctrination to be good.‖).

391 See id. at 11-12 (―Unfortunately, unconstitutional censorship of student speech is commonplace in public 

schools, and school officials particularly target students expressing statements that advance or comment upon 

religious issues.‖) (citation omitted); see also id. at 6-13.

[T]he words faggot and 

dyke are not part of any 

religious creed. And 

harassment and assault 

are crimes. 

Eliza Byard, GLSEN

(Briefing Transcript, p. 91)
Peer-to-Peer Violence and Bullying 81

arguments were essentially a red herring.392 ―Let me be very clear here,‖ said Eliza Byard, 

the words faggot and dyke are not part of any religious creed. And harassment and assault are 

crimes.‖393 Ms. Byard elaborated that bullying and harassment involves ―behavior, not 

belief,‖394 and ―ugly speech ... [does] not unto [itself] constitute bullying or harassment. ... 

There is a context.‖395 She further noted that, on the state level, a definition for bullying and 

harassment has emerged that ―includes the concept that the student has a reasonable fear of 

physical harm, as a result of what they are facing, and even a word as ugly as faggot or dyke 

... has to be used in a context where it produces that expectation in a student in order to 

constitute bullying, or to constitute harassment.‖396

Other panelists agreed with Ms. Byard‘s assessment. For example, Professor Ilan Meyer, of 

Columbia University, explained:

[N]othing in my testimony [and in others‘ testimony] is about speech at 

all. What I was talking about is about schools supporting affirmatively a 

gay student ... against the types of evidence that I have quoted about 

being injured, about physical assault, about rape, about being 

threatened, about having their property stolen, about being threatened 

with a knife or a weapon. So these are not issues about whether 

somebody, as Mr. Clegg referred to before, one student thinking it‘s a 

sin and another student thinking that it‘s not a sin.397

Professor Gregory Herek, of the University of California, Davis, concurred:

[W]hat we are talking about is children and youth who aren‘t simply 

having a reasoned discussion or disagreeing about a philosophical or 

religious point. What we are talking about is kids who are feeling that 

their safety—that they are not safe. They are feeling that they are going 

to be subjected to physical violence and in fact sometimes have been 

 

392 See, e.g., Public Comment of Lambda Legal, at 6-9, May 12, 2011, available at

http://www.eusccr.com/Lambda%20Legal.pdf (last visited Sept. 19, 2011) (distinguishing between ―negative or 

discomforting viewpoints‖ and epithets, crude words, and ―harassing, intimidating or threatening speech 

directed at specific students‖); id. at 3 (―[Student] speech has bounds, especially when it truly—not 

speculatively—disrupts a school‘s functioning or interferes with the rights of other students to secure the full 

range of educational advantages and benefits that are their due.‖).

393 Briefing Transcript, supra note 7, at 91:16-18 (Byard Testimony); see also supra text accompanying note 

373.

394 Briefing Transcript, supra note 7, at 136:8 (Byard Testimony).

395 Id. at 136:20-22 (Byard Testimony).

396 Id. at 137:2-9.

397 Id. at 127:11-25 (Meyer Testimony).
82 Additional Concerns Related to the Federal Response

subjected to physical violence, and that this is something that pervades 

their life. ... [T]his is something that often ends up being very pervasive 

and it‘s something that confronts them on a frequent basis, sometimes 

on a daily basis, and so that just requires huge amounts of psychological 

resources to respond to.398

Responding to these assertions that bullying and harassment are not constitutionally 

protected speech, Professor Eugene Volokh, of UCLA School of Law, disagreed: 

I wish that were true, but it seems to me that if you look at what the actual 

material—for example, the Dear Colleague Letter from the Department of 

Education says, it really is in considerable measure about speech. That what is 

labeled bullying and harassment are capacious enough to include speech, 

including speech that is protected by the First Amendment .... [I]f you look at 

the Dear Colleague Letter, it specifically talks about how harassment was 

defined to include verbal acts. That‘s lawyer speak for speech or 

statements.399

Professor Volokh expressed further concerns regarding the risk of over breadth of antibullying and anti-harassment policies generally. Noting that a ―school might have 

considerable constitutional authority to restrict such speech if the specific statements pose a 

substantial risk of materially disrupting the school,‖400 he warned, there is ―[n]o categorical

 ̳harassment exception‘ to the First Amendment.‖401

 

398 Id. at 146:2-147:12 (Herek Testimony). See also id. at 102:3-103:3 (Meyer Testimony):

We are not talking about ... as some of the panelists characterized it, as something like 

teasing or saying things. [These children] suffer from persistent, chronic, day-in and day-out, 

harassment, intimidation, things that, from a stress perspective, require immense adaptation if 

they are to sustain themselves in that environment. ... So this is not minor events, not minor 

teasing and it is not about freedom of speech. This is about making the environment 

completely intolerable for these kids and that is why they suffer from these types of outcomes 

that I described before.

399 Id. at 262:15-263:2 (Volokh Testimony); see also id. at 297:18-25 (―Sometimes the claim is  ̳this is conduct, 

not speech,‘ even though the conduct consists of verbal acts, which is another way of saying speech. Sometimes 

the claim is  ̳it‘s harassment and not speech,‘ even though if you label speech sedition or harassment or 

intentional infliction of emotional distress, that doesn‘t strip it of constitutional protection.‖).

400 Volokh Statement, supra note 371, at 2 (citing Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969)).

401 See id. at 2 (quoting Saxe v. State College Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001) (Opinion of thenJudge Alito) (―[T]he free speech clause protects a wide variety of speech that listeners may consider deeply 

offensive, including statements that impugn another‘s race or national origin or that denigrate religious beliefs. 

When laws against harassment attempt to regulate oral or written expression on such topics, however detestable 

the views expressed may be, we cannot turn a blind eye to the First Amendment implications .... [W]hen antidiscrimination laws are  ̳applied to ... harassment claims founded solely on verbal insults, pictorial or literary 

matter, the statute[s] impose content-based, viewpoint-discriminatory restrictions on speech.‖)); see also 

Negrón Statement, supra note 308, at 10-11 (discussing constitutional limitations for disciplining students for 

on-campus, non-school sponsored speech); but see infra notes 406-412.
Peer-to-Peer Violence and Bullying 83

He asserted: A policy that threatens students with disciplinary action for [speech that creates 

a ―hostile or offensive environment‖] is likely to deter a good deal of speech that speakers 

think might be found by the [school] administration to create a ―hostile or offensive 

environment,‖ and not just speech that is indeed ultimately found (after protracted litigation) 

to actually create a hostile or offensive environment.402

Professor Volokh also suggested that a First 

Amendment conflict could exist with respect to the 

Dear Colleague Letter‘s definition of harassment, 

which does not require the conduct to be directed at 

a specific target or involve repeated incidents.

According to Professor Volokh, ―This means that 

political or religious statements ... could be treated

as  ̳harassment‘ if they are seen as  ̳severe‘ enough 

by an administrator, or if they aren‘t even severe but 

are seen as  ̳pervasive‘ or persistent.‖403

Even if the federal government only focuses on 

harassment that is ―the most egregious‖ and that 

usually includes violence, Professor Volokh noted, 

ED and DOJ ―also seek[] school policies that are 

much broader than the particular cases that are the 

most egregious cases,‖ and urge schools to stop harassment before it becomes ―egregious.‖404

If ―you put all this together,‖ he reasoned, ―there‘s a hard to deny First Amendment 

problem.‖405

Some public commenters, however, have downplayed many of the First Amendment 

concerns expressed by Professor Volokh and others where the harassment in question, for 

 

402 Volokh Statement, supra note 371, at 3 (emphasis in original).

403 See id. at 5-6; see also Briefing Transcript, supra note 7, at 297 (Volokh Testimony).

404 See Briefing Transcript, supra note 7, at 267:9-19 (Volokh Testimony).

405 Id. at 267:19-21.

[M]y worry is that with 

letters like this ... that do not 

really acknowledge the First 

Amendment issue and don’t 

chart out through examples 

and specific exclusions what 

kind of speech should be 

protected, the inevitable 

effect is that there will be 

substantial deterrence of 

constitutionally protected 

speech.

Eugene Volokh,

UCLA School of Law

(Briefing Transcript, pp. 298-99)
84 Additional Concerns Related to the Federal Response

instance, disrupts a school‘s educational environment, or is discriminatory.406 Dean Erwin 

Chemerinsky, of the University of California, Irvine School of Law, stated in a Public 

Comment that ―[t]he line between protected speech and harassment ... is not settled with 

regard to schools,‖407 and where tension does exist, ―courts are very likely to defer to the 

judgment of school officials as to how to best educate their students.‖408 He reasoned:

Schools may prohibit all conduct, including speech, that constitutes 

harassment or threats on the basis of characteristics such as race, gender, 

religion, and sexual orientation. The more speech is simply the expression of 

ideas, even offensive ideas, the greater the likelihood that it is protected by the 

First Amendment. However, courts recognize the need for schools to protect 

their students from harassment and courts are thus likely to be very deferential 

to school officials in deciding when speech is harassment or threats that can 

be prohibited and punished. Those who advise the Commission of greater 

limits on schools, such as in some of the testimony the Commission received, 

are expressing their views about what they want the law to be; they are not 

describing the law as it exists.409

Similarly, Professor Stuart Biegel, of UCLA Graduate School of Education & Information 

Studies and UCLA School of Law, stated that ―[local] [e]ducation officials have broad power 

[under the First Amendment] to restrict expressive activity that is reasonably likely to lead to 

 

406 See, e.g., GLAAD Comment, supra note 91, at 2 (―[Based on Supreme Court precedent], speech posing the 

threat of disruption, speech considered offensive or indecent, and speech contrary to the basic educational 

mission of a school can all be controlled [in schools]. Bullying of one student by another, in any context, falls 

into all three of the above categories.‖); Public Comment of National Center for Lesbian Rights, at 3, May 9, 

2011, available at http://www.eusccr.com/NCLR%20USCCR%20Briefing%20Peer-toPeer%20Violence%20(jurisdiction).pdf (last visited Sept. 15, 2011) (―The [Supreme] Court has repeatedly held 

that anti-discrimination laws, including prohibitions of harassment, are valid under the First Amendment, 

because such laws are primarily aimed at the act of discrimination, not speech.‖) (emphasis in original) (citing 

Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 572 (1995); Wisconsin v. 

Mitchell, 508 U.S. 476, 487 (1993); R.A.V. v. City of St. Paul, 505 U.S. 377, 390 (1992); Hishon v. King & 

Spalding, 467 U.S. 69, 78 (1984); Runyon v. McCrary, 427 U.S. 160, 176 (1976); Rumsfeld v. Forum for 

Academic & Institutional Rights, Inc., 547 U.S. 47 (2006)); id. at 4-5 (―Anti-discrimination laws prohibit 

harassment because harassing behavior in schools or workplaces creates a hostile environment that can deprive 

targeted individuals of the opportunity to participate equally just as effectively as being excluded outright .... It 

is well settled that these prohibitions on harassment, long required by federal law and enforced by the courts, do 

not violate the First Amendment.‖); Anti-Defamation League Statement, supra note 31, at 9 (―There is a high 

bar before any speech or conduct can amount to legally recognizable harassment. Nevertheless, conduct that 

threatens, harasses or intimidates particular Jewish students to the point that their ability to participate in and 

benefit from their college experience is impaired should not be deemed unactionable simply because that 

conduct is couched as  ̳anti-Israel‘ or  ̳anti-Zionist.‘‖). 

407 Public Comment of Erwin Chemerinsky, Dean, Univ. of Cal., Irvine Sch. of Law, at 2, May 23, 2011, 

available at http://www.eusccr.com/Chemerinsky%20-%20KTolhurst%20Ltr%20011-0523.pdf (last visited 

Sept. 15, 2011).

408 Id. at 4.

409 Id. at 3.
Peer-to-Peer Violence and Bullying 85

material and substantial disruption or to interference with the rights of others.‖410 He noted 

that the 7th Circuit has recently ―affirmed the right of school officials to draw reasonable 

boundaries in this area, and ... rejected the notion that First Amendment absolutist arguments 

should be controlling in a K-12 education setting‖411 with respect to school-climate policies.

Professor Biegel quoted an opinion by Judge Richard Posner at length:

―Severe harassment ... blends insensibly into bullying, intimidation, and 

provocation, which can cause serious disruption of the decorum and peaceable 

atmosphere of an institution dedicated to the education of youth. School 

authorities are entitled to exercise discretion in determining when student 

speech crosses the line between hurt feelings and substantial disruption of the 

educational mission, because they have the relevant knowledge of and 

responsibility for the consequences.‖412

In addition to these broad concerns, Professor Volokh and others were also troubled by the 

Dear Colleague Letter‘s suggestion that anti-bullying and anti-harassment policies should 

apply to interactions and statements that occur off-campus, including via email, websites, or 

social-networking sites.413 Describing such policies as ―attempt[s] at 24-7 control of student 

 

410 Public Comment of Stuart Biegel, Univ. of Cal., L.A. Graduate Sch. of Educ. and Info. Studies & Sch. of 

Law, at 3, May 18, 2011, available at http://www.eusccr.com/Biegel,%20USCCR%20Statement%2051811.pdf

(last visited Sept. 15, 2011) [hereinafter Biegel Comment]; see also Public Comment of Am. Civil Liberties 

Union, at 6, May 27, 2011, available at

http://www.aclu.org/files/assets/aclu_comments_to_the_usccr_on_bullying_violence_and_harassment_2.pdf

(last visited Sept. 9, 2011) (―A school may not single out speech for disfavored treatment simply because it 

disagrees with the viewpoint expressed by the student. But when something about the speech other than its 

viewpoint becomes invasive of the rights of others, schools have the constitutional authority to act.‖).

411 Biegel Comment, supra note 410, at 4.

412 Id. at 5 (quoting Zamecnik v. Indian Prairie Sch. Dist. #204, 636 F.3d 874 (7th Cir. 2011); see also Nuxoll v. 

Indian Prairie Sch. Dist. #204, 523 F.3d 668, 671(7th Cir. 2008) (Posner, J.) (―A heavy federal constitutional 

hand on the regulation of student speech by school authorities would make little sense. The contribution that 

kids can make to the marketplace in ideas and opinions is modest and a school‘s countervailing interest in 

protecting its students from offensive speech by their classmates is undeniable. ... People are easily upset by 

comments about their race, sex, etc., including their sexual orientation, because for most people these are major 

components of their personal identity—none more so than a sexual orientation that deviates from the norm. 

Such comments can strike a person at the core of his being.‖); id. at 674-75 (―[H]igh-school students are not 

adults, schools are not public meeting halls, children are in school to be taught by adults rather than to practice 

attacking each other with wounding words, and school authorities have a protective relationship and 

responsibility to all the students.‖).

413 See Volokh Statement, supra note 371, at 3-5; Negrón Statement, supra note 308, at 8-9 (―If schools are to 

be held accountable for all bullying behavior that may constitute harassment under federal civil rights laws, 

including that which takes place in cyberspace but makes its way onto campus overtly or by effect, schools will 

understandably feel the need to patrol electronic communications by students.‖); id. at 9 (―The current 

confusion among courts as to what off-campus behavior can be regulated by schools, combined with the OCR 

enforcement position, results in an untenable expectation that schools police off-campus online behavior while 

ultimately facing liability for conduct over which they have no control.‖).
86 Additional Concerns Related to the Federal Response

speech,‖414 Volokh reasoned, ―[A]ny restrictions on off-campus speech ... would pose 

especially serious constitutional problems—and, in my view, would be unconstitutional—

even if the [school] administration argues that they are  ̳severe or pervasive‘ enough to create 

an on-campus  ̳hostile or offensive environment.‘‖415

ED, in response to such concerns related to off-campus conduct, has asserted that the Dear 

Colleague Letter does not implicate the First Amendment in this way:

[T]he [Dear Colleague Letter] notes that there are many remedial measures 

that schools can employ to respond to harassment that cannot be resolved by 

discipline or otherwise prevented. In some such cases, a school may be able to 

effectively remedy a hostile environment by, for example, making available 

counseling services and resources, and educating the school community on 

civil rights laws and expectations of tolerance—all of which do not implicate 

the First Amendment.416

It is clear that the constitutionality of a given school‘s anti-bullying or anti-harassment policy 

is complicated, heavily fact-driven, and situation-specific.

417 But for this reason, Professor

Volokh concluded that, on First Amendment issues, ED‘s Dear Colleague Letter is 

confusing. He did not believe that its mention of the First Amendment in a footnote or 

reference to prior guidance ―suffice[d] to limit the scope of the proposed restrictions, or 

clarify their vagueness.‖418 Instead, he said, the footnote is ―not terribly helpful to school 

districts ... if they need to know what exactly it is that they should be protecting under the 

First Amendment.‖ Professor Volokh explained:

They‘re generally not lawyers. Here they have this long letter with all of these 

examples of mostly conduct, physical violence, that needs to be restricted but 

also with statements, well, yes, analogous kinds of speech should be 

restricted, too, and occasional general references to things posted on websites 

and so on and so forth.419

 

414 Briefing Transcript, supra note 7, at 265:23-24 (Volokh Testimony).

415 See Volokh Statement, supra note 371, at 5.

416 Ali Letter to Negrón, supra note 315, at 8.

417 See, e.g., Nuxoll, 523 F.3d at 675-76 (upholding a school policy that forbids identity-based derogatory 

comments generally, but holding that a specific t-shirt that says ―Be Happy, Not Gay‖ —a ―tepidly negative‖ 

statement—does not provoke harassment or poison the educational atmosphere).

418 Volokh Statement, supra note 371, at 6.

419 Briefing Transcript, supra note 7, at 298:7-18 (Volokh Testimony).
Peer-to-Peer Violence and Bullying 87

He continued:

[The Dear Colleague Letter contains] no meaningful examples of ―Here are 

things that you shouldn‘t be restricting‖ or ―Here are things that whether or 

not you should be restricting we don‘t mean to cover.‖ ―Here are the kinds of 

political or religious or social or personal commentary on campus or off 

campus that should be protected.‖ It just is not offering any real guidance to 

the school districts. ...420

... [W]hen there‘s a very big hammer out there, the threat of federal 

investigation, then that has a disproportionate impact—as opposed to perhaps 

a threat of a civil lawsuit for vindication of First Amendment rights. So my 

worry is that with letters like this, approaches like this, that do not really 

acknowledge the First Amendment issue and don‘t chart out examples and 

specific exclusions of what kind of speech should be protected, the inevitable 

effect is that there will be substantial deterrence of constitutionally protected 

speech.421

While reasonable minds differ on the precise limits of the First Amendment, detailed 

guidance could indeed be useful to schools as they develop their anti-bullying policies.

 

420 Id. at 298:14-21.

421 Id. at 299:4-14; see also Public Comment of Student Press Law Ctr., at 3, May 27, 2011, available at

http://www.splc.org/pdf/bullying_comments.pdf (last visited Sept. 9, 2011) (―The DOE guidance begs the 

question when and how the Department envisions schools punishing speech that has not reached the level of 

threatening or harassing behavior. Without better guidance, the directive that schools are to take affirmative 

steps to prevent bullying—to include the use of disciplinary sanctions—is an invitation for schools to 

 ̳preventatively‘ punish speech that has not yet exceeded the boundaries of constitutional protection and may 

never do so.‖).
Findings and Recommendations 88

FINDINGS AND RECOMMENDATIONS

Findings

1. Bullying and harassment, including bullying and harassment based on sex, race, national 

origin, disability, sexual orientation, or religion, are harmful to American youth.

[Commissioners Castro, Thernstrom, Achtenberg & Yaki voted in favor; Commissioners 

Gaziano, Heriot & Kirsanow voted against; Commissioner Kladney abstained.]

2. Current federal civil rights laws do not provide the U.S. Department of Education with 

jurisdiction to protect students from peer-to-peer harassment that is solely on the basis of 

religion.

[Commissioners Castro, Thernstrom, Achtenberg & Yaki voted in favor; Commissioners 

Gaziano, Heriot & Kirsanow voted against; Commissioner Kladney abstained.]

3. Current federal civil rights laws do not protect students from peer-to-peer harassment that 

is solely on the basis of sexual orientation.

[Commissioners Castro, Thernstrom, Achtenberg & Yaki voted in favor; Commissioners 

Gaziano, Heriot & Kirsanow voted against; Commissioner Kladney abstained.]

Recommendations

1. The U.S. Departments of Education and Justice should track their complaints/inquiries 

regarding peer-to-peer harassment separately from complaints/inquiries regarding staffto-student harassment.

[Commissioners Castro, Thernstrom, Achtenberg & Yaki voted in favor; Commissioners 

Gaziano, Heriot, Kirsanow & Kladney abstained.]

2. The U.S. Departments of Education and Justice should track their complaints/inquiries 

regarding sexual harassment or gender-based harassment by creating a category that 

explicitly encompasses LGBT youth.

[Commissioners Castro, Thernstrom, Achtenberg & Yaki voted in favor; Commissioners 

Gaziano & Heriot voted against; Commissioners Kirsanow & Kladney abstained.]

3. The U.S. Departments of Education and Justice should track complaints that they receive 

regarding harassment based solely on sexual orientation that are closed for lack of 

jurisdiction.
Findings and Recommendations 89

[Commissioners Castro, Thernstrom, Achtenberg, Gaziano, Heriot, Kirsanow, Kladney & 

Yaki voted in favor.]

4. The U.S. Department of Education should track complaints that it receives regarding 

harassment based solely on religion that are closed for lack of jurisdiction.

[Commissioners Castro, Thernstrom, Achtenberg, Gaziano, Heriot & Yaki voted in favor; 

Commissioners Kirsanow & Kladney abstained.]

5. The U.S. Department of Education should consider issuing a new Dear Colleague Letter 

regarding the First Amendment implications of anti-bullying policies. The new Letter 

should provide concrete examples to clarify the guidance that the Department of 

Education previously provided in its Dear Colleague Letter on the First Amendment 

dated July 28, 2003.

[Commissioners Castro, Thernstrom, Achtenberg & Yaki voted in favor; Commissioners 

Gaziano, Heriot & Kirsanow voted against; Commissioner Kladney abstained.]

6. The U.S. Department of Education should strive to use consistent language when it 

articulates legal standards, such as its enforcement standards, in its Dear Colleague 

Letters and guidance documents. When the Department of Education uses different, even 

if consistent, terms in its Dear Colleague Letters and guidance documents, it should 

explain the reasoning behind its use of different wording.

[Commissioners Castro, Thernstrom, Achtenberg, Gaziano, Heriot, Kirsanow, Kladney & 

Yaki voted in favor.]
90 Commissioner Statements and Rebuttals

COMMISSIONER STATEMENTS AND REBUTTALS

STATEMENT OF CHAIRMAN MARTIN R. CASTRO

 

"Bullying can have destructive consequences for our young people and it's not something 

we have to accept. As parents and students, as teachers and members of the community, we 

can take steps—all of us–to help prevent bullying."

--President Barack Obama

March 2011

Introduction

President Obama is right: We all can do something to prevent the destructive consequences 

of bullying. That is why I am proud that this briefing on ―Peer-to-Peer Violence and 

Bullying‖ is the first briefing I conducted as Chair of the Commission. As I said at the 

briefing, this is an extremely important issue for us all. Every one of us has children in our lives 

that we love and care for, whether they are our own children, grandchildren, nieces, nephews, 

students, godchildren, or neighbors. We all want those children to have safe, happy, and long 

lives and reach their full potential. Not only is this a personal desire, but I also believe it is a 

civil and human right. 

As I also stated at the briefing, I know that each of us, regardless of our Party affiliation or our 

political ideology, wants to have communities and schools that are safe for our children, 

regardless of their race, national origin, sex, religion, disability status or sexual orientation. 

Where we may differ is how to accomplish that goal. I hope that this Statutory Enforcement 

Report is viewed as a constructive contribution to the discussion on how our Constitution and 

laws do and should protect the most vulnerable among us—our children.

I want to thank our staff, especially our Office of the General Counsel, for their extraordinary 

work in the organization of the briefing and the preparation of our Report. I also wish to 

commend my fellow Commissioners for the bi-partisan manner in which we conducted the 

briefing and for the fact that we were even able to promulgate some findings and 
Statement of Chairman Martin R. Castro 91

recommendations unanimously. I also wish to thank our distinguished panelists and all of those 

individuals and organizations that provided voluminous written testimony to the Commission. 

While every submission may not be included in the Report, every submission was important to 

our effort to address this important issue. 

I am very proud of the Report. This Statement will highlight some points I consider to be of 

special importance.

Why Is the Commission Concerned About Peer-to-Peer Violence and Bullying?

When student violence, harassment or bullying is motivated by race, national origin, religion, 

disability, gender, gender identity and gender stereotypes, it falls within the Commission‘s 

mandate to shine a light on the issue in an effort to remedy the wrong. As the Third Circuit 

Court of Appeals said in the Sypniewski case, ―there is no constitutional right to be a bully.‖1

While the Report contains a ―disclaimer‖ that some ―critique the usefulness or accuracy‖ of data 

presented by state and federal agencies, academics and interests groups about the scope of the 

bullying problem, there can be no doubt that what is being reported in the data is real—that our 

youth are being bullied on the basis of race, national origin, disability, gender, religion, or sexual 

orientation. Whether the number of students is in the tens of thousands or hundreds of thousands 

is certainly fertile ground for further empirical studies, but no one should be able to deny that 

this is a problem in the United States. 

During our briefing, in the written submissions, and in virtually daily news accounts, we see 

uncontroverted evidence that American youth are being bullied, harassed and having violence 

perpetrated against them by their peers, in whole or in part, because of their membership or 

perceived membership in certain protected or demographic classes. When that happens, I 

believe the Federal government has an important role to play. I applaud the U.S. Departments of 

Justice and Education for their efforts to address these types of cases of bullying, violence and 

harassment. That is why I also am a strong proponent of giving them the additional jurisdiction 

 

1

Sypniewski v. Warren Hills Reg. Bd. of Educ., 307 F.3d 243,264 (3d Cir. 2002).
92 Peer-to-Peer Violence and Bullying 

they need to fully address the instances of the type of conduct that infringe on students‘ 

Constitutional rights to life, liberty and happiness. 

While there are 45 states with anti-bullying laws, the current state-level anti-bullying laws 

neither protect all students nationwide nor provide all students with equal and consistent 

levels of protection from state to state. As our Report points out, existing federal laws leave 

loopholes that do not protect students who are being bullied solely because of their religion 

or sexual orientation. Therefore, I believe Congress should enact and the President should 

sign into law both the Safe Schools Improvement Act and the Student Non-Discrimination 

Act. In addition, Congress should amend Title VI to prohibit discrimination on the basis of 

religion and the President should sign such a bill into law. These laws will close loopholes 

and give federal agencies the tools they need to fully and equally protect students when and 

where state laws or school districts can‘t or won‘t.

A Comprehensive, Consistent Approach Is Needed

However, we cannot merely legislate and litigate these issues away. We must also educate and 

train. Only through a holistic approach can we ever hope to overcome the destructive 

consequences of peer-to-peer violence, harassment and bullying. 

That‘s why I support the thoughtful recommendations of organizations such as the American 

Bar Association (―ABA‖), the National Education Association (―NEA‖), the Anti-Defamation 

League, and others, which call for the regular training of administrators, teachers and students in 

how to identify and respond to instances of bullying.

I applaud the NEA for providing free anti-bullying training through its National Bullying and 

Sexual Harassment Prevention and Intervention Program and for incorporating anti-bullying 

strategies into its school transformation campaign. 
Statement of Chairman Martin R. Castro 93

Furthermore, as the ABA points out in its Report in support of its anti-bullying Resolution of 

February 14, 2011:

―Effective anti-bullying programs are known to include the following:  ̳target 

known risk factors in youth violence; involve youth, parents, teachers and 

community members; monitor the implementation of the program components; 

use culturally-relevant, gender-specific and developmentally appropriate 

strategies; establish high standards and expectations for staff and participants; and 

provide comprehensive and ongoing interventions.‘‖2

I also agree with the ADL‘s recommendation regarding the interrelationship of the enforcement 

of anti-bullying efforts and the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention 

Act.3

This type of comprehensive approach, coupled with strong federal anti-bullying protections will 

help to holistically begin to address this problem.

Culturally and Linguistically Appropriate Protections for Limited English Proficient Persons

It is difficult enough to discern whether your child is the victim of bullying, harassment or 

violence at school, let alone know what your rights are and how to navigate the system to 

enforce them and protect your child. Now imagine trying to do all of this with limited 

English language proficiency and/or cultural barriers. In addition, students with language 

barriers may also find it more challenging to report incidents of bullying, harassment or 

violence, or suffer a chilling effect in reporting these situations to a school system that is not 

linguistically or culturally accessible. For example, as Ms. Helen Gym of Asian Americans 

United testified at our briefing regarding the violence perpetrated against Asian students in 

Philadelphia: ―Staff members... failed to investigate reported complaints, or worse, refused to 

 

2 American Bar Association Resolution and Report, Feb. 14, 2011, at 6 (quoting from Jeffrey M. Jenson & 

Matthew O. Howard, Causes and Prevention of Youth Violence, 77 DENV. U. L. REV. 629 (2000)), available at 

http://www.americanbar.org/groups/child_law/projects_initiatives/bullying.html. 

3

―The Justice Department and the FBI should work collaboratively with civil rights and community-based 

groups and law enforcement organizations to ensure comprehensive and effective implementation of the 

Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA), with particular attention to the new 

requirement that the FBI collect hate crime statistics committed by and against juveniles.‖ Anti-Defamation 

League Written Statement, at 15.
94 Peer-to-Peer Violence and Bullying 

file incident reports unless students spoke English to them, and who failed to call for translation 

assistance for concerned parents and families.‖4 Ms. Gym further testified, ―The district failed to 

translate documents or provide students and families with interpretation. Students reported that 

school security did not offer translation assistance to students who made complaints, and 

therefore, did not investigate them, or only heard the perspective of the English-speaking 

student.‖5

Therefore, school districts should provide to Limited English Proficient student victims and 

their families information in their respective languages about how to report incidents of 

violence, harassment and bullying, and how to enforce their rights under existing district 

policies and applicable state and federal laws. School districts should also make reasonable 

efforts to have spoken-language translators available to students and families to assist in this 

dissemination of information and in the accurate reporting of complaints of bullying, 

violence or harassment. It is not just enough to have bilingual staff. The staff must be trained

in interpretation and be knowledgeable about the anti-bullying policy of the school. As the 

ABA states in its report, ―Without taking into consideration the cultural and linguistic 

differences among youth, it is unlikely that any [anti-bullying] program will be successful.‖6

Neutrality Policies Are Anything But Neutral

―Neutrality‖ policies in schools require staff to take a neutral position when it comes to matters 

of sexual orientation in the school‘s curriculum. However, in practice, these neutrality policies, 

also known as Sexual Orientation Curriculum Policies, are being erroneously applied in areas 

beyond curriculum, with devastating results, as we heard from Tammy Aaberg. Ms. Aaberg was 

the mother of Justin, a 15 year old who committed suicide last year after experiencing bullying 

and harassment due to his sexual orientation. When it was reported to Justin‘s school, which had 

a neutrality policy, the school allegedly failed to take action because, as his mother testified, the 

neutrality policy ―confuses teachers and staff and they feel like their hands are tied, as they don't 

know what should or shouldn't be considered neutral. I believe this is what happened with the 

 

4 Briefing Transcript, at 164.

5

Id at 168.

6 ABA Resolution and Report, supra Note 1, at 6.
Statement of Chairman Martin R. Castro 95

Counselor. Once she heard the word gay, she didn't ask Justin's friend any further questions and 

I never received a phone call.‖7The results were tragic for the Aaberg family. We should not 

allow this tragedy to continue to be repeated in schools across the country. 

While Ms. Aaberg presented her story, the story of one family, of one child, that should not 

diminish the impact of her request for help for other children like Justin who are persecuted 

solely because of their sexual orientation. Or for that matter, for other students who are also 

bullied, harassed and have violence perpetrated against them because of their race, national 

origin, gender, disability or religion. Therefore, school districts should rescind these neutrality 

policies that lead to instances of bullying, harassment and violence going unaddressed.

I was very moved by Ms. Aaberg‘s testimony about the loss of her son. I believe her words best 

summarize why we must take every step possible to ensure that existing laws are enforced fully, 

and new laws enacted to protect ALL of our children:

―These children are dead, my son is dead. Justin is gone from this earth and I will 

never be able to give him a hug, see his smile, hear his beautiful Cello playing or 

tell him I love him. Because some people believed he deserved fewer protections 

than others. All of these children and too many others across the country all died too 

young as a result of bullying and harassment.‖8

It is time for us to make certain that our Constitution and laws are interpreted and enforced in a 

manner that provides the necessary protections against bullying, harassment and violence 

inflicted on students on the basis of their race, national origin, gender, disability religion or 

sexual orientation—for all of our children‘s sake.

 

7 Briefing Transcript, at 243.

8

Id at 245-6.
96 Statement of Vice Chair Abigail Thernstrom

STATEMENT OF VICE CHAIR ABIGAIL THERNSTROM

DATA

I am disturbed by the self-reported nature of the data presented in this report. 

Perceptions of discrimination are not reality. Of course the testimony of people who believe 

they have been victims must be taken seriously, but it is essential to verify those claims. They 

do not accurately register the frequency of incidents unless we are willing to say, if you feel 

you have been bullied, you have been bullied.

In addition, the data upon which we relied were, in many cases, collected by 

advocacy organizations with a clear agenda; again, the numbers need verification. Some of 

these organizations characterize conduct as ―harassment‖ that doesn‘t qualify as such under 

federal law. Readers should take definitional problems into account when looking at 

questions of how federal agencies enforce anti-harassment laws. 

SCHOOL CULTURE

Before moving on to other concerns I have with the report, I should say, as a 

preliminary matter, that I do not believe that controlling unacceptable student behavior in 

schools is – as the cliché runs – rocket science. I have spent much time in both orderly and 

disorderly schools. In those that are well run and have a culture truly devoted to education, 

no student even thinks of harassing peers or teachers – the latter often being a serious 

problem. The inmates do not run the asylum where there are clear messages about who is in 

charge, and about acceptable and unacceptable behavior. In orderly, disciplined schools, 

there is no running in the halls, fights between students, disrespectful language used in 

talking to other students or to teachers.

The secret to creating such schools is very simple: The messages about expectations 

with respect to behavior and language are communicated by every teacher in every setting, 

and by administrators as well. No principal locks himself or herself behind a closed door, 
97 Statement of Vice Chair Abigail Thernstrom

letting bedlam occur out of sight and thus out of mind. Students face consequences when 

they are late to school, when food is thrown in the lunchroom, when they dress in a slovenly 

manner, when they use their fists to settle disagreement, and when their language violates 

rules of respect and self-respect. Slovenly language and slovenly dress are like James Q. 

Wilson‘s famous ―broken windows‖ in a city. If not repaired, they send a signal that no one 

cares about disorder, and that signal is a slippery slope to a community in which fear is everpresent.

Why don‘t more schools – particularly those in the inner city – fit the description 

above? In too many schools, civility is not regarded as integral to education. It should be seen 

as equally, if not more important, than the three Rs. A student‘s employment prospects in life 

will depend on it. And yet often teachers and administrators with whom I have discussed the 

importance of a school culture tell me that they would be imposing middle class values on 

their students if they listened to me – although ―middle class‖ jobs are precisely that they 

should be making their disadvantaged students eligible for.

A FEDERAL FIX?

School culture is something that only schools can set. Values cannot be imposed from 

above or outside. It is very difficult to see how the federal government can play a major role 

in stopping bullying in hundreds of thousands of schools across the land. As one of our 

witnesses, Dr. John Eastman testified, 

There are lots of problems in society that are beyond the authority of 

the national government to address. The kinds of interactions between 

children on school playgrounds that have existed since we had schools 

would seem to be near the top of the list. And even if we could find 

constitutional authority for the federal government to intervene in this 

quintessentially local setting, do we really think that bureaucrats in 

Washington, D.C. should be crafting a national, one-size-fits-all policy 

on how to manage the interactions of children on the playground?1

 

1 Eastman, Dr. John, C., Prepared Testimony submitted to USCCR May 13, 2011, page 1. Available online at 

―http://www.eusccr.com/7. John Eastman, Chapman University School of Law.pdf‖
Peer-to-Peer Violence and Bullying 98

FIRST AMENDMENT ISSUES 

Witnesses at the briefing explored other important issues. For instance I have First 

Amendment concerns that would arise with federal intervention regulating student speech, 

even when that speech is perceived as harassment. Here is an issue on which perhaps there 

can be consensus. I hope we can all agree that ―a school must formulate, interpret, and apply 

its rules so as to protect academic freedom and free speech rights,” as the OCR Guidelines 

of January 19, 2001 stated. 2

In addressing the First Amendment question, panelist Eugene Volokh cited the 

Supreme Court‘s Davis v. Monroe County Board of Education decision3that ―suggests that 

Title IX (and, by extension, Title VI) [did] require schools to ban certain forms of 

harassment.‖ It was a case, however, that involved ―physical touching and unwanted vulgar 

sexual references,‖ he noted. Prof. Volokh was thus not sure ―its holding would apply in a 

case based on politically or religiously themed speech.‖ Moreover, he noted, ―liability could 

only be imposed ―where the behavior [was] so severe, pervasive, and objectively offensive 

that it denie[d] its victims the equal access to education . . .‖ Volokh concluded: 

schools should be encouraged to craft policies in terms such as these, rather 

than using terms such as ―bullying,‖ ―harassment,‖ or the creation of a 

―hostile or offensive environment‖ through ―severe or pervasive‖ conduct.4

RELIGION

While the scope of our report included student-on-student harassment and bullying 

based on religion, Congress has not enacted legislation to prohibit religious discrimination in 

programs and activities which receive federal funds such as public schools and colleges. Title 

VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, and national 

 

2 U.S. Department of Education Office of Civil Rights, ―Revised Sexual Harassment Guidance: Harassment of 

Students by School Employees, Other Students, or Third Parties,‖ January 2001, at page 22. Available online at: 

http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf (last visited 8/15/2011).

3

526 U.S. 629 (1999).

4 Eugene Volokh prepared statement to the Commission 5/12/2011, p. 8. Available online at 

―http://www.eusccr.com/27. Eugene Volokh, UCLA School of Law.pdf‖
99 Statement of Vice Chair Abigail Thernstrom

origin. Subsequent legislation also prohibits discrimination based on sex, disability, and age. 

But there is no law prohibiting religious discrimination by recipients of federal funds.

However, over the years OCR has issued policy guidance regarding discrimination 

based upon shared ancestry or ethnic characteristics which may overlap or coincide with a 

victim‘s religious practices or beliefs. The most recent such guidance was contained in 

OCR‘s Oct. 26, 2010 ―Dear Colleague‖ letter: 

While Title VI does not cover discrimination based solely on religion, 

groups that face discrimination on the basis of actual or perceived 

shared ancestry or ethnic characteristics may not be denied protection 

under Title VI on the ground that they also share a common faith.5

Since this protection is articulated in a guidance document it may not survive changes 

in administrations, does not have the same force as law, and only indirectly protects against 

religious discrimination. Moreover, the discrimination must be based on ―perceived, shared 

ancestry or ethnic characteristics‖ of a religious group.6

Insofar as bullying and harassment based on enumerated protected characteristics is a 

problem requiring federal intervention in our local schools – and I‘m not certain that is the 

case – Congress might consider enacting legislation specifically prohibiting religious 

harassment and discrimination in federally funded education programs.

 

5 Russlynn Ali, Dear Colleague letter at p. 5, dated Oct. 26, 2010. Available online at 

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf (last visited 8/17/2011).

6

See, e.g., Ken Marcus, prepared statement to the Commission, 5/13/2011 at pp. 15, 16. Available online at 

―http://www.eusccr.com/15. Kenneth L. Marcus, Institute for Jewish & Community Research.pdf‖
100 Statement of Commissioner Roberta Achtenberg 

Statement of Commissioner Roberta Achtenberg 

INTRODUCTION1

The breadth and depth of the record in this inquiry demonstrate that students target each 

other for peer-to-peer bullying, harassment, and violence due to identity-based animus, all 

too frequently. The numerous, complex short and long-term negative consequences of such 

victimization underscore the urgency of careful monitoring, proactive intervention, and 

access to enforcement of rights by targeted students and their families.

Each demographic class of students examined -- those identified by race or national origin, 

sex, disability, sexual minority or gender non-conforming youth status, or religion -- suffers a 

serious and pervasive level of victimization. Needless to say, all children deserve to be 

protected from such targeting so that they may learn and grow in safety, regardless of what 

negative beliefs may persist about their status or identifying characteristics.

I concur with each of the Findings and Recommendations contained in the body of the U.S. 

Commission on Civil Rights‘ 2011 statutory enforcement report, ―Peer-to-Peer Violence and 

Bullying: Examining the Federal Response.‖2This Statement puts forth the additional 

findings and recommendations that I believe the multi-faceted and credible record supports.

FINDINGS

Finding #1: Peer-to-peer violence, bullying, and harassment based upon animus toward 

students’ race, national origin, sex, religion, disability, and/or sexual orientation or 

gender non-conformity occur at high rates. These actions constitute serious and 

pervasive problems which negatively affect schools, students and their families.

 

1 The Commission‘s 2011 Statutory Report is the product of intensive and thorough work by our staff, and also 

by the many panelists and public commenters who generously contributed their time and expertise toward a 

voluminous record. In particular, thanks are due to our Office of General Counsel for navigating the many tasks 

and complexities involved in this project while on a very demanding production schedule.

2 U.S. Commission on Civil Rights, ―Peer-to-Peer Violence and Bullying: Examining the Federal Response,‖ 

Washington, D.C., 2011, available at http://www.eusccr.com/ppvb.htm. (Hereinafter ―USCCR Report‖).
101 Statement of Commissioner Roberta Achtenberg

The USCCR Report finds first that ―[b]ullying and harassment, including bullying and 

harassment based on sex, race, national origin, disability, sexual orientation or religion, are 

harmful to American youth.‖ This is an important conclusion drawn from the Commission‘s 

inquiry. Yet, it does not go as far as the record supports to underscore the severity of the 

underlying problems. In view of the depth and breadth of the Commission‘s record, it is 

appropriate to characterize the scope of the problem in more serious terms, as well as to 

make more particularized findings and recommendations.

Finding #2: Up to one-quarter of racial and ethnic minority students are targeted for 

peer-to-peer bullying, harassment, and violence.

The numbers of complaints alleging race-based harassment made to the U.S. Department of 

Justice and the U.S. Department of Education demonstrate the continuing seriousness of the 

problem. Complaints alleging racial or national origin discrimination represent a significant 

percentage of overall complaint statistics in each of the years that the Commission examined, 

2005 through 2011. In some years, more complaints alleging racial or national origin 

harassment were made than those asserting that other types of animus-based harassment had 

been perpetrated.3 As the USCCR Report notes, 

[t]he California Healthy Kids Survey conducted in 2007-2009 found that 

when youth in California were bullied or harassed on school property, the 

most common specific reason cited was because of their race or national 

origin, with about 18 percent of students in grades 7, 9, and 11 reporting at 

least one bullying incident in the past year for this reason. The problem is not 

limited to one specific racial or ethnic group. When results from 9th and 11th 

grade students are broken down by race and ethnicity, African-American 

students reported being bullied or harassed due to their race or ethnicity at the 

highest rate — 23 percent. Twenty-two percent of Asian-American students, 

22 percent of Native Hawaiian or Pacific Islander students, and 20 percent of 

Native American students reported being harassed due to their race, ethnicity, 

or national origin as well. [citations omitted.]4

Finding #3: Disabled students are at significantly higher risk of targeting for peer-topeer bullying, harassment, and violence than are non-disabled students.

 

3

Id. at 32 – 36 and 40 – 42.

4

Id. at 12.
Peer-to-Peer Violence and Bullying 102

As the USCCR Report indicates, ―[t]hough research regarding the connection between 

bullying and disability is fairly limited ..., such research seems to indicate that students with 

disabilities are two to three times more likely than students without disabilities to be victims 

of bullying.‖5The paucity of studies in this area is of particular concern in light of the wide 

range of physical and mental health disabilities which affect students6and the differing ways 

in which peer-to-peer student bullying, harassment, and violence pertain to each, and in view 

of the fact that ―[t]he limited research on bullying in special education has indicated that 

special education students are more likely to be victimized.‖7Specifically with regard to 

students with learning disabilities, there has been:

very little research [citations omitted]. ... [However, b]ased on the research to 

date and on the characteristics common to children with [learning disabilities] 

and children who are bullied, there is reason to believe that children with 

[learning disabilities] are at greater risk of peer victimization [citations 

omitted].8

This is of particular concern where ―the co-occurrence of peer victimization and [learning 

disabilities] for children and youth may have separate and additive effects, substantially 

heightening these children‘s chance of experiencing social and emotional problems [citation 

omitted]....‖9 Disabled students‘ heightened risk of being targeted has been demonstrated 

with regard to students with Attention Deficit Hyperactivity Disorder (hereinafter ―ADHD‖).

Specifically:

[m]iddle-school students who reported taking medications for ADHD were ... 

more likely to report being bullied [than students not taking such medication]. 

... 34% of the students who reported taking ADHD medication, in comparison 

 

5

Id. at 14.

6

See generally: 1) Dawkins, J.L., ―Bullying, Physical Disability, And the Pediatric Patient,‖ Developmental 

Medicine and Child Neurology, Vol. 37, No. 7, 1996, p. 603; 2) Haynie, D.L., Nansel, T., Eitel, P., Crump, 

A.D., Saylor, K., Yu, K., et al, ―Bullies, Victims, and Bully/Victims: Distinct Groups of At-Risk Youth,‖ 

Journal of Early Adolescence, Vol. 21, 2001, p. 29; 3) Nabuzoka, D., ―Teacher Ratings and Peer Nominations 

of Bullying and Other Behavior of Children With and Without Learning Difficulties,‖ Educational Psychology, 

Vol. 23, No. 3, 2003, p. 307; and 4) Nabuzoka, D., and Smith, P.K., ―Sociometric Status and Social Behavior of 

Children With and Without Learning Difficulties,‖ Journal of Child Psychology and Psychiatry, Vol. 43, 1993, 

p. 1435.

7Mishna, Faye, ―Learning Disabilities and Bullying: Double Jeopardy,‖ Journal of Learning Disabilities, 

Jul/Aug. 2003, p. 336, 339.

8

Id. at 336. 

9

Id.
103 Statement of Commissioner Roberta Achtenberg

to 22% among other students, reported that bullies victimized them at least 2 

or 3 times a month.10

Also, the Commission has learned that:

[i]n a 2009 study of parents of children with Asperger Syndrome, 94 percent 

reported that their children had been bullied. [citation omitted.] Additionally, 

65 percent reported that their children had been victimized by peers within the 

past year, while 50 percent reported that their children were scared by their 

peers.

11

Finding #4: Over three-quarters of all students experience sex-based bullying, 

harassment, or peer-to-peer student violence.

As the USCCR Report indicates, ―statistics on sex-based bullying in K-12 schools are 

somewhat limited.‖12 Nonetheless, the USCCR Report presents good data from the 

Commission‘s record. Specifically, 

a 2001 study by the American Association of University Women (AAUW) 

found that 81 percent of students in grades 8 to 11 reported experiencing 

sexual harassment, including 83 percent of girls and 79 percent of boys.

Twenty-seven percent of the students surveyed, including 30 percent of girls 

and 24 percent of boys, said that they were sexually harassed often. Seventysix percent of students reported that they experienced nonphysical harassment 

often, occasionally, or rarely, while 58 percent reported experiencing physical 

harassment often, occasionally, or rarely. And 44 percent of girls and 20 

percent of boys reported that they were afraid of being sexually harassed at 

school. [citations omitted.]

In addition, in the School Survey on Crime and Safety (SSOCS), sponsored by 

the U.S. Department of Education‘s National Center for Education Statistics, 

schools reported 800 incidents of rape and 3800 incidents of sexual battery not 

involving rape in the 2007-2008 school year. The AAUW study found that 12 

percent of boys and 9 percent of girls in grades 8 to 11 reported that they had 

been forced to do something sexual other than kissing. [citations omitted.]13

 

10 Unnerver, James D. and Cornell, Dewey G., ―Bullying, Self-Control, and ADHD,‖ Journal of Interpersonal 

Violence, Vol. 4, No. 2, Feb. 2003, p. 129, 141.

11 USCCR Report, supra note 2, at 14 – 15.

12 Id. at 10.

13 Id. at 10 – 11.
Peer-to-Peer Violence and Bullying 104

Finding #5: Students of different religions, including Sikhs, Jews, Muslims, and 

Christians, report being targeted for bullying, harassment, or peer-to-peer student 

violence. For example, rates of Sikh student victimization range from roughly half to 

over three-quarters.

Issues of the targeting of students for peer-to-peer bullying, harassment, and violence based 

upon religious animus raises civil liberties issues that are a bit more complex than the 

victimization of students in other classes. As panelist Kenneth Marcus testified, 

[i]ntuitively, one would expect children victimized by religious hate to enjoy 

the apex of protections afforded under our constitutional system. Structurally, 

they are victimized at the convergence of the First and Fourteenth 

Amendments, denied not only the Constitution‘s ―first freedom‖ [citation 

omitted] but also the very interest in equal educational opportunity that has 

been constitutionally preeminent since Brown v. Board of Education. [citation 

omitted].14

Unfortunately, in this era of escalating religious intolerance, such legal subtleties are not 

being observed in the nation‘s classrooms. According to a study of youth survey data in 

California, 9.1% of students report being targeted for peer-to-peer harassment due to their 

religion.15 By way of illustration, the Report demonstrates that, in addition to Muslim, 

Christian, and Jewish students, Sikh students in the United States are targeted for animusbased peer-to-peer problems. Of particular note,

[a] 2010 survey by the Sikh Coalition, conducted in the San Francisco Bay 

Area in California, found that 47 percent of local Sikh youth were subjected to 

bullying. Of the boys who wear turbans (or patkas), 74 percent reported being 

subjected to bullying. The survey found bullying to be most prevalent in 

Alameda County, where 86 percent of Sikh boys reported being targeted.

Likewise, a 2007 Sikh Coalition survey of Sikh youth in New York City 

 

14―Religious Harassment in the Public Schools,‖ Testimony of Kenneth L. Marcus, Executive Vice President 

and Director of the Anti-Semitism Initiative, Institute for Jewish & Community Research, U.S. Commission on 

Civil Rights briefing, May 13, 2011, p. 2, available at 

http://www.eusccr.com/15.%20Kenneth%20L.%20Marcus,%20Institute%20for%20Jewish%20&%20Communi

ty%20Research.pdf.

15California Safe Schools Coalition and 4-H Center for Youth Development, ―Consequences of Harassment 

Based on Actual or Perceived Sexual Orientation and Gender Non-Conformity and Steps for Making Schools 

Safer,‖ University of California, Davis, 2004, p. 7, available at 

http://www.casafeschools.org/SafePlacetoLearnLow.pdf.
105 Statement of Commissioner Roberta Achtenberg

found that 58.4 percent of local Sikh students had been subjected to bullying.

The survey found that 62.2 percent of boys who wear turbans (or patkas) 

reported that they were bullied and 42 percent reported being physically hit or 

involuntarily touched. In the borough of Queens, as high as 77.5 percent of 

boys reported being bullied. [citations omitted.]16

Finding #6: Data shows that forty to fifty percent (40 to 50%) of sexual minority and 

gender non-conforming youth are targeted for peer-to-peer bullying, harassment, or 

violence.

Leading institutions and researchers, including the Institute of Medicine of the National 

Academies, have recognized that peer-to-peer bullying, harassment, and violence against 

sexual minority and gender non-conforming youth is so serious and pervasive as to constitute 

a public health problem of the highest order.

The recent report of aggregated data by the Institute of Medicine concluded that ―[c]ompared 

with heterosexual youth, LGBT youth report experiencing higher levels of harassment, 

victimization, and violence, including verbal, physical, and sexual abuse.‖17 The recent work 

 

16USCCR Report, supra note 2, at 22.

17 ―School-based harassment, bullying, and peer victimization are the most common topics in the literature on 

LGB youth. This emphasis may be due to the role of schools in child and adolescent socialization and 

development and the increasing focus over the past 20 years on schools as a primary site of conflict, 

victimization, and activism for young people who are known or perceived to be LGBT.‖

The Institute of Medicine of the National Academies, ―The Health of Lesbian, Gay, Bisexual, and Transgender 

People: Building a Foundation for Better Understanding,‖ Washington, D.C., 2011, p. 158, available at 

http://www.iom.edu/Reports/2011/The-Health-of-Lesbian-Gay-Bisexual-and-Transgender-People.aspx.

(Hereinafter ―IOM Report.‖)

The IOM Report further states that: 

[s]chool victimization based on known or perceived sexual orientation and gender identity has been 

documented consistently in studies of LGB and, more recently, transgender adolescents. A 

community-based study of LGB youth aged 21 or younger (n = 350) (D‘Augelli et al., 2002) found 

that school-based victimization was widespread for LGB youth and that an association existed between 

this victimization and mental health and posttraumatic stress symptoms. The study results showed that 

earlier recognition of same-sex feelings, self-identification as LGB, and disclosure of sexual 

orientation were correlated with increased high school victimization. Similarly, youth who were open 

about their sexual orientation or exhibited gender-atypical behavior were targets for victimization. 

Likewise, a series of community school climate surveys conducted since 1999 has documented 

extensive verbal and physical harassment and discrimination among LGBT students in schools 

(Kosciw et al., 2007, 2008).

Id.
Peer-to-Peer Violence and Bullying 106

of Dr. Mark Friedman of the University of Pittsburgh18 is also a relevant aggregation of 

studies. Dr. Friedman‘s meta-analysis ―included only studies that compared sexual minority

and sexual non-minority (heterosexual) youth.‖19 Further, and critically, his work ―included 

... only school-based studies that used probability (sometimes referred to as random) samples 

of youth. That is, youth assessed in these studies represent the populations of youth attending 

high schools in the communities where the studies were conducted.‖20 Simply put, Dr. 

Friedman‘s work is a meta-analysis of probability studies. Its relevant conclusions should, 

therefore, be assigned particular validity and credibility. Dr. Friedman concludes that his 

―research, using state of the art methodology, has confirmed that bullying victimization of 

sexual minority youth (i.e., youth who are sexually attracted to same-sex youth, self-labeled 

as gay, lesbian or bisexual) is a major public health problem.‖21 Dr. Friedman found that 

much peer-to-peer bullying, harassment, and violence toward sexual minority and gender 

non-conforming youth tends to be expressed through physical violence. Specifically,

[o]ver the aggregate of all the studies that qualified to be included in the meta 

analysis, compared to heterosexual youth, ... [s]exual minority youth were 

170% more likely to be assaulted at school‖ 22 and that ―40% of lesbians 44% 

of bisexual females, 43% of gay males and 50% of bisexual males were 

assaulted at school....23

Finding #7: Sexual minority and gender non-conforming youth do not have an 

intrinsically heightened vulnerability to negative outcomes from peer-to-peer bullying, 

harassment, and violence. Rather, ongoing societal stigmatization of homosexuality, as 

 

18 Friedman, Mark, Ph.D., MSW, MPA, Marshal, Michael P., Ph.D., Guadamuz, Thomas E., Ph.D,. MHS, Wei, 

Chongyi, DrPH, MA, Wong, Carolyn F., Ph.D., Saewyc, Elizabeth, Ph.D., RN, PHN, and Stall, Ron, Ph.D., ―A 

Meta-Analysis to Examine Disparities in Childhood Sexual Abuse, Parental Physical Abuse, and Peer 

Victimization Among Sexual Minority and Sexual Nonminority Individuals,‖ submitted to the Commission‘s 

record by Dr. Friedman on May 26, 2011 and in press with the American Journal of Public Health at the time of 

this writing. (Hereinafter ―Friedman, et al.‖)

19 Public Comment of Mark S. Friedman, Assoc. Professor, Univ. of Pittsburgh, at 1, May 26, 2011.

(Hereinafter ―Friedman Comment.‖)

20 In addition, the incorporated studies were disparate as to place and time.

―These results are based on 27 surveys administered in 15 geographic areas including cities, regions, or entire 

states such as Boulder, CO; Chicago, IL; Dane County, WI; District of Columbia; Massachusetts; Milwaukee, 

WI; Minnesota; Rhode Island; Seattle, WA; Vermont; Wisconsin., Of these 27 surveys, 17 were implemented 

after year 2000 and 10 during the 1990's."

Id. at 2.

21Id. at 1.

22 Id. at 2.

23 Id.
107 Statement of Commissioner Roberta Achtenberg

opposed to any inherent weakness, makes these youth particularly susceptible to 

negative outcomes resulting from identity-based harassment.

Homosexuality has long been understood to be a normal variation of human sexuality.24 A 

cornerstone of this knowledge is the fact that the American Psychiatric Association (APA) 

concluded almost forty years ago, in 1973, that ―homosexuality in and of itself implies no 

impairment in judgment, stability, reliability, or vocational capabilities,‖25 and that 

―homosexuality is not considered a mental disorder in APA‘s Diagnostic and Statistical 

Manual, Fourth Edition (DSM-IV-TR).‖26

The American Psychological Association expressed its support for the American Psychiatric 

Association‘s change in viewpoint in 1975.27 A wide array of professional mental health 

groups have subsequently endorsed the position that homosexuality is normal, as evidenced 

by their support for the American Psychiatric Association‘s recommendation against ―any 

psychiatric treatment, such as  ̳reparative‘ or  ̳conversion‘ therapy, that is based upon the

 

24Testimony of Gregory M. Herek, Ph.D., p. 6, as cited in USCCR Report, supra note 2, at footnote 91, p. 19, 

available at 

http://www.eusccr.com/9.%20Gregory%20M.%20Herek,%20University%20of%20California,%20Davis.pdf. 

(Note: The American Psychological Association informed the Commission, in its letter of May 10, 2011, of its 

assessment that ―Drs. [Gregory] Herek and [Ilan] Meyer are experts in the field of discrimination and bias 

against the LGBT population.‖) 

See also IOM Report, supra note 17, at 37, citing the mid-20th Century research of Dr. Alfred Kinsey and Dr. 

Evelyn Hooker.

25 At the time of homosexuality‘s 1973 removal from the Diagnostic and Statistical Manual, the American 

Psychiatric Association issued the following position statement: 

(http://www.psych.org/Departments/EDU/Library/APAOfficialDocumentsandRelated/PositionStatements/1973

10.aspx). The American Psychiatric Association stated that its ―[r]esolution singles out discrimination against 

homosexuals ... because of the pervasive discriminatory acts directed against this group and the arbitrary and 

discriminatory laws directed at homosexual behavior. Id. See also Public Comment of the American Psychiatric 

Association, April 29, 2011.

26 Id.

27 Conger, J.J., ―Proceedings of the American Psychological Association, Incorporated, for the year 1974: 

Minutes of the annual meeting of the Council of Representatives,‖ American Psychologist, Vol. 30, 1975, pp. 

620-651, available at http://www.apa.org/about/governance/council/policy/discrimination.aspx.
Peer-to-Peer Violence and Bullying 108

assumption that homosexuality per se is a mental disorder or is based on the a priori 

assumption that the patient should change his or her homosexual orientation.‖28

Numerous studies, both meta-analyses and individual investigations, have demonstrated that 

sexual minority and gender non-conforming youth upon whom animus-based peer 

harassment is perpetrated suffer an array of serious, negative outcomes. Among other results, 

―experiences [of peer-to-peer student violence] are related to increased substance use, ... 

mental health problems, and sexual risk-taking behavior.‖29 The Institute of Medicine reports 

that sexual minority youth who are targeted by peers are also at risk for suffering academic 

outcomes, such as diminished school attendance and low grades.30

 

28 These professional groups include the American Academy of Pediatrics, American Association of School 

Administrators, American Counseling Association, American Federation of Teachers, American Psychological 

Association, American School Counselor Association, American School Health Association, Interfaith Alliance 

Foundation, National Association of School Psychologists, National Association of Secondary School 

Principals, National Association of Social Workers, National Education Association, and the School Social 

Work Association of America. See ―Psychiatric Treatment and Sexual Orientation, Position Statement No. 

199820,‖ American Psychiatric Association, 1993, available at: 

http://www.psych.org/Departments/EDU/Library/APAOfficialDocumentsandRelated/PositionStatements/19982

0.aspx. Corollary to the lack of pathology inherent in a homosexual orientation is the reported overall positive 

mental health of sexual minority youth. As the USCCR Report quotes from the IOM Report, 

[i]t is important to note that LGBT youth are typically well adjusted and mentally healthy. Research 

based on probability samples with LGB youth consistently indicates that the majority do not report 

mental health problems. Regarding transgender youth, although no data from national probability 

samples are available, studies with sizable convenience samples indicate that many, if not most, of 

those youth do not report mental health problems. 

USCCR Report, supra note 2, at footnote 98, in pertinent part: ―See IOM Study, supra note 83, at 125.‖

29IOM Report, supra note 17, at 158, citing Birkett et al., 2009.

30Id. With regard to school attendance, Friedman‘s meta-analysis found that sexual minority youth are ―240% 

more likely to miss school due to fear that they would be unsafe at school or on [the] way to or from school,‖30

and that ―16% of lesbian females, 23% of bisexual females, 14% of gay males and 23% of bisexual males

missed school due to fear.‖ 

Friedman Comment, supra note 19, at 2. 

Further, gay, lesbian, and bisexual youth are approximately three to four times more likely than their 

heterosexual peers to have missed at least one day of school within the thirty days prior to the survey ―because 

they felt they would be unsafe at school or on their way to or from school.‖ 

Olsen, Emily O‘Mally, McManus, Tim, Kinchen, Steve, Chyen, David, Harris, William A., Wechsler, Howell, 

―Sexual Identity, Sex of Sexual Contacts, and Health-Risk Behaviors Among Students in Grades 9-12 – Youth 

Risk Behavior Surveillance, Selected Sites, United States, 2001 – 2009,‖ Morbidity and Mortality Weekly 

Report, Vol. 60, U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, 

June 6, 2011, p. 12, available at http://www.cdc.gov/mmwr/pdf/ss/ss6007.pdf. (Hereinafter ―CDC Report.‖)
109 Statement of Commissioner Roberta Achtenberg

Sexual minority youth appear to engage in an array of risky behaviors at higher rates than do 

their heterosexual peers. The June, 2011 analysis of multi-state, multi-year Youth Risk 

Behavior Surveillance System high school student data performed by the U.S. Department of 

Health and Human Services‘ Centers for Disease Control and Prevention found that, 

―[c]ompared with students who are not sexual minorities, a disproportionate number of 

sexual minority students engage in a wide range of health-risk behaviors.‖31 32 Sexual 

minority youth, as the CDC Report indicates, also face heightened risk of substance use and 

abuse, including tobacco,33 alcohol,34 and illegal drugs.35 In addition, as did the Institute of 

Medicine, the Centers for Disease Control and Prevention found that sexual minority youth 

appear to engage in risky sexual behavior at disproportionate rates.36

The research fails to show a link between any per se weakness in a homosexual orientation 

and a particular vulnerability to negative outcomes from peer-to-peer student violence.

Rather, as discussed in detail by Drs. Herek and Meyer, it appears that the extra pressure 

created by structural stigma is responsible for such disparate outcomes to the extent that they 

appear to exist.37

 

31Id. at 49.

Regarding its underlying data source, Youth Risk Behavior Surveillance System (hereinafter ―YBRSS‖) reports 

from an array of states over nine years, the CDC reports that

YRBSS is the only public health surveillance system in the United States that monitors, among 

interested states and large urban school districts, the prevalence of health-risk behaviors and selected 

health outcomes among population-based samples of sexual minority youths defined by sexual identity 

and by the sex of sexual contacts.

Id. at 43.

32 The CDC also reported that African-American sexual minority youth engaged in approximately half of a 

large array of measured risky behaviors more often than their same-race, heterosexual peers, and that Latino/a 

and white sexual minority youth did so roughly two-thirds as often.

Id. at 42.

33 Id. at 16.

34 Id. at 21.

35 See, e.g. , id. at 23 - 28.

36 See, e.g. , id. at 30 – 32.

37 ―Structural stigma‖ is the collective process by which majority class members give permission to the society 

as a whole to victimize minority class members. This permission also facilitates perpetration of harassment by 

members of one minority upon members of other minorities. Structural stigma plays an important role in 

condoning students‘ identity-based targeting of others due to race or ethnicity, religion, sex, disability status, 

and sexual minority and/or gender non-conforming youth status. This appears to further enhance the negative 

impacts of harassment upon youth who are members of more than one minority class, such as those who are 

both racial/ethnic-origin minorities and sexual minority youth, as this Statement discusses. This concept of 

stigma is the underpinning of the way in which society condones, or at least fails to sufficiently intervene 
Peer-to-Peer Violence and Bullying 110

Stigma impacts both the stigmatized and the stigmatizer. The Institute of Medicine reports 

that:

[c]ontemporary health disparities based on sexual orientation and gender 

identity are rooted in and reflect the historical stigmatization of [lesbian, gay, 

bisexual, and transgender] people. Most [lesbian, gay, bisexual, and 

transgender] people encounter stigma from an early age, and this experience 

shapes how they perceive and interact with all aspects of society.... Likewise, 

heterosexual people ... have been socialized in a society that stigmatizes 

sexual and gender minorities, and this context inevitably affects their 

knowledge and perceptions of lesbian, gay, bisexual, and transgender] 

people.38

Unfortunately, the structural stigma which fuels much of the school-based harassment that 

sexual minority youth experience may compound their vulnerability to negative outcomes 

when it emanates from within the student‘s home. Structural stigma can be expressed as 

family rejection of the youth‘s minority identity. Family rejection theory appears to be 

validated by meta-analysis which shows that sexual minority youth are 1.2 times more likely 

than their heterosexual peers to be physically abused by their parents.39, 

40 The heightened 

risk for parental abuse and other manifestations of family rejection appear to fuel the 

alarmingly high rate of homelessness among sexual minority youth.41

 

against, the identity-based harassment which plagues each of the demographic classes of students discussed in 

this project. (See Statements of Dr. Gregory Herek, supra note 24, and Dr. Ilan Meyer, available at 

http://www.eusccr.com/10.%20Ilan%20Meyer,%20Columbia%20Universirt.pdf. See also USCCR Report, 

supra note 2, at footnote 90.)

38 IOM Report, supra note 17, at 32.

39 Friedman, et al., supra note 18, at 1.

40In a similar vein, research indicates that ―sexual abuse by parents was more frequently cited as a reason for 

leaving home among gay and lesbian (21%) [homeless youth] that it was among heterosexual [homeless 

youth].‖ 

See Corliss, Heather L., Ph.D., Goodenow, Carol S., Ph.D., Nichols, Lauren, B.A., and Austin, S. Bryn, Sc.D, 

―High Burden of Homelessness Among Sexual-Minority Adolescents: Findings from a Representative 

Massachusetts High School Sample,‖ Journal of Public Health, Vol. 101, No. 9, Sept. 2011, p. 1683, 1686, 

published online July 21, 2011 with abstract available at 

http://ajph.aphapublications.org/cgi/content/abstract/101/9/1683 and full copy on file with the author.

41Analysis of data from two recent state-administered Massachusetts Youth Risk Behavior Surveys which drew 

from a large, probability-based sample pool determined that: 

[a]pproximately 25% of lesbian and gay adolescents and 15% of bisexuals reported homelessness as 

compared with 3% of the exclusively heterosexual adolescents. ... [Further, n]early 20% of the 

homeless youths in this study identified themselves as lesbian, gay, or bisexual.

This study concluded that, overall, ―rejection and victimization within the family related to minority sexual 

orientation likely contribute to a greater risk of homelessness among sexual minority youth.
111 Statement of Commissioner Roberta Achtenberg

Sexual minority youth are also apparently at particularly high risk of re-victimization by 

schools and the legal system. Such students also appear to be:

1.25 to 3 times more likely than their heterosexual peers to receive 

punishment from schools, police or courts. ... [T]his greater likelihood of 

punishment is not explained by greater engagement in troublesome behaviors 

and suggest that LGB youth may be targeted for punishment or that mitigating 

factors such as self-defense may be overlooked.42

Recent statistics indicate that roughly thirteen percent of youth responding to an anonymous 

survey study in juvenile detention facilities in six cities were sexual minority and gendernonconforming youth.43

The most egregious impact of animus-based peer-to-peer harassment, obviously, is the 

possible fueling of victims‘ suicidal ideation and behavior.44 The Centers for Disease Control 

and Prevention‘s recent analysis of behaviors related to suicidality indicates that gay, lesbian, 

and bisexual high school students are roughly two to three times more likely than their 

heterosexual peers to have ―seriously considered attempting suicide‖,45 or to have ―made a 

suicide plan.‖46 This analysis further found that gay, lesbian and bisexual are approximately 

three to four times more likely than their heterosexual peers to have actually attempted 

suicide,47 and that sexual minority youth are in the range of three to four times more likely 

than heterosexual students to have ―made a suicide attempt that resulted in an injury, 

poisoning, or an overdose that had to be treated by a doctor or nurse.‖48 The reasons that 

sexual minority youth may experience suicidal ideation and/or acts in response to 

victimization are not entirely clear. Nonetheless, social stigma may well drive some number 

 

Id.

42 IOM Report, supra note 17, at 159.

43 Majd, Katayoon, Marksamer, Jody, and Reyes, Carolyn, ―Hidden Injustice: Lesbian, Gay, Bisexual, and 

Transgender Youth in Juvenile Courts,‖ Legal Services for Children, National Juvenile Defender Center, and 

National Center for Lesbian Rights, 2009, pp. 93 - 94, citing Angela Irvine, ―The Inappropriate Use of Secure 

Detention for Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Youth,‖ funded by the Annie E. 

Casey Foundation Juvenile Detention Alternatives Initiative and presented at the Columbia University Gender 

on the Frontiers Symposium (April 10, 2009), on file with authors of ―Hidden Injustice.‖

44 See, e.g., IOM Report, supra note 17, at 147 - 150.

45 CDC Report, supra note 31, at 13.

46 Id.

47 Id.

48 Id.
Peer-to-Peer Violence and Bullying 112

of these experiences.49 According to the Institute of Medicine, ―[f]amily rejection due to 

sexual orientation may also be associated with increased risk of suicidality.‖50 The need to 

intervene as fully as possible to diminish peer-to-peer bullying, harassment, and violence 

against sexual minority and gender non-conforming youth is not driven only by the need to 

improve targeted students‘ short-term quality of life and academic success, but also by 

indications that the negative consequences of such acts can follow the target students into at 

least young adulthood.51

Finding #8: Peer-to-peer bullying, harassment, and violence targeted toward sexual 

minority youth who are also racial or ethnic-origin minorities are serious, pervasive, 

and involve unique complexities which merit further, careful study.

Sexual minority youth who are also members of racial or ethnic-origin minorities, according 

to research, face particular vulnerability to peer-to-peer bullying, harassment, and violence 

and to their negative outcomes. The Commission has been advised that, ―[i]n addressing the 

 

49 Meta-analysis indicates that:

[s]pecific factors related to sexual-minority status, including homophobic victimization and stress 

[citation omitted] are associated with suicidal behavior. In a study of 528 self-identified LGB youth 

aged 15-19, D‘Augelli and colleagues (2005) found that recognizing same-sex attraction, initiating 

same-sex sexual activity, or appearing gender nonconforming at earlier ages was associated with 

reported suicide attempts in LGB youth; this association may be exacerbated by experiences of 

victimization and maltreatment [emphasis added, citations omitted.]

IOM Report, supra note 17, at 148 - 149.

50Id. at 149, citing D‘Augelli et al. and Ryan et al.

51 Specifically, 

LGBT young adults who reported high levels of LGBT school victimization during adolescence were 

5.6 times more likely to report a suicide attempt that required medical care, [and] 2.6 times for likely to 

report clinical levels of depression ... , compared with peers who reported low levels of school 

victimization. [citation omitted.]

Public Comment of Caitlin Ryan, Ph.D., ACSW, Director, Family Acceptance Project, Marian Wright Edelman 

Institute, San Francisco State University, at 2, May 23, 2011.

The second relevant study demonstrated that sexual minority ―young adults who did not socially conform to 

gender roles as adolescents reported higher levels of anti-LGBT victimization, with significantly higher levels 

of depression and decreased life satisfaction in young adulthood.‖ [citation omitted.]

Id.
113 Statement of Commissioner Roberta Achtenberg

experiences of sexual minority students of color, it is important to recognize the 

intersectionality of identities and to avoid using an additive approach, i.e., examining race 

and sexuality separately without addressing their intersection.‖52 According to the Institute of 

 

52 Public Comment of Adrienne Mundy-Shephard, Esq., at 8, May 6, 2011. The following quote best 

summarizes the issues presented when the questions involve sexual minority and gender non-conforming youth 

of color. Adrienne Mundy-Shephard, Esq. advises that:

when considering the bullying of sexual minority youth of color, we should be mindful of the common 

theme that emerges from qualitative studies of sexual minority people of color: the perception that 

their racial and sexual identities are in conflict (Chung & Katayama, 1998; Dube & Savin-Williams, 

1999; Hahm & Adkins, 2009; Narváez et al., 2009). In their study of 23 black, Asian and Latino gay 

and bisexual male youth, Dube and Savin-Williams found that a number of the youth felt pressure to 

choose between their ethnic and sexual identities, and that their ―dual identities may be distinct 

constructs that do not become integrated‖ (1999, p. 1396). Similarly, in Chung and Katayama‘s study 

of gay and lesbian Asian-American adolescents, they found that those who strongly endorse their 

traditional Asian culture and beliefs are likely to face barriers in developing a positive sexual minority 

identity, while those who strongly identify with U.S. (i.e., white) sexual minority culture may have 

problems dealing with their Asian identity because of racism encountered by members of the larger 

(predominantly white) gay community (1998). Building on the theme of identity conflict, Hahm and 

Adkins (2009) emphasize the importance of developing an integrated identity that allows API sexual 

minority youth to develop their minority identities in such a way that they are able to exist in both 

worlds, rather than feeling compelled to choose between either their racial or sexual minority 

identities. Finally, in Narváez et al.‘s study of black and Latino sexual minority young people, a 

common theme concerned the incompatibility of sexual minority identity with minority status. For 

example, a Mexican lesbian described herself as feeling like ―a traitor to [her] own race‖ while a black 

lesbian spoke of having it made clear to her that ―being queer was in some sense a betrayal of [her] 

blackness.‖ (2009, p. 64).

Despite these real or imagined conflicts, the literature suggests that a positive self-image cannot be 

achieved without effectively dealing with one‘s minority identities in tandem (Chung & Katayama, 

1998; Dube & Savin-Williams, 1999; Hahm & Adkins, 2009). Sexual minority students of color are 

more vulnerable to negative academic and mental health outcomes precisely because of the difficulty 

in reconciling their dual identities, and their victimization on multiple fronts: by both outsiders, i.e., 

straight whites, and by those who are theoretically part of their in-groups, i.e., non-sexual minority 

members of their racial groups and white sexual minority people.

Given these intersections – and the tensions inherent in these intersections – it is crucial that 

researchers of sexual minority youth issues acknowledge the existence of sexual minority youth of 

color, and the ways in which their sexual minority status informs their status as people of color, rather 

than viewing youth through a single lens, i.e., as either sexual minorities or as racial/ethnic minorities.

For example, Klein (2006) writes that ―adolescent members of racial or ethnic minority groups can 

usually turn to others in the group -- particularly family members and peers -- for reassurance and 

assistance in dealing with societal hostility and developing a positive self-image,‖ but that ―gay and 

lesbian adolescents do not consider family to be a source of support and understanding‖ (p. 43). Within 

this frame, sexual minority youth of color do not exist: either a young person is a (straight) member of 

a racial/ethnic minority group and has the advantage of family and peer support to deal with issues of 

racism, or a young person is an sexual minority-identified (white) person who lacks the advantage of 
Peer-to-Peer Violence and Bullying 114

Medicine, ―[a]s highlighted by the concept of intersectionality, the experience of being a 

sexual minority is influenced by an individual‘s other identities. Thus, the experience of 

being lesbian, gay, or bisexual appears to vary according to the racial or ethnic group with 

which one identifies.‖53

Given the limitations in obtaining probability samples of sexual minority youth and racial 

minority overall, as discussed in Finding #9 below, it is reasonable to assume that obtaining 

such samples of sexual minority youth who are also racial minorities would be particularly 

difficult. Therefore, given the absence in its record of probability studies or a meta-analysis 

regarding this specific population, it is reasonable to rely upon carefully-crafted nonprobability studies conducted by highly-credentialed researchers and published in highlyrespected journals. The studies of this nature which are in the Commission‘s record 

demonstrate the heightened need to protect, as appropriate under the law, such youth.

One relevant study demonstrates that, as compared with white non-Latino/a peers and Latina 

sexual minority youth peers, young sexual minority Latinos face the highest rates of family 

rejection to disclosure of their sexual orientation. This high-rate rejection appears to be tied 

to sexual minority Latino youth, as compared to sexual minority white non-Latino/a peers 

and sexual minority Latina peers, having the highest rates of current depression, suicidal 

 

such support to deal with homophobia. Such observations ignore the fact that sexual minority youth of 

color appear to be more reluctant to seek family support than their white peers (Daley et al., 2007). In 

attempting to demonstrate the lack of family support that sexual minority youth have, researchers may 

overlook the fact that the sexual minority youth of color are often least likely to benefit from family 

supports. As Daley et al. write about the experience of sexual minority youth of color, ―the 

overwhelming white representation of lesbian and gay communities juxtaposed with the dominant 

heterosexual imagery of racialized communities helps to articulate the struggle for queer youth of 

color. They belong to both communities, yet their memberships in each remain contested‖ (2007, p. 

22). When examining the impacts of bullying and harassment on sexual minority youth, we must 

therefore be cognizant that the interaction of racial/ ethnic and sexual minority identity may increase 

the likelihood of victimization while reducing the likelihood of support. 

Id. at 8 - 9.

53 IOM Report, supra note 17, at 30.
115 Statement of Commissioner Roberta Achtenberg

ideation, suicide attempts, heavy drinking, substance abuse-related problems, unprotected 

sexual activity, and diagnoses of sexually transmitted diseases.54

Finding #9: The USCCR Report utilizes social science data which is rooted in 

conventional and legitimate research standards.

As self-report data collection techniques were first being developed, social scientists 

questioned their baseline reliability. Nonetheless, ―[d]uring the 1960s, researchers began to 

recognize the true potential of the self-report methodology.‖55 Motivated by this 

understanding, researchers have since then discerned and implemented many ongoing 

improvements in the realm of self-reporting data collection. ―[C]onsiderable attention has 

been paid to the development and improvement of the psychometric properties of the selfreport method.‖56 Thereby, ―[t]he self-report methodology [thereby] continues to advance, 

both in terms of its application to new substantive areas and the improvement of its design.‖57

This evolution has lead to researchers‘ increased confidence in the reliability and validity of 

data collected by self-report.58

 

54 Ryan, Caitlin, Ph.D., ACSW, Huebner, David, Ph.D., MPH, Diaz, Rafael M., Ph.D., and Sanchez, Jorge, BA, 

―Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual 

Young Adults,‖ Pediatrics, Vol. 123, No. 1, Jan. 2009, p. 346.

55 Thornberry, Terence P. and Krohn, Marvin D., ―The Self-Reporting Method for Measuring Delinquency and 

Crime, Measurement and Analysis of Crime and Justice,‖ Criminal Justice, Vol. 4., 2000, p. 38.

56 Id. at 41.

57 Id. at 40.

58 Of particular note is the increasing use of computerized surveys for collecting self-report data that has 

accompanied advances in technology and its accessibility. Most pertinently to this project and sexual minority 

and gender non-conforming youth, 

[T]he use of computer-assisted data collection ... [has the] potential for collecting sensitive 

information in a manner that increases the confidentiality of responses. By not having the interviewer 

read the questions or be involved in the recording of answers, the respondent does not have to reveal

potentially embarrassing behavior directly to another person. In addition, the responses cannot be 

overheard by other people (e.g., family members or teachers) who might be nearby.

Id. at 62, referencing Tourangeau, Roger, and Smith, Tom W., ―Asking Sensitive Questions: The Impact of 

Data Collection, Mode, Question Format, and Question Content,‖ Public Opinion Quarterly, Vol. 60, 1996, p. 

275.

Given the culturally-sensitive nature of a sexual minority or gender non-conforming youth identity and of nonheterosexual sexual behavior, it appears reasonable to extend this principle of the potentially enhanced 

reliability of computer-collected data to sexual minority and gender non-conforming youth.
Peer-to-Peer Violence and Bullying 116

Given the increased understanding that has lead to ongoing refinements of self-report data 

collection methodologies, it is now the case that:

the self-report method appears to behave reasonably well when judged by 

standard criteria available to social scientists. By these criteria, the difficulties 

in self-report instruments currently in use would appear to be surmountable; 

the method of self-reports does not appear from these studies to be 

fundamentally flawed. Reliability measures are impressive and the majority of 

studies produce validity coefficients in the moderate to strong range.59,

Whether the data is generated by self-report or otherwise, the methodology of the study 

creates different tiers of reliability of data.

Probability studies (those based upon as random a sample pool as possible) published in 

peer-reviewed journals with rigorous pre-publication standards are, overall, considered to be 

more reliable than studies based upon non-probability (non-random) sample pools published 

under the same circumstances. The Institute of Medicine explains that ―peer-reviewed 

journals are the gold standard for the reporting of research results,‖60 and that ―every effort 

[should be made] to consult works published in major research journals.‖61 Within the realm 

of such studies, one should give ―the greatest credence to such sources that report... research 

employing rigorous methods, were authored by well-established researchers, and were 

generally consistent with scholarly consensus on the current state of knowledge.‖62

Probability sampling among the some of the youth populations under examination by the 

Commission is particularly difficult to utilize. According to the Institute of Medicine,

[o]btaining a probability sample of a relatively small population, such as a 

racial, ethnic, religious, sexual, or gender minority, requires considerably 

more resources than are required for sampling the population as a whole. This 

is the case because a large number of potential participants must be screened 

 

59 Id. at 59, citing Hindelang, M.J., Hirschi, T., and Weis, J.G., Measuring Delinquency, Sage Publications, 

Beverly Hills, CA, 1981, p. 114. See also Chan, David, ―Chapter 13: So Ask Me? Are Self-Report Data Really 

That Bad?,‖ Statistical and Methodological Myths and Urban Legends: Doctrine, Verity and Fable in the 

Organizational and Social Sciences, Lance, Charles E. and Vandenberg, Robert J., Eds., Taylor & Francis 

Group, LLC, Pubs., NY, NY, 2009, p. 309.

60 IOM Report, supra note 17, at 18.

61 Id.

62 Id.
117 Statement of Commissioner Roberta Achtenberg

to obtain a sample of minority group members large enough for statistical 

analysis. Still more resources are required to collect samples that permit study 

of subpopulations within these groups, such as socioeconomic, age, and 

geographic groupings, and comparisons of respondents according to healthrelated characteristics. Lacking such resources, relatively few studies designed 

specifically to examine LGBT individuals have been able to utilize large 

probability samples.63

Therefore, most specifically with regard to sexual minority and gender non-conforming 

youth, ―[p]robability sampling has seen limited use in the study of LGBT health. ... [T]he 

relatively small size of LGBT populations, the lack of research funding, and the sensitivity of 

questions relating to sexual behavior and gender expression have been barriers to effective 

probability sampling.‖64,

65 Despite the difficulties inherent in conducting probability studies 

about the sexual minority and gender non-conforming youth populations, however, relevant 

and reliable research is still possible to conduct and valid conclusions are still possible to 

draw.66 Overcoming the inherent potential shortcomings in non-probability studies, 

aggregation of studies and meta-analysis are valid:

approach[es] to obtaining a national probability sample with a sufficient 

number of sexual- and gender-minority respondents involves combining data 

across studies. For ongoing studies that recruit new probability samples on a 

regular basis, it can be possible to combine sexual- and gender-minority 

respondents across years to produce a sample that is sufficiently large for 

 

63 Id. at 93.

64Id. at 99. Note: The IOM Report defines the term ―LGBT‖ to mean ―lesbian, gay, bisexual, and transgender,‖ 

in concert with the Commission‘s Report and this Statement. See IOM Report, supra note 17, at xviii.

65 The Institute of Medicine further explains that:

[s]cientific and methodological challenges exist in the design and implementation of most sample 

surveys and research studies. This is particularly true of studies of relatively small populations on 

topics construed by the respondent to be of a sensitive nature. Health research studies of LGBT 

populations are often viewed in this way. Methodological challenges, however, can be overcome when 

careful attention is paid to scientific rigor and respectful involvement individuals who represent the 

target population. Scientific rigor includes incorporating and monitoring culturally competent study 

designs, such as the use of appropriate measures to identify participants and implementation processes 

adapted to unique characteristics of the study population. Respectful involvement of the study 

population, in this case LGBT people, refers the involvement of individuals and community 

representatives in the research process, from decisions about the study purpose and methods, to 

ongoing consultation and data gathering, to dissemination of results (Minkler and Wallerstein, 2002).

Id. at 123 – 128, with data charts interposed.

66By logical extension, this principle should hold true with regard to the other demographic classes at issue here.
Peer-to-Peer Violence and Bullying 118

analysis, provided that the studies all include comparable measures of key 

variables.67

The Institute of Medicine notes further that:

[c]ombining data from multiple samples can be helpful in researching groups 

(like sexual and gender minorities) that represent a small domain in part of a 

larger survey. Because the numbers of these small groups often are not 

sufficiently large for analysis, combining data from multiple samples allows 

researchers to generate more accurate estimates. 68

Finding #10: The Commission found that “[c]urrent federal civil rights laws do not 

provide the U.S. Department of Education with jurisdiction to protect students from 

peer-to-peer harassment that is solely on the basis of religion,” and that “current 

federal civil rights laws do not protect students from peer-to-peer harassment that is 

solely on the basis of sexual orientation.” In addition, current state-level anti-bullying 

laws neither protect all students nor provide them with equal and consistent levels of 

protection.

The Anti-Defamation League has argued that, although most states have some form of antibullying statute in place, these statutes are very different in content. Further, none appear to 

address all identified areas in which coverage would be appropriate to fully protect students 

across the country. Such dimensions of an ideal law would include the required creation of 

school district policy, provision of a model policy, addressing the unique questions presented 

by cyberbullying, listing enumerated categories of protected students, mandating the 

definition and implementation of reporting procedures, implementing of parental notification 

requirements, provision of staff training, and imposition of accountability regarding districts‘ 

reporting to the states.69

 

67IOM Report, supra note 17, at 95 - 96.

68Id. at 96.

69See ―Ultimate ADL Chart of State Anti-Bullying Statutes,‖ submitted to the U.S. Commission on Civil Rights 

as part of the ―Statement of the Anti-Defamation League Submitted to the US Commission on Civil Rights,‖ 

May 13, 2011, available at http://www.eusccr.com/22.%20ADL%20Attachment%20-

%20Ultimate%20ADL%20Chart%20of%20State%20Anti-Bullying%20Statutes.xls.
119 Statement of Commissioner Roberta Achtenberg

The Anti-Defamation League has drafted a comprehensive model statute in this domain 

entitled ―Cyberbullying Prevention Law.‖ Culling the best provisions from existing state 

laws across the country, this law seeks to address, in concise fashion, the relevant concerns.70

Finding #11: A school district “neutrality policy,” “sexual orientation curriculum 

policy,” or any directive which precludes staff from discussing issues related to 

homosexuality, inappropriately chills school staff members’ ability to communicate 

with students and their families about peer-to-peer bullying, harassment, and violence 

related to students’ real or perceived sexual minority or gender non-conforming status.

By doing so, such a policy facilitates the unchecked perpetration and negative impact of 

such peer-to-peer behavior.

Commission witness Ms. Tammy Aaberg provided detailed and compelling testimony 

regarding the July, 2010 suicide of her fifteen year-old, openly gay son Justin Aaberg.71

According to Ms. Aaberg, Justin‘s suicide was fueled by the verbal and physical anti-gay 

harassment to which peers subjected him at school.

Justin Aaberg attended school in Minnesota‘s Anoka-Hennepin School District No. 11, 

which has in place a ―Sexual Orientation Curriculum Policy,‖ which is known colloquially as 

the ―neutrality policy.‖ This directive states that:

[t]eaching about sexual orientation is not a part of the District adopted 

curriculum; rather, such matters are best addressed within individual family

homes, churches, or community organizations. Anoka-Hennepin staff, in the 

course of their professional duties, shall remain neutral on matters regarding 

sexual orientation.72

 

70See ―Cyberbullying Prevention Law: The ADL Model Statute,‖ filed as hyperlinked attachment to ―Statement 

of the Anti-Defamation League Submitted to the U.S. Commission on Civil Rights,‖ May 13, 2011, p. 11, 

available at http://www.adl.org/civil_rights/Model_Cyberbullying_law%20_3.pdf. (Note: Despite its title, the 

model statute seeks to facilitate remediation of bullying and harassment perpetuated by any means, electronic or 

otherwise.)

71 Briefing Transcript, ―Peer-to-Peer Violence and Bullying: Examining the Federal Response,‖ U.S. 

Commission on Civil Rights, May 13, 2011, p. 243 ff.

72 ―Sexual Orientation Curriculum Policy,‖ Anoka-Hennepin District No. 11, adopted Feb. 9, 2009, filed with 

Statement of Tammy Aaberg and available at http://www.eusccr.com/19-

1%20Tammy%20Aaberg,%20Parent.pdf.
Peer-to-Peer Violence and Bullying 120

Reportedly, serious and pervasive problems of peer-to-peer bullying, harassment, and 

violence pervade District No. 11‘s high schools as a result of the discriminatory 

implementation of this policy. In Doe, et al. v. Anoka-Hennepin School District No. 11, 

federal court plaintiff students and former students allege suffering years‘ worth of 

unrelenting verbal and physical harassment from multiple student perpetrators due to the 

implementation of the Sexual Orientation Policy and a policy which preceded it.73

In addition to the pending federal court action, Anoka-Hennepin‘s Sexual Orientation 

Curriculum Policy is facing federal executive branch scrutiny as well. The U.S. Department 

of Education and the U.S. Department of Justice are investigating allegations of 

discriminatory peer-to-peer harassment based upon gender non-conformity as related to the 

Sexual Orientation Curriculum Policy and Title IX.74

The number and degree of reported acts of peer-to-peer bullying, harassment, and violence 

perpetrated against sexual minority and gender non-conforming youth, in tandem with the 

wide-ranging and serious consequences suffered by the targeted students, certainly raise 

questions about the implementation of Anoka-Hennepin District No. 11‘s Sexual Orientation 

Curriculum Policy. If, in fact, the policy and/or the manner in which it is implemented 

facilitate the creation of an illegally hostile environment for sexual minority and gender nonconforming youth, this situation exemplifies an unacceptable outcome to the failure of state 

and local authorities to control peer-to-peer harassment problems. If this is true, the situation 

underscores the need for students in Minnesota and across the country to have meaningful 

and consistent protections such as those proposed by the ADL Model Statute discussed 

above.

 

73The plaintiff students report, among other manifestations of harassment, being called an array of derogatory 

names, touched in sexually suggestive manners, tripped, pushed into lockers and a trash can, choked, stabbed, 

and told to commit suicide. Plaintiff students further report numerous attempts to engage the assistance of 

school staff in remediating the harassment, only to be ignored or given meaningless suggestions. The lawsuit 

seeks relief from sex discrimination and gender-based harassment under the Fourteenth Amendment Due 

Process Clause, the Fourteenth Amendment Equal Protection Clause, and Title IX of the Education 

Amendments Act of 1972 (20 USC sec. 1681 et seq.). See Doe, et al. v. Anoka-Hennepin School District No. 

11, No. 0:11-cv-01999-JNE-SER, (D. MN.), July 21, 2011, Complaint.

74 Probst, Emily, and Harlow, Poppy, ―Groups Challenge 'Anti-Gay Harassment' in Minnesota School District,‖ 

CNN, July 21, 2011, available at http://articles.cnn.com/2011-07-21/us/minnesota.schools.gays_1_sexualorientation-gay-rights-advocates-federal-investigation?_s=PM:US.).
121 Statement of Commissioner Roberta Achtenberg

Finding #12: Potential federal tools for the further amelioration of peer-to-peer 

bullying, harassment, and violence have been introduced into the U.S. House of 

Representatives and the U.S. Senate. The Safe Schools Improvement Act, the Student 

Non-Discrimination Act, and a proposed amendment to Title VI of the Civil Rights Act 

of 1964 seek to close gaps in existing law and provide strong, viable protections for 

students at risk of victimization due to their sexual minority or gender non-conforming 

status or their religion.

As the Commission found, students targeted for peer-to-peer bullying, harassment, and 

violence only on the basis of their sexual minority or gender non-conforming status, or only 

to their religious affiliation, do not have the benefit of federal protections. The underlying 

problems are serious and pervasive. Further, the lack of consistency among state laws 

demonstrates the need for federal legal protections. The Commission‘s record and Report 

make clear that specific federal legislative protection for these students is warranted.

The Safe Schools Improvement Act (hereinafter ―SSIA‖) is a cogent, targeted bill that seeks 

to ameliorate this gap for students targeted due to religion and sexual minority and gender 

non-conforming status that has recently been introduced into the U.S. House of 

Representatives and the U.S. Senate. The SSIA would amend the Safe and Drug-Free 

Schools and Communities Act. With bipartisan backing in both chambers, it seeks to address 

the targeting of students based upon, among other characteristics, race, national origin, sexual 

orientation, gender identity, sex, and religion. The SSIA would require federally-funded local 

educational agencies to adopt specific anti-bullying and anti-harassment prohibitions. It 

would further mandate that schools notify students, families, and school staff about 

prohibitions, incident reports, and complaint-registering information, and require that states

collect and report to the U.S. Department of Education data regarding the nature and extent 

of the problems.75

U.S. Representative Linda T. Sanchez (D-CA), lead U.S. House of Representatives sponsor 

of the SSIA, notes that ―[t]he widespread nature of this [peer-to-peer student bullying and 

 

75H.R. 1648 (2011) and S. 3739 (2010).
Peer-to-Peer Violence and Bullying 122

harassment] problem justifies federal action, especially where different schools, districts, and 

states have failed to address it.‖76 The SSIA, if enacted, would, 

help school personnel meaningfully address bullying and harassment and 

would ensure that States and [school] districts maintain and report data 

regarding incidents of bullying and harassment in order to inform the 

development of effective federal, state, and local policies that address these 

issues.77

A second relevant pending bill, the Student Non-Discrimination Act (hereinafter ―SNDA‖), 

is tailored more specifically to address the needs of sexual minority and gender nonconforming youth and those who associate with them. This Act, which enjoys bipartisan 

support in the U.S. House of Representatives, seeks to ban the exclusion of sexual minority 

and gender non-conforming youth from any activity receiving federal dollars. The SNDA 

would grant a cause of action to those who assert violation of their rights under the Act, and 

would waive states‘ Eleventh Amendment immunity from such suits.78

U.S. Senator Al Franken (D-MN), lead sponsor of the SNDA in the Senate, believes that:

[e]qual protections are needed for [lesbian, gay, bisexual, and transgender] 

youth, and they are especially warranted in the realm of education, which, 

according to the U.S. Supreme Court in Brown v. Board of Education, is 

arguably the most important governmental function. For parents of [lesbian, 

gay, bisexual, and transgender] students, public schools are currently failing to 

meet their most fundamental obligation to them: to keep their children safe.

To combat the urgent problem of anti-[lesbian, gay, bisexual, and transgender] 

bullying, the government and public must strive to provide a safe and secure 

environment for all students, an environment in which all students have an 

opportunity to reach their academic potential without being held back by 

fear.79

The SNDA does not seek to invent a new rubric for the recognition and protection of the 

right of sexual minority and gender non-conforming youth. Rather, as Sen. Franken notes,

 

76 Public Comment of Linda T. Sanchez, United States Representative, at 2, May 12, 2011.

77 Id. at 1.

78 H.R. 998 (2011) and S. 555 (2011).

79 Public Comment of Al Franken, United States Senator, at 3, April 29, 2011.
123 Statement of Commissioner Roberta Achtenberg

the SNDA would provide meaningful remedies (potential loss of federal 

funding and a private right of action) for discrimination in public schools.

Fifty years of civil rights history shows that similar laws that contain such 

remedies are often effective in preventing discrimination from occurring in the 

first place. Like other civil rights laws, SNDA would prompt schools to avoid 

liability by taking proactive steps to prevent the discrimination and bullying of 

students protected by the bill.80

The lead co-sponsors of the SNDA in the U.S. House of Representatives, Rep. Jared Polis 

(D-CO) and Rep. Ileana Ros-Lehtinen, believe that in-school discrimination against sexual 

minority youth and those who associate with them is ―a civil rights matter of great 

importance requiring an urgent, cooperative response from the federal government,‖81 and 

that, given the scope, complexities, and importance of the issues, ―school districts must be 

motivated to end discrimination and harassment against [sexual minority] students.‖82

Finally, H.R. 6216, as introduced into the 111th Congress, sought to amend Title VI of the 

Civil Rights Act of 196483 by adding the provision that ―[n]o person in the United States 

shall, on the ground of religion, be excluded from participation in, be denied the benefits of, 

or be subjected to discrimination under, an educational program or activity receiving Federal 

financial assistance.‖84 This protection against religious discrimination, clearly, would be 

more appropriately expansive than the protections which the Safe Schools Improvement Act 

seeks to provide solely in the educational context.

RECOMMENDATIONS

Recommendation #1: Involved federal agencies, including the U.S. Department of 

Justice and the U.S. Department of Education, should provide funding for additional 

research into the seriousness, pervasiveness, and impact of peer-to-peer bullying, 

harassment, and violence, including cyberbullying, targeted toward students due to 

 

80 Id. at 4.

81 Public Comment of Jared Polis, United States Representative, and Ileana Ros-Lehtinen, United States 

Representative, at 1, May 4, 2011.

82 Id. at 3.

83 42 USC 2000d.

84H.R. 6216 (2010).
Peer-to-Peer Violence and Bullying 124

their race, national origin, sex, disability, religion, and/or sexual minority or gender 

non-conforming status in schools in the United States.85

Recommendation #2: Additional scholarly research should examine with as much 

specificity as possible the issues of seriousness, pervasiveness, and impact of peer-topeer bullying, harassment, and violence for students targeted due to their race, national 

origin, sex, disability, religion, and/or sexual minority or gender non-conforming status.

Recommendation #3: The U.S. Department of Education and other relevant agencies 

should assist school districts in providing information to students and their families 

about the modalities, including cyberbullying, through which students target each other 

for bullying, harassment, or violence due to race, national origin, sex, disability, 

religion, and/or sexual minority or gender non-conforming status.86

Recommendation #4: As the Centers for Disease Control and Prevention of the U.S. 

Department of Health and Human Services recommend, “[e]ffective state and local 

public health and school health policies and practices should be developed to help 

reduce the prevalence of health-risk behaviors and improve health outcomes among

sexual minority youths. In addition, more state and local surveys designed to monitor 

health-risk behaviors and selected health outcomes among population-based samples of 

students in grades 9-12 should include questions on sexual identity and sex of sexual 

contacts.”87

Recommendation #5: Federal law enforcement agencies should collaborate with state 

and local law enforcement to ensure that the protections afforded under the Matthew 

Shepard and James Byrd, Jr. Hate Crimes Prevention Act to victimized students are, in 

 

85See ―Statement of the Anti-Defamation League Submitted to the US Commission on Civil Rights,‖ May 13, 

2011, p. 13, available at http://www.eusccr.com/20.%20Anti-Defamation%20League.pdf.

86See id. at 14.

87 CDC Report, supra note 31, at 2. 
125 Statement of Commissioner Roberta Achtenberg

fact, utilized fully and appropriately (including the requirement for collection of data 

regarding hate crimes both perpetrated by and against juveniles).88

Recommendation #6: State governments should consider, as appropriate, either 

enacting anti-bullying statutes of the type put forth in the Anti-Defamation League’s 

Model Statute “Cyberbullying Prevention Law” or amending their existing antibullying statutes to conform with the parameters of this Model Statute. Localities and 

school districts would be well-advised to contemplate the comprehensive facets of this 

Model Statute when considering their own laws, regulations, and policies.89

Recommendation #7: School districts should ensure that they are in compliance with 

federal laws and U.S. Department of Education guidance documents regarding the 

protection of students targeted for discriminatory peer-to-peer violence. 

Recommendation #8: School districts should ensure appropriate training to enable staff 

to recognize and act to minimize students’ animus-based behaviors toward each other. 

Recommendation #9: School districts should provide to student victims and their 

families information about how to report incidents of violence, harassment and 

bullying, and how to enforce their rights, in a manner which is not unduly complicated, 

and which is written at a level (and in a language) easily comprehensible to students 

and their families.

Recommendation #10: School districts should ensure that the families of students are 

informed, in a timely manner and one which is respectful of student safety,90 when their 

children are subject to violence, harassment and bullying at school. Such parental 

notice may be especially important with regard to disabled students who are victimized, 

 

88 See ―Cyberbullying Prevention Law: The ADL Model Statute,‖ supra note 73, at 11.

89 Id.

90In light of the structural stigma and family support concerns discussed in the USCCR Report and elsewhere in 

this Statement, there may well be special sensitivities and risks with schools‘ communication of peer-to-peer 

problems to the families of sexual minority and gender non-conforming youth.
Peer-to-Peer Violence and Bullying 126

as these students may be unable to report the abuse to their families if unaided by 

school officials. This notice should be in language and manner comprehensible to the 

family, especially in the case of Limited English Proficiency families. 

Recommendation #11: School districts should rescind existing “neutrality policies,” 

“sexual orientation curriculum policies,” and any directives which preclude or chill 

staff from discussing issues regarding homosexuality with students and their families, 

thereby allowing peer-to-peer violence, bullying, and harassment against sexual 

minority and gender non-conforming youth to go unaddressed. 

Recommendation #12: Congress should enact, and the President should sign into law, 

the Safe Schools Improvement Act for the benefit of students targeted for peer-to-peer 

bullying, harassment, and violence due to race, national origin, sex, disability, sexual 

orientation, gender identity, or religion.

Recommendation #13: Congress should enact, and the President should sign into law, 

the Student Non-Discrimination Act for the benefit of students targeted for peer-to-peer 

bullying, harassment, and violence due to their sexual minority or gender nonconforming status.

Recommendation #14: Congress should enact, and the President should sign into law, 

an amendment Title VI of the Civil Rights Act of 1964 to prohibit discrimination on the 

basis of religion.

CONCLUSION

There can be no doubt that peer-to-peer bullying, harassment, and violence against students 

due to their race, national origin, sex, disability, religion, and/or sexual minority or gender 

non-conforming status are serious and pervasive problems in the United States. Anti-minority 

stigma, which allows bias to linger in society, appears to complicate and compound the 

issues.
127 Statement of Commissioner Roberta Achtenberg

I commend the efforts of the U.S. Department of Justice and the U.S. Department of 

Education to enforce existing federal civil rights laws for the benefit of targeted students who 

fall under their protection. The federal government should extend these protections to 

students targeted due to their religion or sexual minority or gender non-conforming status by 

enacting bills such as the Safe Schools Improvement Act, the Student Non-Discrimination 

Act, and amendment to the Civil Rights Act of 1964.

Overall, the problems of peer-to-peer bullying, harassment, and violence exact far too high a 

cost. All of us, government officials, social scientists, educators, and families alike, must put 

forth our best efforts to continue to define, understand, and resolve the issues at hand.

Honoring the memories of Justin Aaberg and the other youth whom we have lost requires no 

less.
128 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow, 

With Which Commissioner Heriot Concurs

Overview

Rather than undertake a critical analysis of what the U.S. Departments of Education (ED) and 

Justice (DOJ) are doing right, wrong, or could do better with respect to their enforcement of 

federal civil rights laws regarding peer-to-peer harassment, the report gets lost in the emotion 

over K-12 ―bullying‖ generally. The report quotes a number of advocates and even some 

federal agency officials about the supposed bullying ―pandemic‖ sweeping K-12 schools, but 

that type of rhetoric is to be expected from those who believe it is their job to promote the 

issue.

Unfortunately, there is no data whatsoever in the Commission‘s report that relates to K-12 

schools‘ observance of or failure to follow the federal laws that deal with the subject, so there 

is no data whatsoever in the report that would support any change in law. There is also no 

serious analysis of the legal and policy issues raised by the agencies‘ current enforcement 

efforts. The cursory discussion of whether ED‘s recent guidance and DOJ‘s current 

interpretation of the relevant anti-discrimination provisions are unlawful and/or misguided 

does not fairly capture the competing arguments nor come to any conclusions.1Even in the 

absence of any data on the federal enforcement effort, we think some of ED‘s and DOJ‘s 

enforcement positions are inconsistent with law and seriously mistaken as a matter of civil 

rights policy.

An Analysis-Free Report

Pursuant to the Commission‘s organic statute, the purpose of its annual enforcement report is 

to study and critique the effectiveness of federal agency efforts to enforce one or more of the 

 

1

It is the general practice of the Commission, at least in recent years, not to set forth ultimate conclusions in the 

body of its reports, and to leave such conclusions to the formal ―findings‖ and ―recommendations‖ that are 

discussed and separately voted on by the eight commissioners. The Commission did not attempt to resolve the 

lawfulness or prudence of OCR‘s departure from the legal standards set forth in Supreme Court decisions in any 

manner.
Peer-to-Peer Violence and Bullying 129

existing civil rights laws, but no serious attempt was made to critique the effectiveness of 

ED‘s or DOJ‘s efforts in the Commission report. The apparent purpose of this report is to 

condemn social behavior that includes teasing, eye-rolling, and exclusion among K-12 

students. Yet, even if the report was an attempt to describe the negative social behavior of 6-

18 year-old students that it often misleadingly labels ―bullying,‖ its uncritical reliance on 

flawed surveys, advocacy group claims, and a mish-mash of contradictory statistics does 

more to mislead than cast light on the matter. Congress expects the Commission to exercise a 

higher level of professionalism in the social sciences. We regret that the Commission failed 

to live up to this expectation.

Since its creation, a central purpose of the Commission has been to ―gather facts instead of 

charges‖ and ―sift out the truth from the fancies‖ in the hopes of providing findings and 

recommendations ―which will be of assistance to reasonable men.‖2To do so requires the 

Commission to be a careful and neutral arbiter of the competing (and sometimes complex) 

facts, issues and policy considerations at work. It can only accomplish this goal by avoiding 

the hype that the broader topic of bullying evokes (even if the enforcement agencies have not 

been as careful). Responsible and critical analysis is necessary to avoid ill-conceived policy 

recommendations or enforcement actions that have negative, unintended consequences.

The general topic of student teasing, bullying, and social exclusion is not within this 

Commission‘s jurisdiction. Even so, the Commission‘s report provides no reliable indication 

of whether any such behavior is on the rise, has declined, or has stayed about the same over 

time. The advent of social technologies alone is not an indicator that bullying is on the rise.

Even if it is, the only matter relevant to the Commission‘s study of federal civil rights laws is 

whether K-12 schools are responding as they should when they learn of severe and pervasive 

acts of bullying on the basis of protected classes that rises to the level of legally actionable 

harassment under the civil rights laws enforced by ED‘s Office for Civil Rights (OCR) and 

DOJ.

 

2

103 CONG. RECORD 13,897 (1957) (statement of Sen. Lyndon Johnson).
130 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

There also are significant statutory, First Amendment, and practical issues worthy of more 

careful and detailed discussion throughout the report rather than the cursory fashion in its last 

chapter. The issues involved in student-on-student harassment are not simple. Though it is 

emotionally appealing for some to join the chorus that a larger federal role would somehow 

bring the number of bullying incidents among 55 million K-12 students significantly down, 

the Commission must refrain from doing so absent more careful, detailed analysis.

Irrelevant, Unreliable, and Conflicting Data

Putting aside the heated rhetoric about a bullying ―pandemic,‖ there is no data at all in the 

Commission‘s report on the subset of school bullying that is covered by federal law, i.e., that 

which rises to the level of legally-prohibited harassment of federally protected classes. Thus, 

there is no data on the central issue for a federal civil rights enforcement report, namely, 

whether K-12 schools are adequately addressing their responsibilities under federal law, or 

for that matter, bullying more generally. Instead, many pages of the report are devoted to 

reciting highly questionable and conflicting studies and surveys to suggest that teasing and 

bullying generally is ―widespread.‖ It has been so for centuries, but the data in the report 

probably does more to mislead than illuminate policymakers regarding its nature, 

seriousness, or frequency.

To identify potentially relevant data, it is first necessary to understand what is and is not 

prohibited under federal law. Schools that accept various types of federal funding are 

themselves forbidden from discriminating on the basis of race, color, national origin, gender, 

and disability, but their liability for peer-to-peer conduct is understandably more limited.

Although the relevant legal standards are not discussed in detail until chapter 7 of the 

Commission‘s report, student conduct only creates liability for schools under federal law if: 

(1) they have actual notice of and are deliberately indifferent to (2) severe, pervasive, and 

objectively offensive conduct on the basis of race, color, national origin, gender, or disability 
Peer-to-Peer Violence and Bullying 131

(3) that creates a hostile environment having the effect of depriving victims of the 

educational opportunities of the school.3

Putting aside for now the conflicting interpretations of the civil rights statutes at issue, it is 

undisputed that schools are not liable under federal law for trivial student-to-student insults, 

acts of exclusion, or speech protected by the First Amendment, even if motivated by the 

victim‘s race, color, national origin, gender or disability. Moreover, K-12 schools are not 

generally liable under federal civil rights law even for severe and pervasive taunts or bullying 

that focus on the victim‘s weight, attractiveness, or other non-federally protected categories.

Any decent school would try to prevent all types of harmful bullying, but K-12 schools 

simply are not liable under federal law for all bad, or even objectively cruel and persistent, 

student conduct.

Surveys or studies that lump all incidents of student teasing, acts of exclusion, spreading 

rumors, and other protected speech with more serious and sustained conduct that is violent or 

might constitute physical threats are not helpful in assessing a school‘s responsibility under 

federal law for two reasons. First, most conduct in such global surveys is not covered by 

federal law. Second, it is even less clear whether the schools responded appropriately to any 

or all of the conduct at issue. If schools are responding reasonably, there is no federal issue.

Unfortunately, there is absolutely no data in the report on the following critical matters 

relevant to the enforcement of the federal civil rights laws:

(a) the frequency or amount of student-to-student bullying based on federally 

protected criteria that is severe, pervasive, and objectively offensive enough to 

constitute prohibited harassment under federal law for any relevant time period (i.e., 

that which denies the relevant students‘ educational opportunities);

(b) the frequency or amount of such federally prohibited peer-to-peer harassment in 

subparagraph (a) that K-12 schools did know (or should have known) about and took, 

or were alleged to have taken, insufficient action to address;

 

3 ED and DOJ believe they can define the conduct that constitutes prohibited harassment under federal law 

much more broadly than has the Supreme Court. The differences in the substantive legal standards are discussed 

in the next section of this statement, but none of the data in the report are relevant to the administration‘s 

definition of prohibited federal harassment either. In short, the analysis in this section does not depend on 

adopting the Supreme Court‘s definition of federally prohibited harassment rather than the administration‘s.
132 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

(c) the frequency or number of claims captured in subparagraph (b) that were 

meritorious for any relevant time period;

(d) the frequency or number of instances of harassment in subparagraph (b) in which 

federal enforcement agencies played more than a tangential role in resolving.

The above data would be critical in assessing even a snapshot of the relevant student conduct 

at issue, whether K-12 schools are responding appropriately, and the federal enforcement 

agencies‘ current efforts or involvement in enforcing the federal laws. However,

policymakers might want even more data before venturing to change federal law. For 

example, policymakers might want data on the following:

(e) a breakdown of such data for subparagraphs (a) and (b) for each class of students 

protected under federal law (e.g., severe and pervasive bullying that constitutes 

prohibited harassment based on race, color, national origin, gender, disability, failure 

to conform to stereotypes regarding the same); and

(f) data that show changes in subparagraphs (a), (b), (c) and (d) over relevant time 

periods (e.g., five- or ten-year intervals or any other relevant time periods).

The actual data from ED and DOJ in the Commission‘s report does little or nothing to shed 

light on relevant questions for a federal enforcement investigation. The type and number of 

complaints received by OCR (set forth in chapter 3 of the report) conveys no helpful 

information about schools‘ compliance with federal law as it relates to peer-to-peer conduct.

The report concedes that the percentage of such complaints that involve peer-to-peer conduct 

is unknown. Even assuming the peer-to-peer complaints were identified, there is no 

information on what percentage of complaints were meritorious, or even marginally well 

supported. There is also no information on how many of the well-supported claims involved 

serious and pervasive conduct such that they might have constituted federally prohibited 

harassment. Finally, for the unknown subset that might be serious, meritorious complaints of 

peer-to-peer harassment, it is unclear whether the schools had taken or were already taking 

appropriate action.

The Commission‘s own review of OCR voluntary resolution agreements between 2005 and 

March 2011 is also virtually meaningless, for similar reasons. It is perhaps interesting but 

hardly significant to learn that 138 of the 292 agreements examined relate to peer-to-peer 
Peer-to-Peer Violence and Bullying 133

conduct. But the Commission‘s examination of these voluntary agreements did not disclose 

anything else of particular value. For example:

 There is no analysis of the variation in the cases per year, which peak at 36 

nationwide in 2009 and decline to 29 in 2010.

 There is no evaluation of how many complaints were either serious or meritorious. It 

is not very telling to voluntarily resolve a non-meritorious complaint.

 There is no information indicating how many of the roughly 23 schools per year that 

were the subject of such voluntary resolution agreements were already taking action 

on their own to resolve the dispute before OCR became involved.

 Assuming the schools at issue were not already taking action to resolve the dispute, 

there is no evaluation of whether the schools at issue responded immediately and 

voluntarily to claims brought to their attention or whether OCR played a more 

substantial role in resolving the dispute.

 There is no context to suggest how many thousands of schools are covered by federal 

law, the ratio of meritorious to non-meritorious complaints, or their relation to the 

actual incidence of serious bullying.

 Reliable estimates suggest there are approximately 55 million students enrolled in K12 schools in any given year.4 Yet, California and Missouri were the only states with 

more than ten resolution agreements with OCR over the six year period. The vast 

majority of states and DC had schools with two or fewer such agreements over the 

six-year period: Alabama, Louisiana, Michigan, Minnesota, Mississippi, North 

Carolina, Oregon, South Dakota, Tennessee, and Utah (with 2 each); Alaska, DC, 

Florida, Idaho, Maine, Montana, New Hampshire, New Mexico, Rhode Island, 

Vermont, Washington, and West Virginia (with one each); and Arkansas, Delaware, 

Indiana, Iowa, Nebraska, Nevada, New Jersey, North Dakota, South Carolina, 

Virginia, Wisconsin, and Wyoming (with none).

 Thus, the above listed states and DC had, at most, one or two of their schools or 

school districts enter into a voluntary resolution agreement with OCR in the six-plus 

year period. Many of the complaints may have lacked merit and were resolved for 

that reason. The report does not say. Some schools might have already been 

investigating and resolving the incident. The report does not say. Some schools might 

have been happy to learn of the complaint and voluntarily taken appropriate action.

The report does not say.

 

4 The National Center for Education Statistics estimated there were 55.4 million elementary and secondary 

students in the United States in fall 2010. U.S. DEP‘T OF EDUC., DIGEST OF EDUCATION STATISTICS: 2010, Table 

1, Projected number of participants in educational institutions, by level and control of institution: Fall 2010, 

available at http://nces.ed.gov/programs/digest/d10/tables/dt10_001.asp?referrer=report. 
134 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

Although the Commission‘s review of voluntary resolution agreements tells us nothing about 

the seriousness or merit of the complaints or anything about the schools‘ voluntary responses 

thereto, it does undercut DOJ‘s and other activists‘ hyperbole about a ―pandemic‖ of 

bullying. Even if all were serious and meritorious complaints, zero, one, or two incidents in a 

given state over six years is probably not what most people would consider a ―pandemic.‖

The Commission‘s report does not disclose what effort, if any, was undertaken to obtain the 

relevant data described above, despite our frequent requests for it. Yet the report should at 

least have disclosed that in response to questions from several commissioners at the briefing 

on May 13, expert witnesses expressed their belief that no reliable data exists on the most 

contested issues, including peer-to-peer harassment on the basis of sexual orientation or 

failure to live up to a perceived gender stereotype, and accordingly, that no consistent frame 

of reference exists of this type of conduct over time.5This is an inconvenient truth that 

should be honestly reported.

The final bit of relevant information that the Commission should have tried to obtain and 

analyze is what efforts K-12 schools are taking to comply with their obligations under federal 

law, or more generally, what they are doing to respond to all types of bullying. No serious 

discussion or analysis exists in the Commission report regarding these state and local efforts.

Forty-nine states and the District of Columbia, and many more local jurisdictions, have 

formal anti-bullying laws and policies.6 Moreover, all states punish violence or threats of 

 

5

See, e.g., Commission Briefing Transcript (May 13, 2011) [hereinafter Briefing Transcript] at 47 (Jocelyn 

Samuels answering Commissioner Kirsanow that DOJ does not keep data tracking complaints it receives); 103 

(panel of Fatima Goss Graves, Roger Clegg, Gregory Herek, Ilan Meyer, and John Eastman had no response to 

Commissioner Kirsanow‘s question of whether ED, DOJ, or any other entity had data tracking the number of 

complaints relating to harassment of protected classes); 307 (Ken Trump answering a question from 

Commissioner Gaziano: ―[T]here is no historical data on bullying, to my knowledge, especially at the federal 

level for an extended period of time.‖), available at http://www.eusccr.com/PeerBullying%20May%2013%202011%20Transcript.pdf. 

6

Forty-seven states and the District of Columbia have anti-bullying statutes. Hawaii is the most recent state to 

pass an anti-bullying statute, which was signed into law on July 11, 2011. Two of the three states that do not 

have anti-bullying statutes, Michigan and Montana, have statewide regulations. See NAT‘L SCHOOL BOARDS 

ASS‘N, STATE ANTI-BULLYING STATUTES JULY 2011, available at

http://www.nsba.org/SchoolLaw/Issues/Safety/Table.pdf; H.B. 688, 2011 Sess. (Haw.). We do not necessarily 

endorse all of these laws; we have not closely reviewed them. Commissioner Heriot notes in her accompanying 

dissent that some state anti-bullying laws and regulations may have unintended consequences. See also Winnie 

Hu, Bullying Law Puts New Jersey Schools on Spot, N.Y. TIMES, Aug. 30, 2011. We cite such state laws here 

primarily because the proponents of a new federal law bear the burden of demonstrating that it is not duplicative 
Peer-to-Peer Violence and Bullying 135

violence that advocates claim they are most concerned about, and every school likely has 

policies against other types of bullying, even if they are not contained in ―anti-bullying‖ 

laws.

On pages 74 and 76, the report recites two activists‘ claims that the states‘ anti-bullying laws 

are ―not working,‖ but there is not even a casual examination of this assertion. Do the 

advocates think all teasing or bullying must stop for the laws to ―work?‖ If so, what makes 

them think more federal laws would work? For example, every state prohibits theft with 

severe penalties, but thefts still occur. Does that mean state theft laws are ―not working?‖ 

Would a general federal theft law prevent them?

The advocates‘ dismissal of state and local efforts to combat bullying deserves more 

attention than a he-said/she-said, few-sentence coverage in the report. It goes to the heart of 

the federal government‘s jurisdiction and the practical question of whether schools are doing 

a reasonable job enforcing the federal civil rights laws. Unfortunately, there is no quantitative 

or other objective evidence in the Commission‘s report that state and federal laws are not 

adequate.

Instead of highlighting the failure of ED and DOJ to keep or provide relevant data, the report 

attempts to mask this serious shortcoming with a plethora of irrelevant, unreliable, and oddly 

conflicting survey data on mean student behaviors. The Commission has the responsibility to 

sort the ―truth from the fancies‖ and place them in context. The Commission should not 

simply re-publish unreliable and misleading statistics gathered from whatever source. The 

Commission should have investigated competing factual claims and analyzed conflicting 

data. Instead, the report too often recites various statistics, many of which are unreliable, 

misleading, or inherently suspect. Accordingly, the report is more hortatory than analytical.

To add injury to this social science insult, the report declines to endorse any definition of 

bullying, see page 2, yet quotes three that may be mistakenly understood as Commission-

 

and will not undermine (by preempting and/or conflicting with) existing law. As we indicate later in the rebuttal 

portion of this statement, we also have independent reasons to believe that increased federal intervention would 

cause more harm than good in this area.
136 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

endorsed definitions.7Even worse, it expressly refuses to evaluate the validity of any of the 

surveys or studies it cites (see the report at footnote 10). During our initial review of the draft 

report in May, we urged the Commission staff to evaluate all the surveys and studies cited in 

the report and delete all those that were irrelevant or unreliable or to at least note the 

deficiencies in those that are cited. Instead of doing so, the disclaimer appeared in the final 

draft report that the Commission did not ―independently verify the data‖ and that some 

experts ―critique the usefulness and accuracy of this data.‖ Indeed.

Here are just a few examples of the problems with the data cited in the report.

1. Many of the surveys suffer from serious self-selection bias, as well as other obvious 

biases, including that the students could volunteer to respond to poll questions on an 

advocacy group or other website.8 As one study cited in the report notes about sampling, 

―in contrast to probability samples, the sampling error associated with population 

estimates derived from nonprobability samples cannot be computed, and the extent to 

which the sample represents the population from which it was drawn cannot be known.‖9

 

7 Not only did the Commission not define bullying or harassment in its report, a majority of the commissioners 

also refused to do so when debating the findings that would accompany the report. And the majority still 

purported to make a finding that ―bullying and harassment . . . are harmful to American youth.‖ When the 

Commission was voting on the proposed finding, Commissioner Gaziano objected that ―bullying‖ was a 

moving target and some scholars were even beginning to define ―bullying‖ downward to include parents not 

inviting everyone in their kids‘ class to their birthday parties at their homes. Commission Transcript at 19 (Aug. 

12, 2011); see also Hans Bader, Schools Use „Bullying‟ as a Pretext to Violate Students‟ Rights to Free 

Association and Freedom of Speech, OPENMARKET.ORG, Aug. 10, 2011 (noting that bullying also is coming to 

mean wielding ―popularity‖ to exclude others and offensive ―eye rolling.‖). Thus, Gaziano proposed to amend 

the finding to conform to the Commission‘s purported review of federal law, limiting it to ―serious, pervasive 

and objectively offensive‖ conduct constituting harassment under federal law. Commissioners Castro, 

Thernstrom, Yaki, and Achtenberg rejected the amendment and offered no clarification of their own, preferring 

to leave it vague. Indeed, Vice Chair Thernstrom admitted the finding ―doesn‘t say anything‖ and is ―like a 

talking point of a politician‖ but then provided the decisive vote to prevent it from saying anything and keep it 

like a politician‘s talking point. See Commission Transcript at 21-22 (Aug. 12, 2011).

8 All non-scientific polls should have been deleted, especially those from advocacy groups. For example, the 

GLSEN 2009 and Harris Interactive 2005 surveys are from different types of self-selecting respondents, the first 

of which is also influenced by the websites that solicit their views. Such self-selective surveys and suspect data 

serve no purpose but to mislead. Part of the AAUW study used the Harris Interactive online method, which is 

not a probability sample. The report at footnote 16 cites a press release from the American Academy of Child & 

Adolescent Psychiatry, but the press release does not indicate the kind of surveys it is publicizing. The 

Massachusetts Advocates for Children report did not use a probability sample and had a heavy selection bias. 

Parent respondents to an online survey were informed that data and examples provided would be used to 

support the passage of an act addressing bullying of children with autism. Report at 15 n. 69.

9

INST. OF MEDICINE OF THE NAT‘L ACADS., BD. ON THE HEALTH OF SELECT POPULATIONS, COMMITTEE ON 

LESBIAN, GAY, BISEXUAL, & TRANSGENDER HEALTH ISSUES & RESEARCH GAPS & OPPORTUNITIES, THE 
Peer-to-Peer Violence and Bullying 137

2. The report cites one study that not only used a self-selected sample gathered from 

community-based groups and internet sites for LGB youths, but the students surveyed 

were from the United States, Canada and New Zealand.

10 Citing a study of foreign 

students illustrates the throw-anything-against-the-wall approach to data in the report.

3. Different surveys relied on inconsistent definitions of the bad student behavior at issue, 

and none attempted to isolate the conduct covered by federal civil rights laws. Some 

surveys included exclusion ―from activities on purpose,‖ ―spreading rumors,‖ 

―influencing relationships,‖ mild forms of teasing, and other conduct protected by the 

First Amendment.11

4. Surveys administered in schools may not have the same selection biases, but are 

unreliable for other reasons. For one thing, self-reporting, particularly with broad and 

ambiguous categories, is notoriously problematic, as pointed out by an expert whose 

work is relied upon in the Commission report. 12 Moreover, many such school surveys are 

not voluntary; when adolescents and teens are forced to do something, they often rebel. In 

short, students who are repeatedly required to answer such surveys have a tendency to 

make things up, especially when the subject relates to sexual behavior.13

 

HEALTH OF LESBIAN, GAY, BISEXUAL, AND TRANSGENDER PEOPLE: BUILDING A FOUNDATION FOR BETTER 

UNDERSTANDING 105 (2011).

10 See Anthony R. D‘Augelli et al., Suicidality Patterns and Sexual Orientation-Related Factors Among 

Lesbian, Gay, and Bisexual Youths, 31 SUICIDE AND LIFE-THREATENING BEHAVIOR 250, 252 (2001), cited in 

the report at 20 n.97.

11 See Report at 3 & nn.3, 5 (citing National Center for Education Statistics and Bureau of Justice Statistics 

study; National Education Association study). The report on page 6 cites a study where students reported being 

―bullied, teased, or taunted‖ (emphasis added). Another study relates that students reported being subject to 

―hate-related words.‖ Report at 8. The AAUW study, subtitled ―Bullying, Teasing, and Sexual Harassment,‖ 

defined sexual harassment to mean ―unwanted sexual behavior that interferes with your life. Sexual harassment 

is not behaviors that you like or want (for example wanted kissing, touching, or flirting).‖ Report at 10 n.42 

(emphasis added). Because federal jurisdiction covers only objectively serious and persistent harassment, based 

on suspect classifications, that the schools know about (or should know about if ED is correct) and that they are 

indifferent to, it is misleading to quote even reliable data on various categories of insults and slights that do not 

trigger federal jurisdiction.

12 See Mark S. Friedman et al., A Meta-Analysis to Examine Disparities in Childhood Sexual Abuse, Parental 

Physical Abuse, and Peer Victimization Among Sexual Minority and Sexual Nonminority Individuals, AMER. J.

PUB. HEALTH, Vol. 101, Issue 3 (2010) (―These data were collected through retrospective self-reports, which 

may be biased.‖).

13 See generally Thea F. van de Mortel, Faking It: Social Desirability Response Bias in Self-Report Research, 

25 AUSTL. J. ADVANCED NURSING 40 (2008) (discussing tendency of questionnaire and interview respondents 

to present favorable image of themselves, especially to socially sensitive questions). Self reporting may work 
138 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

5. Due to a combination of such problems, the survey results were wildly contradictory, at 

least as set forth in the report. For example, 2% of the students in the SCS-NCVS survey 

supposedly reported being subject to hate-related words based on gender in a given year.

Report at 8. The AAUW survey of students in grades 8-11 reported that 81% of students 

reported experiencing sexual harassment. Report at 11. Another survey of sexual 

harassment cited on page 8 claims the figure is 11%. No explanation is given for this 

wide divergence.

6. The AAUW survey also reported that boys were 33% more likely than girls (12% versus 

9%) to claim that they had been forced to do something sexual other than kissing. That 

result seems, at best, counterintuitive. Report at 10. There are several possible 

explanations for the discrepancy, including poorly designed questions, selection bias, and 

boys who like to confound researchers with poor survey controls.

There are many other examples of irrelevant and unreliable data. After pages of citation to 

such data, it is not enough that there is a sentence admitting that some of the student behavior 

cited is not ―necessarily‖ covered by federal civil rights laws. Report at 5. The Commission 

should have examined every factual claim and study, eliminated misleading or unreliable 

data, and retained only that which was reliable and has a close connection to our examination 

of ED/DOJ enforcement of the federal civil rights laws.14

Moreover, repeating and crediting others who claim that bullying is widespread or a 

―pandemic‖ without any quantitative support is misleading. How widespread? What 

constitutes a pandemic? What does Gregory Herek mean by ―pervasive,‖ which has a legal 

 

reliably well when asking respondents objectively verifiable questions such as how many cars they own or how 

many bathrooms they have in their homes. But in contrast to such ―census-type‖ questions, self-reporting is 

much less certain to elicit a truthful response to socially sensitive questions without any likelihood of 

verification.

14 The Commission majority also rejected an additional finding that we offered to prominently warn readers that 

much of the data in the report came from advocacy organizations, was not independently verified by the 

Commission, and used definitions of harassment that vary from the definition of harassment under federal law. 

Thus, not only are the data in the report unreliable and somewhat contradictory, but a majority of 

commissioners did not even want to warn readers of the underlying problems that might make them so. See

Commission Transcript at 61-63 (Aug. 12, 2011).
Peer-to-Peer Violence and Bullying 139

meaning? The Commission should have either credited or refuted such conclusions after 

carefully analyzing the reliable data or not used such loaded and contested terms.

Finally, even for the broader category of mean behavior, there is no reliable data that the 

relevant conduct is increasing, decreasing, or remaining about the same. It is necessary to 

have a baseline and consistent data over time to form any meaningful conclusions about 

whether there is a bullying ―pandemic.‖ Trends relating to ill-defined behavior in nonscientific polls are not helpful. Even more important, we want to know if schools are more or 

less responsive to such incidents over time. The Commission report contains no information 

on that whatsoever.

OCR’s Attempt to Expand Its Authority Through Creative Interpretation

Title IX prohibits schools receiving federal funds from discriminating on the basis of sex. 

Because students are not agents of the schools and the schools cannot exert the same control 

over them that even employers can exercise over their employees, the Supreme Court has 

made it clear that schools are not responsible under Title IX and analogous civil rights laws 

for all student acts. In Davis v. Monroe County Board of Education, the Court held that 

private damages actions may be brought against schools under Title IX for failure to remedy 

student-on-student sexual harassment, but ―only where [the schools] are deliberately 

indifferent to sexual harassment, of which they have actual knowledge, that is so severe, 

pervasive, and objectively offensive that it can be said to deprive the victims of access to 

educational opportunities or benefits provided by the school.‖15 The Court‘s limitations on 

school liability was a logical and reasonably necessary interpretation of Title IX because 

students are not themselves state actors whom Congress can directly regulate and schools 

exercise only limited control over them, during specific times and settings, and do not know 

everything students do and say.16

 

15 526 U.S. 629, 650 (1999) (emphasis added).

16 Id. at 645-47.
140 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

ED‘s Dear Colleague Letter of October 2010 reads Title IX and other civil rights provisions 

in a manner that would greatly expand the scope of school liability compared to the legal 

standard in Davis. For example, ED changes the first prong of what constitutes prohibited 

harassment that schools are responsible for preventing from that which is ―severe, pervasive, 

and objectively offensive‖ to that which is ―severe, pervasive, or persistent.‖17 Davis uses the 

conjunctive ―and‖ to require that all three conditions be met: that the conduct be serious, 

common, and offensive to an objective person. The Supreme Court specifically stated that 

one incident cannot give rise to liability.18 Under OCR‘s and DOJ‘s interpretation, including 

Jocelyn Samuels‘s testimony before the Commission, schools can be in violation of Title IX 

based on a single student act if the government believes it is sufficiently severe.19 OCR‘s 

formulation could also cover mild but ―persistent‖ teasing by one student of another. OCR‘s 

interpretation might also capture dozens of different playground comments by dozens of 

different children if that rendered them ―pervasive.‖ Thus, the intentional switch from the 

Supreme Court‘s conjunctive phrasing to the disjunctive phrasing by OCR and DOJ broadens 

schools‘ potential liability enormously.20

Further, OCR omits the term ―objectively offensive‖ from its formulation of the legal 

standard, potentially removing a ―reasonable person‖ protection. The Foundation for 

Individual Rights in Education (FIRE) warns in its public comment: 

The loss of the crucial ―reasonable person‖ standard means that a school‘s 

most sensitive students effectively determine what speech is prohibited. The 

―reasonable person‖ standard is a critical guard against punishing speech 

 

17 Russlynn Ali, Asst. Sec‘y for Civil Rights, U.S. Dep‘t of Educ., Dear Colleague Letter: Harassment and 

Bullying at 2 (Oct. 26, 2010) [hereinafter Dear Colleague Letter], available at

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.

18 Davis, 526 U.S. at 652-53 (unlikely that Congress intended that a single instance could be sufficiently severe 

to create liability); see also Prepared Testimony of Kenneth L. Marcus Before the U.S. Commission on Civil 

Rights at 22 (May 13, 2011) (―OCR would face a steep challenge in defending its policy in federal court, given 

that the Supreme Court rejected the single-incident approach based not upon such issues as punitive damages or 

lawyers‘ fees but upon its assessment of congressional intent in drafting the relevant language.‖).

19 Dear Colleague Letter, supra note 17, at 2 (―Harassment does not have to . . . involve repeated incidents.‖); 

Report at 4-5 (citing Briefing Transcript, supra note 5, at 48 (Samuels Testimony)).

20 Francisco Negron of the National School Boards Association testified that some lower courts are starting to 

use the OCR standard, granting deference to OCR‘s guidance. Briefing Transcript, supra note 5, at 249. Negron 

cited as an example T.K. v. New York City Dep‟t of Educ., 2011 WL 1579510 (E.D.N.Y. April 26, 2011), where 

the court found the October 26, 2010 Dear Colleague Letter to be ―useful‖ in deciding ―when a school is 

required to act, and what type of response is required.‖ Id. at *27. As we explain below, we think such 

deference is erroneous but it has understandable consequences, whether right or wrong.
Peer-to-Peer Violence and Bullying 141

based solely on subjective (and possibly unreasonable) listener reaction—

something that courts have repeatedly held unconstitutional over the years.21

OCR‘s answer to this charge—that its policy is to ―consider the conduct from both a 

subjective and objective perspective‖—is not reassuring.22 It is unclear why OCR omitted the 

―objectively offensive‖ factor, but OCR has not issued any further clarification since FIRE 

and others have pointed out the problem.

In the second harassment prong, OCR replaces the Supreme Court‘s requirement that the 

harassment ―deprive the victims of access to educational opportunities or benefits provided 

by the school‖ with the almost infinitely broad ―interfere with or limit a student‘s ability to 

participate in or benefit from the services, activities, or opportunities offered by a school.‖23

The Davis standard is closer to the work-place harassment definition, which requires a 

fundamental transformation of work conditions;24 the new OCR definition includes almost 

any slight. What range of teasing does not ―interfere with‖ a student‘s ―ability to ... benefit 

from [some specified] service, activit[y], or opportunit[y]‖ the school offers?25

OCR also changes the notice requirement from ―actual knowledge‖ to ―knows or reasonably 

should have known.‖26 The ―actual knowledge‖ requirement recognizes that the antidiscrimination law is not directed at students but at schools, and schools without knowledge 

of the harassment cannot be responsible for it.27 OCR essentially argues that since its 

enforcement actions are only prospective, it provides the necessary notice to the affected 

school districts and it would not threaten the loss of federal funding if the school agrees to 

 

21 Public Comment of FIRE at 3 (May 26, 2011).

22 Report at 67 n.328 (citing Stephanie Monroe, Asst. Sec‘y for Civil Rights, U.S. Dep‘t of Educ., Dear 

Colleague Letter: Sexual Harassment Issues (Jan. 25, 2006)).

23 Dear Colleague Letter, supra note 17, at 2.

24 See, e.g., Pennsylvania State Police v. Suders, 542 U.S. 129, 146-47 (2004) (―For an atmosphere of sexual 

harassment or hostility to be actionable, . . . the offending behavior must be sufficiently severe or pervasive to 

alter the conditions of the victim‘s employment and create an abusive working environment.‖) (internal 

quotation marks omitted).

25 See Public Comment of FIRE, supra note 21, at 3 (―This is problematic because  ̳limit‘ is a broad term that 

could encompass effects of widely varying severity, setting a far lower bar for conduct that constitutes 

harassment.‖).

26 Dear Colleague Letter, supra note 17, at 2.

27 Davis, 546 U.S. at 644 (a school not engaging directly in harassment can only be liable if its ―deliberate 

indifference subjects its students to harassment‖) (quotation marks and brackets omitted).
142 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

take remedial action it deems appropriate. Although there is some logic to this distinction in 

theory, the guidance letter itself is not clear that prior unknown incidents cannot result in a 

loss of federal funding by themselves. Indeed, the ―reasonably should have known‖ 

formulation implies otherwise. We also are concerned with the degree of leverage the 

―should have known‖ formula allows OCR in practice to insist on remedies it deems 

appropriate for such previously unknown incidents.

OCR and DOJ defend their many deviations from the legal standards articulated by the 

Supreme Court by distinguishing between a private suit for damages, as in Davis, and OCR‘s 

administrative enforcement actions, in which no damages are sought. OCR argues that the 

―standards established‖ in Gebser and Davis ―are limited to private actions for monetary 

damages.‖28 Quite true, but that doesn‘t mean that ―anything goes‖ in the administrative 

enforcement setting. Moreover, the only meaningful administrative power ED has is to deny 

school districts federal money. It seems counterintuitive to argue that the courts read a statute 

narrowly to protect a school district from paying a one-time money damage award that is 

remedial, but allow ED to read the same law as expansively as it wants, based on the same 

conduct, when the consequence could be the permanent loss of all federal money.

Professor John Eastman‘s testimony before the Commission questioned the lawfulness of 

ED‘s and DOJ‘s interpretation in the Dear Colleague Letter. He explained that an 

administrative agency does have some discretion to implement a statute but that such 

discretion is not without limit: ―An agency can impose regulations that are ancillary to the 

enforcement of a statute authorized by an enumerated power, such as rules requiring the 

reporting of certain data that is necessary to determine compliance with the underlying 

statute, but it cannot make up new prohibitions and substantive requirements that are not part 

of the relevant statute.‖ He further explained that ―the deviations between [ED‘s]  ̳Dear 

Colleague‘ letter last October and the reasonable interpretation of the relevant civil rights 

 

28 Letter from Russlynn Ali, Asst. Sec‘y for Civil Rights, U.S. Dep‘t of Educ., to Francisco M. Negron, Jr., 

General Counsel, Nat‘l School Boards Ass‘n of March 25, 2011, at 4.
Peer-to-Peer Violence and Bullying 143

statute[s] are large.‖ 29 In essence, an agency cannot vastly expand the reach of the statute in 

the guise of administering it.

Another of ED's purported distinctions is that the money damages in litigation are for 

retrospective wrongs. Since the administrative remedy is for a prospective failure to take the 

remedial action OCR deems appropriate, ED argues no school actually has to lose its federal 

money. All it has to do is change its conduct. Yet, that doesn‘t quite answer the underlying 

substantive question either. If a robber says, ―Give me you money or your life,‖ that is a 

prospective choice. No one needs to lose his money, because he can give his life, and vice 

versa. But the robber doesn‘t have the substantive right to ask anyone to make that choice, 

prospective or not. Thus, if OCR has no statutory right to ask for certain actions/remedies 

based on the underlying conduct (perhaps because it was based on a single incident), it hardly 

matters that the threat to turn off the flow of money is prospective.

OCR does not indicate what the limits on its enforcement standards are if it is not bound by 

Davis. Pursuant to regulation, could ED condition funding on school districts agreeing to 

prevent harassment based on a child‘s weight or perception of what an ideal body mass index 

should be? The regulation would arguably be in furtherance of enforcing anti-discrimination 

laws, especially if OCR argued that many perceptions of ideal body mass were linked to 

gender stereotypes. Yet, we believe such a hypothetical regulation would be an unreasonable 

interpretation of Title IX, which doesn‘t cover ―lookism‖ directly or indirectly. Such an 

unreasonable interpretation would not be entitled to deference by the courts under prong one 

of the Chevron doctrine.30 Professor Eastman‘s conclusion that OCR‘s current interpretation 

of Title IX is unreasonable seems equally correct, and thus is unlikely to be granted 

deference or upheld by the Supreme Court.31

 

29 Prepared Testimony of Dr. John C. Eastman Before the U.S. Commission on Civil Rights at 4 (May 13, 2011) 

(emphasis supplied), available at

http://www.eusccr.com/7.%20John%20Eastman,%20Chapman%20University%20School%20of%20Law.pdf. 

30 See, e.g., Cuomo v. Clearing House Ass‘n, 129 S. Ct. 2710, 2721 (2009) (Office of the Comptroller of the 

Currency regulation interpreting the National Bank Act was unreasonable to extent it prohibited state attorney 

general from suing a national bank to enforce a state law, and thus, was not entitled to deference under 

Chevron).

31 Although we believe OCR‘s liability standard would not be upheld by the Supreme Court or most other 

appellate tribunals where the matter was fairly presented, few school districts can risk losing all federal funding 

pending the outcome of a court challenge that may never reach the High Court. Moreover, casual or erroneous 
144 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

Gebser v. Lago Vista Independent School District is not to the contrary. Agencies have 

authority under comparable funding laws to investigate compliance and establish procedures 

consistent with due process for its revocation, but they have no authority from Congress to 

change the underlying substantive standard of what constitutes discrimination the state entity 

must follow.32

When the National School Boards Association pointed out in a letter to OCR how far it had 

departed from the Davis standards, OCR could have answered that the standards are meant to 

be identical or that it would change them to mirror Davis. But it did not do so. Instead, OCR 

argued that its harassment standards are ―consistent‖ with Davis, even if the ―terms‖ and 

―words‖ are ―in some ways different.‖ According to OCR, the Supreme Court‘s and OCR‘s 

―definitions are contextual descriptions intended to capture the same concept.‖33 It is risible 

to argue that standards that are ―in some ways different‖ are still ―consistent‖ as long as both 

are ―contextual‖ standards. Under that postmodern reasoning, any standard that is 

―contextual‖ is ―consistent‖ with any other ―contextual‖ standard. What about the following 

harassment standard: ―under all the facts and circumstances, might some kids feel bad‖? And 

if the standards are consistent, then why does OCR take pains to argue that its administrative 

standards defining harassment can be different from the standards in private suits for 

damages?34

Finally, OCR argues that the legal standards set forth in the Dear Colleague Letter of October 

26, 2010 are nothing new, and are essentially the same standards set forth in guidance since 

 

deference to OCR‘s position is certainly possible, even probable, in some lower courts. See Negron testimony, 

supra note 20.

32 In dicta, Gebser says that ED could require school districts to have a grievance procedure and publish a notice 

of anti-discrimination on the basis of sex. The Court states: ―Agencies generally have authority to promulgate 

and enforce requirements that effectuate the statute‘s anti-discrimination mandate, . . . even if those 

requirements do not purport to represent a definition of discrimination under the statute.‖ Gebser, 524 U.S. 274, 

292 (1989). But such enforcement requirements mentioned in Gebser do not change or alter the definition of 

discrimination in the statute; they merely supplement its enforcement, as is the case with reporting and recordkeeping requirements. OCR‘s Dear Colleague Letter attempts to fundamentally change the definition of 

discrimination.

33 See Report at 64 (quoting Letter from Russlynn Ali to Francisco Negron, supra note 28, at 4) (emphasis 

supplied).

34 See Report at 63.
Peer-to-Peer Violence and Bullying 145

1994.35 This is not a defense if the guidance was never consistent with a reasonable 

interpretation of the statute. Moreover, Chapter 7 shows that OCR guidance has not been 

consistent over the years, hewing closer to Davis in 2001 (shortly after Davis was handed 

down), then departing further by 2010. The report acknowledges that ―OCR‘s use of different 

terms in different documents can be confusing.‖36 There is an easy way to resolve any 

confusion and maintain consistency, however, and that is simply for OCR to accept the Davis

standard.

Serious First Amendment Concerns

For all of this report‘s limitations, it does at least acknowledge that OCR‘s Dear Colleague 

Letter poses thorny First Amendment questions that OCR does not satisfactorily answer.

Both the report and a recommendation adopted by the Commission call for OCR to provide 

greater clarity to address the First Amendment concerns.37 But the report notes these serious 

concerns only belatedly—this important discussion is relegated to the last 10 pages of the 

report—and in a way that gives far too much credit to OCR‘s assurances that very little of the 

harassment it sees implicates protected speech.38

The Dear Colleague Letter does not engage the free speech questions everyone else notices.

Its only references to the First Amendment are buried in footnote 8 and in its last pages, 

where the reader is simply directed to a link to OCR‘s 2003 Dear Colleague Letter on the 

subject. All the 2003 guidance document does is affirm quite generally that OCR does not 

 

35 See id. at 68.

36 Id. at 69. The Commission noted inconsistencies in OCR‘s legal standards and passed a recommendation that 

ED should ―strive to use consistent language when it articulates legal standards,‖ but rejected an amendment to 

the recommendation that ED‘s guidance should also be ―based on appropriate legal authorities.‖ Commissioners 

Gaziano, Heriot, and Kirsanow voted for this important and neutrally-worded amendment. Commissioners 

Castro, Thernstrom, Yaki, and Achtenberg voted against it. See Commission Transcript at 58-59 (Aug. 12, 

2011).

37 We did not support the report‘s recommendation number five in its current form because we have reason to 

believe OCR‘s view of the First Amendment issues is erroneous, and its evaluation of the implications of its 

guidance document on protected speech is possibly even disingenuous, as this section of our statement 

documents. Thus, what the Commission acknowledges as serious First Amendment problems (or at least 

concerns) created by OCR‘s letter are not likely to be cured by further ―guidance‖ from that Office. Proper 

guidance surely is needed, but it may have to come from the courts or from other officials who are more 

sensitive to the First Amendment and less concerned about the reach of OCR‘s power to regulate school 

conduct and student speech with broad, over-inclusive language.

38 Briefing Transcript, supra note 5, at 13 (Ali Testimony).
146 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

intend for schools to restrict students‘ constitutionally protected speech. Neither it nor the 

current Dear Colleague Letter addresses how schools are to negotiate real-world conflicts.

As briefing testimony and public comments revealed, the threat ED‘s guidance poses to 

constitutionally protected speech is not hypothetical. The guidance will quite predictably lead 

school districts to overreact and trample students‘ freedom of expression by adopting various 

zero-tolerance approaches to curb ―offensive‖ speech in an effort to avoid lawsuits and 

compliance investigations by OCR.39 The guidance also creates an incentive for school 

districts to single out for special disfavor certain kinds of speech because of its unpopularity 

or political incorrectness.40 These concerns are worthy of far greater exposition, far earlier in 

the report41 and with far less deference to ED‘s presumed good intentions.

As a preliminary matter, no one seriously disputes that schools have broad authority to 

restrict (or that they should restrict) unruly conduct, including some speech, in school when 

that conduct or speech either has created actual disruption of school activities or is likely to 

cause a ―substantial disruption of or material interference with school activities.‖42 Schools 

should attempt to prevent and punish threats of violence and acts of vandalism. Particularly 

as it relates to classroom discussion, schools can also bar the use of vulgar, lewd or indecent 

 

39 Public Comment of Neal McCluskey, Assoc. Dir., Ctr. For Educ. Freedom, Cato Inst., at 1 available at

http://www.eusccr.com/28.%20Neal%20McCluskey,%20Cato%20Institute.pdf. See also id. at 3-5 (for a more 

extensive discussion of the First Amendment issues in play, the catch-22 position schools are put in by ED‘s 

guidance and why zero-tolerance policies are inadvisable).

40 The temptation to ―engage in censorship of some students to benefit others‖ will be strong. Statement of 

Hiram Sasser, III, Dir. of Litigation, Liberty Inst., at 14 (May 13, 2011), available at

http://www.eusccr.com/11.%20Hiram%20S.%20Sasser,%20III,%20Liberty%20Institute.pdf [hereinafter Sasser 

Statement]. ―[B]ut the cause of freedom is never advanced by selective censorship of those messages with 

which the government disagrees.‖ Id. at 15.

41 For example, we argued in our May 31, 2011 comments on the first draft of the report that the First 

Amendment concerns relating to the regulation of ―cyber-bullying‖ be discussed in the chapter that addresses 

why some people want to regulate it. Instead, the alleged harm associated with cyber-bullying is discussed in 

chapter 2, but the First Amendment concerns associated with regulating it are confined to the last few pages of 

the report. Our discussion of the regulatory concerns is below.

42 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 513 (1969). Note that the school‘s ― ̳undifferentiated 

fear or apprehension of disturbance is not enough to overcome the right of freedom of expression.‘‖ Sasser 

Statement, supra note 40, at 4 (citing Tinker, 393 U.S. at 508). Likewise, the fact that someone is offended by 

the viewpoint expressed by the speech is also not sufficient to overcome the freedom of expression. See 

Statement of Eugene Volokh, Prof. of Law, Univ. of Cal., L.A., at 6 (May 13, 2011), available at

http://www.eusccr.com/27.%20Eugene%20Volokh,%20UCLA%20School%20of%20Law.pdf [hereinafter 

Volokh Statement].
Peer-to-Peer Violence and Bullying 147

terms43 as part of their pedagogical mission, as well as speech that advocates illicit drug 

use.44 While they cannot penalize students based on the viewpoints they articulate, schools 

can insist that students take care to express themselves appropriately and constructively, 

without profanities or epithets, for example. As Professor Volokh noted, schools may even 

express criticism of or condemn rude and hurtful (albeit constitutionally protected) speech.45

Schools should control substantially disruptive behaviors both to ensure that no student is 

denied educational benefits and to further the educational purpose of guiding students to 

become decent human beings who can interact in a civilized fashion with others—even those 

they disagree with or dislike.46 These are settled propositions and nothing in this statement 

should be construed to suggest otherwise. The problem with the Dear Colleague Letter (and 

with ED‘s and DOJ‘s attempt to federalize the issues of bullying and harassment more 

broadly) is that its proscriptions extend far beyond the type of classroom settings referenced 

above, and it ignores that even offensive speech in the classroom may be protected by the 

First Amendment.47

It is much less likely that schools can establish that non-threatening student speech uttered 

between classes, during lunch, or before or after school (even if unkind) is as likely to cause 

a disruption of the educational mission—and thus is subject to the same degree of 

regulation—as classroom discussion. The Supreme Court has rejected arguments that certain 

topics at certain settings are so sensitive that they may be subject to broad viewpoint 

regulation.48 This is true regardless of the age of the speakers involved.49 It has also rejected 

 

43 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986).

44 Morse v. Frederick, 551 U.S. 393, 397 (2007).

45 Volokh Statement, supra note 42, at 6.

46 ―Public schools must not merely teach abstract principles of good citizenship, they must also serve as 

controlled laboratories for students to responsibly practice their constitutional freedoms.  ̳[S]chools must teach 

by example the shared values of a civilized social order.‘‖ Brief of Amicus Curiae Claremont Inst. at 3-4, 

Morgan v. Swanson, 628 F.3d 705 (5th Cir. 2007) (No. 09-40373) (citing Fraser, 478 U.S. at 683)).

47 See Saxe v. State College Area Sch. Dists., 240 F.3d 200, 209-210 (3d Cir. 2001) (in which the court held that 

―harassing‖ or ―discriminatory‖ speech, however evil or offensive, is not categorically denied First Amendment 

protection, thereby invalidating a school district‘s anti-harassment policy as unconstitutionally overbroad for its 

impact on protected speech).

48 See, e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011) (holding that the offensive speech of picketers near 

a military funeral could not be prohibited based upon the ―viewpoint of the message conveyed‖).

49 ―Minors enjoy the protection of the First Amendment.‖ McConnell v. F.E.C., 540 U.S. 93, 231 (2003).
148 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

blanket bans by schools on all ―offensive speech.‖50 It is even less likely that schools can 

make the case that student speech outside the school (on the Internet, for example) poses the 

same risk of disruption to the school‘s activities, and thus, is subject to constitutional 

regulation.51

OCR‘s guidance acknowledges none of these important distinctions. Indeed, it applies a 

standard of liability to schools that would allow ED compliance reviewers to make after-thefact determinations that schools ―should have known‖ (rather than had actual notice) that 

student exchanges in these non-classroom settings were somehow contributing to a hostile 

environment. ED has adopted a view that essentially requires schools to be hyper-vigilant 

arbiters of any instances of student interaction that might give rise to hurt feelings.

Throughout the course of the briefing, various proponents of ED‘s aggressive approach 

sought to reassure us that the free speech problems identified by no less than five witnesses 

(and a fair number of additional public comments) were a ―red herring.‖52 They insisted that 

the only conduct they are really concerned with does not actually involve speech at all, 

except when it amounts to physical threats or creates a reasonable fear of physical harm.53

Instead, they asserted that their (and by extension ED‘s and DOJ‘s) focus is on actual 

physical harm like assault, rape, or other violence54 that are outside the scope of First 

Amendment protection.

To paraphrase a line from Professor Volokh‘s oral testimony before the Commission, we 

wish that were true.55 The Dear Colleague Letter also covers a broad array of non-threatening 

speech. The advocates‘ assurances that it does not cover such protected speech ring hollow 

 

50 The Court has rejected such proposals because, ―[a]fter all, much political and religious speech might be 

perceived as offensive to some.‖ Morse, 551 U.S. at 409. See also Texas v. Johnson, 491 U.S. 397, 414 (1989)

(―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 offensive or disagreeable.‖).

51 See generally Volokh Statement, supra note 42, at 3; Briefing Transcript, supra note 5, at 264, 306 (Volokh 

Testimony) (for a discussion of the specific First Amendment problems related to school regulation of 

―cyberbullying‖).

52 Report at 81 (citing Public Comment of Lambda Legal at 6-9)). See also Briefing Transcript, supra note 5, at 

142 (Comments of Commissioner Yaki).

53 See Report at 81-82 (citing Briefing Testimony of panelists Eliza Byard, Gregory Herek and Ilan Meyer).

54 Id.

55 Briefing Transcript, supra note 5, at 262 (Volokh Testimony).
Peer-to-Peer Violence and Bullying 149

for the reasons identified by Professor Volokh in his written and oral testimony, which is 

even summarized in the body of our report. 56 If the advocates were correct that liability for 

verbal harassment was essentially limited to physical threats, Assistant Secretary Ali should 

have said so when she responded to the NSBA letter from Mr. Negron, or in written or oral 

testimony provided to the Commission. We find it significant that she did not do so and that 

no one at OCR or DOJ has disavowed the broad language of the guidance letter that 

explicitly includes non-threatening speech.

Moreover, those few who attempt to defend the OCR‘s legal position seem fixated on two 

extreme positions on the First Amendment, neither of which we endorse. The first is the 

fictitious, First Amendment absolutist position that kids always have a right to say whatever 

they want in school,57 which is a straw man. It has not been taken by any of us or anyone we 

are aware of who has participated in this debate. The second extreme position is the one 

actually taken by some school districts: that students have no First Amendment rights. For 

example, the two school principals sued in Morgan v. Swanson and their government-funded 

attorneys took the position in court (still pending) that the Constitution ―does not prohibit 

viewpoint discrimination against religious speech in elementary schools‖ and that First 

Amendment free speech claims could not be brought by elementary school students.58 They 

maintain these positions through years of litigation even though the Supreme Court has 

consistently held since Barnette, in 1943, that the First Amendment applies to public school 

 

56 For a discussion of Professor Volokh‘s arguments that ED‘s guidance really is in large measure about speech, 

see the report at 82-83. Summarized briefly, indicators that the guidance does implicate constitutionallyprotected speech include: (1) the over-breadth of the Dear Colleague Letter‘s definition of ―harassment‖ to 

include ―verbal acts,‖ i.e., speech including name-calling and graphic or written statements; (2) its lack of 

requirement that ―harassment‖ be directed at a specific target or involve repeated incidents—the Dear Colleague 

Letter is not limited to personal insults that go to a particular person and could include general statements; (3) 

the fact that ED‘s less stringent ―sufficiently severe, pervasive or persistent‖ standard means that schools can 

now be liable for mere isolated one-offs, giving them an incentive to restrict speech; (4) the policy‘s reach, 

which purports to hold schools responsible for speech created off-campus (such as cyber-bullying) and 

suggesting that students could be punishable for such speech throughout the entirety of their school lives (what 

Volokh calls ―24/7 control of student speech‖); (5) the fact that the guidance goes beyond personal insults to 

reach even gossip; and (6) the fact that the Dear Colleague Letter may reach even criticism of religion or 

homosexuality based on the theory that such speech, if severe, pervasive or persistent enough, creates an 

offensive or abusive environment.

57 Report at 85 (quoting Public Comment of Stuart Biegel at 4) (noting that the Seventh Circuit has ―rejected the 

notion that First Amendment absolutist arguments should be controlling in a K-12 education setting‖).

58 627 F.3d 170, 176 (5th Cir.) (internal quotation marks omitted), reh‟g en banc granted, 628 F.3d 705 (5th Cir. 

2010). 
150 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

children,59 and that public school students do not ―shed their constitutional rights to freedom 

of speech or expression at the schoolhouse gate.‖60 OCR‘s Dear Colleague Letter fails to 

address the real problem of school officials, like these in Texas, who misunderstand what the 

Constitution requires. Our concern is that the short shrift given to the First Amendment in the 

Dear Colleague Letter will actually lead to more illegal censorship like that in Morgan.

We find the Dear Colleague Letter‘s imposition of responsibility on schools to police cyberbullying to be quite revealing of OCR‘s position on the potential scope of school liability for 

non-threatening student speech. ―Cyber-bullying‖ has no set meaning beyond what its 

detractors declare it to mean. As best we can surmise, it seems nothing more than a 

derogatory label for electronic speech that someone else doesn‘t like. This open-ended 

―cyber-bullying‖ largely occurs off-campus and after school hours, in such electronic media 

as private Facebook postings, emails, text messages, G-chats, and YouTube videos. Its 

potential to create school liability is a stark example of OCR‘s policy overreach and lack of 

concern for First Amendment freedoms.

As the General Counsel for the National School Boards Association observed:

If schools are to be held accountable for all bullying behavior that may 

constitute harassment under federal civil rights laws, including that which 

takes place in cyberspace but makes its way onto campus overtly or by effect, 

schools will understandably feel the need to patrol electronic communications 

by students. But taking on this burden may be an act of futility, for how can a 

school patrol private internet sites with any measure of effectiveness? And yet 

the ―should have known‖ standard would suggest that schools must police 

such venues to avoid liability under the OCR enforcement standard. The 

current confusion among courts as to what off-campus behavior can be 

 

59 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Former U.S. Solicitor General and D.C. 

Circuit Court of Appeals Judge Ken Starr was retained by the very same Barnett sisters who prevailed in their 

First Amendment case before the Supreme Court in 1943 to file a brief in the Morgan case to help convince 

these school officials that elementary school children are protected under the First Amendment‘s guarantee of 

free speech and that they may not discriminate against religious viewpoints. Brief for Amici Curiae Gathie 

Barnett Edmonds and Marie Barnett Snodgrass, 627 F.3d 170 (5th Cir.) reh‟g en banc granted, 628 F.3d 705 

(5th Cir. 2010) (No. 09-40373). (The Supreme Court case caption does not match the names of the Barnett 

sisters because the courts misspelled their family surname during the litigation. Id. at 2 n.1.) See also the brief 

authored by former U.S. Solicitor General Paul Clement and Liberty Institute lawyers on behalf of the school 

children in Morgan, making similar legal points as well as describing the school officials‘ outrageous actions in 

violating student speech rights. Supplemental En Banc Brief of Appellees, id.

60 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
Peer-to-Peer Violence and Bullying 151

regulated by schools, combined with the OCR enforcement position, results in 

an untenable expectation that schools police off-campus online behavior while 

ultimately facing liability for conduct over which they have no control.61

It is highly unlikely, though admittedly not impossible, that a bully would transmit an 

actionable physical threat via email, chat or text, because even teenagers are aware that 

creating a record of such a physical threat could result in their arrest or other serious 

punishment. Instead, our record reflects that the ―cyber-bullying‖ concern is that electronic 

means would be used to perpetrate the following categories of conduct the anti-bullying 

activists want to stamp out: ―spreading rumors,‖ ―interfering with relationships,‖ and 

disparaging the target‘s physical or personality traits in an attempt to make them feel badly 

about themselves. We do not condone such conduct, but the First Amendment does not only 

protect speech most people like.

The First Amendment problems with ED‘s guidance are only exacerbated by its expansive 

theory of school liability and multiple examples of conduct that it asserts constitute 

actionable harassment under the civil rights laws. (See the previous section of this statement 

for more on OCR‘s erroneous legal standard of liability.) ―OCR is creating an expectation 

that school officials are to respond to each and every offensive incident as if it were a civil 

rights violation.‖62 The practical effect of the Dear Colleague Letter is that Title IX will be 

used to foist a federally-imposed general civility code on schools and students across the 

country.

Consider ED‘s application of its erroneous standard that any ―severe, pervasive or persistent‖ 

conduct could create a hostile environment. Although single-incidents could not create an 

actionable hostile environment under the legal standard articulated by the Supreme Court, 

under ED‘s current enforcement stance, it is possible for ―one-offs‖ to create liability if they 

are sufficiently severe. 63 Thus, it is not difficult to imagine how administrators could think 

 

61 Statement of Francisco M. Negron, Jr., General Counsel, National School Boards Association at 4-5 (May 13, 

2011), available at

http://www.eusccr.com/24.%20Francisco%20Negron,%20National%20School%20Boards%20Association.pdf.

62 Id. at 4.

63 ―But if every instance implicates a federal right, educators will have no choice but to take formal steps in 

even the most mundane cases to avoid agency liability and prepare for a legal defense.‖ Id. at 9.
152 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

that even pure expression, if deeply offensive, might contribute to a hostile environment and 

so try to regulate it.

Similarly revealing of the intended scope of ED‘s guidance is its imposition of liability on 

schools for not sufficiently addressing a ―hostile environment‖ or ―hostile school climate.‖

ED‘s current guidance defines harassment to include speech such as graphic and written 

statements, and such statements need not be directed at a specific target. Thus, ED‘s 

definition of harassment is not restricted to insults directed at a particular individual. It also 

includes general statements, such as statements critical of homosexual conduct or particular 

religions. 

Drs. Herek and Meyer testified about their theory that the mental health of gay students is 

negatively affected by the stigma and prejudice of society towards homosexuality, which will 

at times be expressed in the form of speech. General derogatory statements by students will 

be taken as evidence by OCR that a school has permitted an environment hostile to gay 

youth. Taken logically, that means that constitutionally protected speech expressing or 

contributing to ―stigma‖ must be regulated by schools to avoid liability for the allegedly 

hostile environment.64 It might be very difficult for a school district to satisfy OCR‘s 

standards without proscribing all speech that can be construed as hostile to gay youth.

Similar examples have been borne out in litigation.65 ED must be aware that the issuance of 

such guidance will put schools in a catch-22. Yet, it also knows that schools are more likely 

to accept the risk of potential private lawsuits over the suppression of student free speech for 

nominal damages than they will be to cross regulators who control the purse strings of their 

federal dollars.66

 

64 Briefing Transcript, supra note 5, at 263 (Volokh Testimony).

65 See, e.g., Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006), vacated as moot, 549 U.S. 1262 

(2007) (mem.) (case involving whether school could properly prohibit a student from wearing a T-shirt 

expressing his views on homosexuality).

66 As our colleague Commissioner Heriot notes in her dissenting statement, there is no federal agency charged 

with safeguarding students‘ First Amendment rights. There is at least one private group—the Foundation for 

Individual Rights in Education (FIRE)—that works on such issues, but they primarily confine their efforts to 

infringements on individual rights at colleges and universities. Given this asymmetry of incentives, many 

schools may be tempted to over-reach in the direction of avoiding litigation over bullying than in the direction 

of avoiding litigation over First Amendment concerns.
Peer-to-Peer Violence and Bullying 153

A number of witnesses at the Commission‘s May 13 briefing identified the difficult 

definitional and line-drawing problems the Dear Colleague Letter forces upon school 

districts.67 Francisco Negron, General Counsel of the National School Boards Association, 

testified to the schools‘ very real concern over ―the tension . . . between student freedom of 

expression and the regulation of hostile environment.‖68 Unfortunately, schools have a track 

record of outrageous violations of students‘ freedom of speech. Hiram Sasser‘s testimony 

contains troubling examples of schools that are already taking a heavy-handed approach to 

non-disruptive speech involving students‘ belief in God and similar expressive conduct.69

Such non-disruptive speech is routinely censored based on fear that it might cause offense to 

someone, somewhere.

The facts of Morgan v. Swanson70 are just one example of the heavy-handed censorship 

many administrators already exercise to deny student speech. In that case, two principals 

were sued for clear religious viewpoint discrimination, and the students ultimately were 

vindicated, even though their claim for money damages has dragged on for many years, with 

the principals refusing to admit they did anything wrong after years of litigation. One 

principal prohibited kids from distributing ―goodie bags‖ at a ―winter break‖ party because 

the bags contained items with religious references, including pencils bearing the message, 

―Jesus is the reason for the season,‖ and candy-cane pens with information regarding the 

Christian origin of the symbol. Another child was not permitted to give her friends tickets to 

a free Christian drama production at her church, even though she attempted to do so during 

non-curriculum time and with no material or substantial disruption to the school. The 

principal confiscated the tickets to the play, threatened to kick the child out of school and 

even threatened to have the child‘s parent arrested over the attempted distribution of such 

material, not because gift giving was inappropriate but because the play was religious in 

nature.

 

67 See, e.g., Briefing Transcript, supra note 5, at 63 (Clegg Testimony).

68 Id. at 250-51 (Negron Testimony).

69 See Sasser Statement, supra note 40, at 7-11 (chronicling specific examples).

70 628 F.3d 705 (5th Cir. 2007).
154 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

These are not isolated examples. Schools have attempted to prevent a Muslim student from 

wearing her hijab in class, have banned all religious items and certain Valentine‘s Day and 

Christmas cards because they were religious, and have even tried to prevent a kindergartner 

from praying over her snack with two classmates.71 In Harper, a high school student was 

interrogated and chastised by school personnel and security personnel, including one wearing 

a sidearm, that he ―had to leave his faith in the car‖ because he wore a T-shirt with a Bible 

verse expressing his views against homosexuality during the school‘s ―day of silence.‖72 The 

Dear Colleague Letter, which lacks any accompanying guidance to schools regarding speech 

that they should not forbid, will only lead to more wrongful censorship and more litigation.

The Dear Colleague Letter‘s reference to system-wide training to combat a perceived hostile 

climate might also conflict with students‘ First Amendment rights. For example, it explains 

that it is insufficient for a school to recognize and respond to individual incidents on a caseby-case basis and only by punishing individual harassers. ―Instead, school district [sic] must 

recognize and respond to a  ̳hostile environment‘ with a  ̳systemic response‘  ̳reasonably 

calculated to end the harassment and prevent its recurrence.‘‖73 The ―systemic and 

comprehensive‖ actions the guidance contemplates include ―training or other interventions 

not only for the perpetrators, but for the larger school community.‖74 As Hiram Sasser noted 

in his testimony, to the extent that such training induces participants to affirm or agree with 

propositions that are contrary to their personal beliefs, such actions constitute compelled 

speech in violation of the First Amendment.75

The report cites public comments by Erwin Chemerinsky and Stuart Biegel, who argue that 

those who have expressed concern about students‘ First Amendment rights should be 

comfortable with deferring to the judgment of school officials about how best to handle and 

classify offensive speech.76 Yet, the enforcement agenda announced by ED and DOJ will 

 

71 See cases collected in Sasser Statement at 7-11.

72 Sasser Statement, supra note 40, at 10 (citing to aspects of the factual background in Harper, 445 F.3d at 

1171-73).

73 Letter from Francisco Negron, General Counsel, NSBA to Charlie Rose, General Counsel, U.S. Dept. of Ed. 

at 4 (Dec. 7, 2010), available at http://www.nsba.org/SchoolLaw/Issues/NSBA-letter-to-Ed-12-07-10.pdf. 

74 Dear Colleague Letter, supra note 17, at 3.

75 Sasser Statement, supra note 40, at 16.

76 Report at 84-85.
Peer-to-Peer Violence and Bullying 155

chill most rational educators from instituting anything other than what the federal 

government instructs.77 The hypotheticals will not be construed as optional ―best practices‖; 

they will become requirements. For schools that already censor too much student speech, the 

guidance will only add to the denial of student rights.

For all ED‘s protestations that its approach hews closely to established precedent and that it 

does not seek to supplant the judgment of school administrators, but to work closely and 

cooperatively with them, the policy‘s over-breadth betrays ED‘s true intent. Its efforts are 

likely to produce the precise effect on school districts that Justice Kennedy warned about in 

his dissent in Davis:

The only certainty flowing from the majority‘s decision is that scarce 

resources will be diverted from educating our children and that many school 

districts, desperate to avoid Title IX peer harassment suits [or compliance 

investigations], will adopt whatever federal code of student conduct and 

discipline the Department of Education sees fit to impose upon them. The 

Nation‘s schoolchildren will learn their first lessons about federalism in 

classrooms where the Federal Government is the ever-present regulator.78

Unfortunately, we do not share some of our colleagues‘ confidence that ED‘s issuance of a 

new Dear Colleague Letter containing First Amendment guidance will be sufficient to cure 

the earlier Letter‘s infirmities or to stem the practical threats to protected speech. In part, that 

is because we do not think that protected speech is merely an accidental casualty here.79

Treating all student taunts as potential civil rights violations may score political points with 

various favored constituencies, but it creates a host of thorny legal tangles that school 

districts and their attorneys, administrators, and students have to wade through. ―Civil rights 

laws [and by extension the agencies that enforce them] do and should regulate conduct, 

barring employers or school officials from engaging in discriminatory practices. . . . But laws 

 

77 Briefing Transcript, supra note 5, at 250 (Negron Testimony).

78 Davis, 526 U.S. at 657-58 (Kennedy, J., dissenting). 

79 Nor do some of our witnesses. See, e.g., Briefing Transcript, supra note 5, at 293-94 (Volokh Testimony) 

(―[O]ne thing that troubles me about a lot of this discussion including the Dear Colleague Letter is the sense that 

there‘s sort of denial going on. That there really isn‘t any speech issue in play. Sometimes the claim is  ̳this is 

conduct, not speech,‘ even though the conduct consists of verbal acts which is another way of saying speech. 

Sometimes the claim is  ̳it's harassment and not speech,‘ even though if you label speech  ̳sedition‘ or 

 ̳harassment‘ or  ̳intentional infliction of emotional distress,‘ that doesn't strip it of constitutional protection.‖).
156 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

can‘t make people like each other; and laws can‘t force people to speak politely, civilly, or 

inoffensively, unless we aim for a world in which everyone is equal and no one is free.‖80

Discrimination Based on Sexual Orientation Is Effectively Covered under Title IX

Title IX of the Education Amendments of 1972 prohibits public and private schools that 

receive federal money from discriminating ―on the basis of sex.‖81 In the employment 

context, the Supreme Court has held that discrimination-based sex stereotyping can violate 

Title VII of the Civil Rights Act of 1964, such as where an accounting firm would not 

promote a woman to partner because of her aggressiveness even though aggressiveness is a 

requirement for the job. This placed the woman in an ―intolerable and impermissible catch 

22‖ and thus constituted discrimination because of sex.82 The Supreme Court has also held 

that sexual harassment violating Title VII can occur where the harasser and victim are of the 

same sex.

83

ED acknowledges that ―Title IX does not prohibit discrimination based solely on sexual 

orientation.‖84 This is a proper reading of the statute based on Congress‘s original intent. As 

Roger Clegg put it, ― ̳sex‘ does not mean  ̳sexual orientation,‘ and it certainly did not mean 

that in 1972.‖85 ED and DOJ further state that Title IX prohibits both offensive sex 

stereotyping, which includes harassment of boys or girls who don‘t measure up to some 

notion of masculinity or femininity, respectively, and other forms of sexual harassment 

regardless of the students‘ actual sexual orientation or perceived sexual orientation. Whether 

or not Title IX was intended to cover sex stereotyping, several lower courts have so held.86

 

80 Wendy Kaminer, Anti-Bullying Laws & the Misguided Drive for Social Equality, THE ATLANTIC (Dec. 2, 

2010), available at http://www.theatlantic.com/national/archive/2010/12/anti-bullying-laws-and-the-misguideddrive-for-social-equality/67322/ (also submitted by Ms. Kaminer for the record as a public comment).

81 20 U.S.C. § 1681(a).

82 Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989), superseded by statute on other grounds.

83 Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998).

84 Dear Colleague Letter, supra note 17, at 8 (emphasis supplied).

85 Prepared Testimony of Roger Clegg, President and General Counsel, Center for Equal Opportunity, Before 

the U.S. Commission on Civil Rights at 7 (May 13, 2011), available at

http://www.eusccr.com/6.%20Roger%20Clegg,%20Center%20for%20Equal%20Opportunity.pdf. 

86 See, e.g., Pratt v. Indian River Cent. Sch. Dist., 2011 WL 1204804, *11 (N.D.N.Y. Mar. 29, 2011) 

(―[H]arassment based on nonconformity with sex stereotypes is a legally cognizable claim under Title IX.‖); 

Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219, 226 (D. Conn. 2006) (―If not for her status as a 
Peer-to-Peer Violence and Bullying 157

The analogy to Hopkins and Oncale is logical, and the courts are unlikely to narrow their 

interpretation of what has come to constitute sex stereotyping under Title IX.

Yet the report concludes that there is a gap in federal civil rights enforcement because 

harassment that is solely based on sexual orientation or gender identity is not prohibited, 

even though harassment based on sex stereotypes is prohibited. Report at 55. The report 

raises the specter that this ―dichotomy may create a perverse incentive for alleged 

discriminators to evade Title IX liability by asserting that students‘ harassment is based 

entirely on homophobic animus.‖ Id. But the report points to no evidence that schools are 

successfully avoiding liability by claiming that the harassment is based on sexual 

orientation.87

ED told the Commission that it does not track complaints alleging discrimination or 

harassment based solely on sexual orientation, yet there is no evidence from ED or DOJ that 

there has ever been a complaint that presents a pure ―sexual orientation‖ claim to track.

Instead, ED claims it does not distinguish between sex harassment claims of heterosexual and 

LGBT students and whether they involve sex stereotyping. Report at 35. Thus, given the 

broad legal precedents, the likely student harassment scenarios, and the lack of contrary 

evidence, it seems quite doubtful there is a ―gap‖ in federal enforcement authority as a 

practical matter, at least in the real world.

Unfortunately, four commissioners defeated attempts to clarify a finding that ―federal civil 

rights laws do not protect students from peer-to-peer harassment that is solely on the basis of 

sexual orientation.‖ Such a finding can only mislead readers about the state of the law. Four 

commissioners rejected an amendment that would have added language at the end of the 

 

female, a reasonable trier of fact could conclude that Andree would not have been called the offending slurs. As 

such, Andree, a female student, targeted by other female students and called a variety of pejorative epithets, 

including ones implying that she is a female homosexual, has established a genuine issue of fact as to whether 

this harassment amounts to gender-based discrimination, actionable under Title IX.‖); Montgomery v. 

Independent Sch. Dist. No. 709, 109 F. Supp. 2d. 1081, 1092 (D. Minn. 2000) (―[B]y pleading facts from which 

a reasonable fact-finder could infer that he suffered harassment due to his failure to meet masculine stereotypes, 

plaintiff has stated a cognizable claim under Title IX.‖).

87 The report cites one case where the defendant school board argued that the statements in question were about 

sexual orientation and not gender, but, as the report notes, the court rejected this argument. Report at 55 & 

n.283 (citing Riccio, 467 F. Supp. 2d at 225). 
158 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

finding informing readers that ED, DOJ, and the courts have nevertheless interpreted federal 

civil rights laws ―as protecting students from peer-to-peer harassment that is based on 

conforming, or failing to conform, to stereotypical notions of masculinity and femininity.‖88

The three of us voted for adding the clarifying language, with Gaziano noting that there is no 

evidence in the report of a single instance in which a harassment claim failed because it was 

based ―solely‖ on the student‘s sexual orientation. The three commissioners supporting the 

clarification did not propose to strike the finding adopted by the majority, but simply urged 

that it be made reasonably complete.

As adopted, the Commission‘s finding is highly misleading about ED‘s enforcement efforts 

and the current state of the law, even if a few instances of non-enforcement based ―solely‖ on 

sexual orientation can be found. The current finding strongly implies there is no federal 

protection for students who are harassed or subjected to violence based on their nonconformity to sexual stereotypes, when all such sex stereotyping claims are cognizable, and 

there is no reason to think that many sexual minority students can make out one claim but not 

the other. No sensible reason was provided by the commissioners who rejected the 

clarification, and no substitute amendment was offered by them that would make the finding 

less misleading. As it is written, however, the finding serves the political agenda of those 

who seek to argue that an intolerable ―gap‖ exists in the federal civil rights protection that 

must be filled with new legislation.

Even so, the pending bills mentioned in the report and most strongly supported by the 

advocates to address this issue do not merely close this alleged enforcement ―gap.‖ Instead, 

they impose many new requirements and cover much new ground that would have significant 

unintended consequences.89 Such legislation should be evaluated on its own merits, or lack 

 

88 Commissioners Castro, Thernstrom, Yaki, and Achtenberg voted against adding the clarifying language. See

Commission Transcript at 31 (Aug. 12, 2011).

89 The Safe Schools Improvement Act, S. 506, defines harassment even more broadly than OCR—as ―conduct . 

. . that adversely affects the ability of one or more students to participate or benefit from the school‘s 

educational programs or activities . . . .‖ The phrase ―adversely affects‖ is broader than OCR‘s phrase ―interfere 

with or limit,‖ which in turn far exceeds the ―deprive‖ standard in Davis. The Act would require states to collect 

and report on ―the incidence, prevalence, age of onset, perception of health risk, and perception of social 

disapproval of bullying and harassment by youth in elementary schools and secondary schools.‖ It would also 

require local school boards to adopt anti-bullying policies and procedures, including formalized, written 

grievance procedures. The Student Non-Discrimination Act, H.R. 998, likewise goes beyond putting sexual 
Peer-to-Peer Violence and Bullying 159

thereof. The supposed ―gap‖ in Title IX coverage should not be used as an excuse to promote 

or disguise something much broader.

Rebuttal to Statements by Other Commissioners

As Commissioner Heriot explained in her accompanying dissent, three of us voted against 

the decision by the Commission‘s majority to abruptly cancel our ongoing enforcement 

report project for FY 2011, which was to investigate the DOJ‘s use of cy pres agreements.

Given the Commission‘s sensible past practice in which a new majority sets the course for 

future studies but continues ongoing projects (especially those more than half-way 

completed), the cancelation of the cy pres study was highly unusual and inappropriate, 

regardless of the preference the new majority had to study something more to its liking this 

fiscal year.90

We also objected to the decision in March of this year to launch and attempt to complete a 

competent investigation of the student bullying topic generally and the federal agencies‘ 

enforcement efforts relating thereto. We maintained that this particular topic could not be 

adequately investigated in a few months before the draft report had to be produced for 

review. We also objected to (and voted against) some of the timetables and procedures 

adopted to produce the draft report in such a short time frame. Our predictions that nothing 

meaningful could be completed on this topic in the time allotted have been proven correct, 

although our foresight was probably due more to our years on the Commission rather than 

anything else.

 

orientation and gender identity on the same footing as race, color, national origin, sex, or disability in the 

federal anti-discrimination laws. The Act also prohibits harassment based on ―the actual or perceived sexual 

orientation or gender identity of a person or persons with whom a student associates or has associated,‖ while 

adopting OCR‘s broad standard of what constitutes harassment. Such an expansion of prohibited harassment in 

federal law would certainly open the door to more litigation against school districts.

90 We also join Commissioner Heriot‘s regret that the new majority also canceled: (1) the ongoing investigation 

into DOJ‘s handling of and ultimate dismissal of most of its New Black Panther Party lawsuit, and (2) the 

original research into whether certain colleges and universities were discriminating against women in 

admission. See Heriot Dissenting Statement at 185 n.14.
160 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

Putting aside those significant objections, however, we concur in Chairman Castro‘s 

description of the collegiality in which the briefing in May was organized, the constructive 

efforts (under the circumstances) of our career staff to deal with the short deadlines dictated 

by the shift in topic, and the fair-minded way in which Chairman Castro conducted the 

briefing. The failure of our career staff to conjure data that does not exist is understandable.

Notwithstanding the serious substantive concerns with the report expressed in this statement, 

we especially appreciate the efforts Commissioners Achtenberg and Castro made to try to 

turn a sow‘s ear of an investigation into a silk purse report. That we believe their wellmeaning efforts largely failed to produce what they hoped should not be interpreted as a lack 

of respect for them personally. Indeed, we regret the necessity of pointing out several of our 

continuing disagreements with them below.

Is Greater Federal Involvement in K-12 Bullying Helpful or Counterproductive?

A. Leaps of Logic in the Concurring Statements

The accompanying statements by Commissioners Achtenberg, Castro and Yaki contain 

certain common assertions that incorporate a non sequitur and a related leap of logic. The 

non sequitur is that because bullying of various types is harmful (ignoring for now that there 

is absolutely no evidence whether the level of bullying has changed since the dawn of time), 

there is a need for greater federal involvement to solve the problem. The related leap of logic 

is that because various anti-bullying efforts at the state and local level are not uniform, there 

is naturally a great need for uniform national standards.

The concurring statements make no, or almost no, attempt to connect the dots on these non 

sequiturs and logical fallacies, yet their favored policy recommendations of increasing the 

federal government‘s involvement and passing more national laws do not logically follow 

from either premise. For example, Chairman Castro writes that there is evidence that students 

are being bullied because of their membership in protected classes, and ―[w]hen that 

happens, I believe the Federal government has an important role to play.‖91 This is an 

 

91 Castro Statement at 91.
Peer-to-Peer Violence and Bullying 161

illogical leap for several reasons. Students are not themselves state actors. Many instances of 

peer-to-peer bullying may not be known to school officials. More importantly, if the schools 

take adequate and appropriate steps to address bullying they reasonably become aware of, 

there is no federal issue. The Fourteenth Amendment prohibits state actors from denying 

equal protection of the laws to their citizens; it does not empower the national government to 

right all wrongs in the first instance, no matter how real. At a minimum, there must be 

substantial evidence in the record that states are systematically ignoring the rights of students 

in certain protected classes before greater federal intervention would be warranted. There is 

no such evidence.

There are many more serious crimes that occur ―nationwide‖ that most people, even 

intuitively, know should not be federalized with uniform, national prohibitions. Murder and 

sexual assaults are devastating crimes, but states vary in countless significant ways regarding 

how they define the different levels of homicide, the type of sexual assault offenses, the age 

of consent for statutory rape, the penalties for each, and the criminal procedures for proving 

those different offenses and various defenses (insanity, for example). It‘s highly doubtful that 

federal preemption of homicide and sexual assault offenses would prevent more of them (for 

many of the same reasons we explain below relating to bullying), but it would be 

unconstitutional for the national government to try. For similar reasons, it probably would 

not help if Congress were able to supplement state laws with general, federal homicide and 

sexual assault statutes.

Unless one naively believes that all instances of teasing and mean behavior can be stopped 

among the 55 million American students, it is necessary to seriously analyze the efforts the 

schools are taking to address the issue. No attempt was made to do so in the Commission‘s 

report or the concurring commissioner statements. It also would be necessary to carefully 

analyze any additional efforts that might arguably improve the situation before leaping to the 

conclusion that the federal government could naturally do a better job. Better than what?

What is the baseline? Assuming, arguendo, that it is simply a matter of increased resources 

and effort that is needed, why can‘t the local schools do more with those extra resources?

Indeed, dealing with DOJ and OCR attorneys and the rest of the federal bureaucracy, for 
162 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

example, will diminish the time principals, teachers, and administrators spend making their 

schools better.

Commissioners Castro, Achtenberg, and Yaki seem to assume that national, uniform 

standards are always better, without any explanation. They call for federal anti-bullying 

statutes because, as Commissioner Castro writes, ―current state-level anti-bullying laws 

neither protect all students nationwide nor provide all students with equal and consistent 

levels of protection from state to state.‖92 Yes, but so what? Most students only go to school 

in one state at a time. Why isn‘t it enough that the state where any given student lives has 

laws that protect him or her? Moreover, the same legal characterization is true for murder, 

rape, and theft laws; there is no reason to fear that the lack of uniformity would cause a 

problem in prosecuting any particular case.

The District of Columbia and 47 states now have anti-bullying statutes, and two of the 

remaining three states have statewide anti-bullying regulations.93 All states prohibit violence 

and threats of violence, regardless of the motive involved, which is what the anti-bullying 

activists and our fellow commissioners claim they are either exclusively or most concerned 

about. (That is also the most common understanding regarding their repeated references to 

―student safety.‖) Moreover, the schools of every state and territory have the inherent ability 

and institutional history of addressing student bullying that pre-dates and supplements these 

specific anti-bullying laws and regulations. There is absolutely no evidence that particular 

states are deficient in enforcing such laws, regulations, and practices.

If the claim was that one or more of the states had deficient laws, regulations, or policies, that 

might support an argument for the particular state or states to reform their laws and practices.

But neither the Commission‘s report nor our fellow concurring commissioners‘ statements 

analyzed the state enforcement record or made that argument. As the previous section of this 

joint dissent explains, we suspect the disconnect is at least partly because those who favor 

 

92 Castro Statement at 92. See also Yaki Statement at 217 (stating, without the least explanation, that the 

protections he favors ―must be uniform‖); Achtenberg Statement at 121: ―[T]he lack of consistency among state 

laws demonstrates the need for federal legal protections.‖ With due respect, it demonstrates nothing of the kind.

93 See supra note 6.
Peer-to-Peer Violence and Bullying 163

new federal legislation do so not out of a love of uniformity per se—or a coherent argument 

that uniformity provides better protections for students who go to school in only one state at a 

time—but because they want to provide additional power and responsibility to the national 

government for other reasons. Perhaps they have sincerely come to believe that the national 

government is the best, most effective level of government there is. We don‘t share that view, 

but we think there are additional reasons to believe that increased federal intervention is 

likely to be counterproductive in this area that ED has admitted is ―primarily a local 

responsibility.‖

B. Reasons Why Greater Federal Intervention May Be Counterproductive.

We previously noted that there is no relevant data relating to violations of the federal civil 

rights laws concerning student-on-student harassment; no relevant data, evidence, or analysis 

of ED‘s or DOJ‘s effectiveness in enforcing the relevant federal laws; and no helpful 

information or analysis regarding the efforts K-12 schools are undertaking to enforce either 

the federal laws or otherwise respond to student bullying or harassment generally. Yet OCR 

is attempting to greatly expand its authority in this area with legally erroneous ―guidance,‖ 

which Commissioners Achtenberg, Castro and Yaki seem to support. We now offer a brief 

reflection on whether such expansion of federal authority is likely to help or hurt.

In addressing the question, we do not mean to impugn federal officials‘ subjective motives 

for attempting to expand their power. It is human nature for federal officials, or anyone for 

that matter, to believe that expanding their power will do a world of good. Indeed, the vast 

majority of individuals enter government service with the best of intentions, but it is also 

human nature for such officials to increasingly come to believe that the common good 

coincides with their self interest. The public choice literature shows that whatever serves to 

increase bureaucratic authority is a powerful predictor of what bureaucrats will seek, but it is 

not surprising that they rationalize their behavior and sincerely come to believe that they 

know what is best.
164 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

A serious study of relevant data on student-on-student harassment and schools‘ responses 

thereto might be necessary to definitively answer the question of whether more federal 

involvement would help or hurt in preventing bullying, but the following reasons should 

counsel against the lazy assumption that greater federal involvement is always better. And 

with regard to what even Assistant Secretary of Education Russlynn Ali conceded is 

―primarily a local responsibility,‖ our analysis suggests that more federal involvement is 

quite likely to be counterproductive.

 First, increased federal pressure will inevitably increase the number of ―zero tolerance‖ 

responses to alleged harassment with ridiculous results. As Commissioner Heriot pointed 

out in her accompanying dissenting statement, kids in preschool and kindergarten are 

already suspended or arrested too often for trying to hug their teachers or kiss their 

classmates.94 But things can get worse. Even the Antioch College conduct code ridiculed 

on Saturday Night Live would not go far enough for current activists‘ tastes. At least the 

Antioch College code permitted one student to ask another whether he could hold hands, 

hug, or kiss his romantic interest.95 Some activists now purport to define bullying to 

include ―unwelcome‖ flirting,96 which is hardly an aggressive act, and in any event, is 

preliminary to asking for a date. Will K-12 schools have to pass comprehensive new 

 

94 See Commissioner Heriot‘s Statement at 189-90. See also, e.g., Outcry Spurs School to Lift Boy‟s Suspension 

for Kissing, ST. LOUIS POST-DISPATCH, Oct. 3, 1996 (6-year-old North Carolina boy suspended for kissing girl 

on cheek); JuJu Chang et al., First Grader Labeled a Sexual Harasser, ABC NEWS, April 4, 2008, available at

http://abcnews.go.com/GMA/AsSeenOnGMA/story?id=4585388. During the 2005-06 school year in the state 

of Maryland, 28 kindergarteners were suspended for ―sex offenses, including 15 for sexual harassment.‖ 

Yvonne Bynoe, No Hugs Allowed, WASH. POST, Oct. 22, 2007.

95 The Antioch College policy still states: ―Consent is defined as the act of willingly and verbally agreeing to 

engage in specific sexual conduct. . . . Consent is required each and every time there is sexual activity.‖ Eugene 

Volokh, GETTYSBURG COLLEGE JOINS ANTIOCH COLLEGE, THE VOLOKH CONSPIRACY, May 11, 2006 (quoting 

Antioch College policy) (emphasis added), available at http://volokh.com/posts/1147374096.shtml; see also

FIRE, Gettysburg College: Hug at Your Own Risk, May 11, 2006 (―Under the [Gettysburg College] policy, 

 ̳consent‘ to sexual interaction is defined as  ̳the act of willingly and verbally agreeing (for example, by stating 

―yes‖) to engage in specific sexual conduct. If either person at any point in a sexual encounter does not give 

continuing and active consent, all sexual contact must cease, even if consent was given earlier. . . . The policy‘s 

broad definition of sexual interaction includes not only sex acts but also  ̳brushing, touching, grabbing, 

pinching, patting, hugging, and kissing.‘‖). See also Sandy Hingston, The New Rules of College Sex, 

PHILADELPHIA MAG., Sept. 2011. Justice Kennedy‘s dissent in Davis cites a 1994 sexual harassment manual 

which suggests that a comment as mild as ―You look nice‖ from one student to another could be sexual 

harassment, depending on the ―tone of voice,‖ how the student looks at the other student, and who else is 

around. 526 U.S. at 326.

96 Report at 10 n. 42 (citing American Association of University Women, Hostile Hallways: Bullying, Teasing, 

and Sexual Harassment in School 20-21 (2001) (unwelcome ―flirting‖ is sexual harassment)).
Peer-to-Peer Violence and Bullying 165

speech codes that prohibit ―unwanted‖ date requests unless a student‘s Facebook status 

expressly welcomes all new date invitations? What other restrictions on sexual innuendo 

will be required? As Professor Volokh noted: ―Romantic problems occasionally cause 

suicide. We don't go out there and start pervasively regulating romance because of that 

danger including a danger to teenagers.‖97 Volokh‘s first point is undoubtedly correct, but 

a lot of activists would like to prove him wrong on his second point.

 Second, expanded federal authority to investigate incidents of K-12 school bullying will 

divert federal attention from the rare but serious cases in which a particular school or 

school district really is indifferent to protected-class-based violence. The troubling racial 

violence in a South Philadelphia high school explored by the Commission in its May 

2011 briefing is a potent example.98 It seems to us that DOJ should have been quicker to 

respond, especially since serious injury and potential loss of life was at play. Almost all 

schools do want to stop all forms of bullying, and it is not just because they fear liability 

for damages, although that is surely an additional incentive to follow the law. The 

massive resistance to desegregation in the 1950s-70s is not an apt analogy to instances of 

student-on-student harassment because there is no evidence that schools in general are 

indifferent to the serious incidents of harassment of any of their students. Nevertheless, 

the existing federal law, properly understood, provides an important backstop for race or 

similar class-based violence that a few schools might ignore. Helen Gym‘s testimony 

about the un-checked violence in Philadelphia at our briefing is cited as proof that the 

federal government should intervene to stop violence. We agree, but her testimony 

actually supports our view that there is a critical role for federal officials when schools 

are deliberately indifferent or contribute to serious racial violence. Our fear is that this 

critical, but limited, role might get diluted or ―defined down.‖ When DOJ and ED are 

busy policing offensive ―eye rolling‖ or taking depositions about the tone of voice in 

 

97 Briefing Transcript at 307 (May 13, 2011).

98 In December 2009 at a high school in South Philadelphia, African-American students attacked Asian 

American students, sending 13 of them to the hospital, despite repeated complaints to school officials and 

requests for protection from the Asian-American students, which went largely unheeded. Report at 13; see also

Krissah Thompson, Justice reaches pact with Philadelphia schools in ‟09 attacks on Asian American students, 

WASH. POST, Dec. 15, 2010.
166 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

which a compliment was offered, they divert resources and undermine respect for the 

more serious incidents of violence and harassment.

 Third, greater federal regulatory involvement to prevent teasing and the like that doesn‘t 

rise to the level of what the Supreme Court defined as prohibited federal harassment will 

undercut the accountability local school officials and state legislators have to parents and 

students to prevent and address all types and degrees of bullying. The more the federal 

government acts as the savior, no matter how well meaning that may be, the more 

attention will be directed to Washington. It is hardly surprising that activists of all stripes 

focus their energy on federal action, but few consider whether that will backfire if the 

federal government is really unable to make a difference. Since few acts of bullying do 

rise to the level of a federal civil rights violation, this diffusion of responsibility will have 

a sadly counterproductive result. Local officials who should be responsible can partially 

evade their accountability by playing the blame game: ―we are complying fully with the 

federal guidelines, and the feds haven‘t provided enough money to combat the problems 

that overwhelm our schools.‖ This is hardly a trivial concern. Given the many thousands 

of local school officials involved, even a slight dilution in local accountability can have a 

larger impact than a corresponding increase in responsibility at the national level.

 Fourth, as Commissioner Heriot demonstrated in her accompanying dissent and we 

explained during the Commission‘s May 13 briefing, 800-pound gorillas from 

Washington, DC tend to get their way, but their ways are not always best. One-size-fitsall rules and wrongheaded ideas from Washington may have various counterproductive 

effects. One unfortunate example is the recent, federal ―school discipline‖ agenda, that 

could require less discipline for certain types of students who deserve it to prevent a 

―disparate impact.‖99 Moreover, 800-pound gorillas may not like local experimentation 

and local solutions.

 

99 In March 2010, Secretary of Education Arne Duncan announced that ED would initiate a number of 

compliance reviews to examine, among other things, whether schools are disciplining certain protected 

categories of students too much and others too little. For example, OCR proposes to use ―disparate impact‖

theory and statistical analysis to determine whether a given school is disciplining blacks more than their 

expected ratio, or perhaps, disciplining boys more than girls of the same age. A finding of discrimination might 

follow. The Commission questioned OCR at a briefing on the topic early this year. See Testimony of Ricardo 
Peer-to-Peer Violence and Bullying 167

 Fifth, one of the zero tolerance responses worthy of special note is that the ―antibullying‖ indoctrination called for by many of the activists may violate freedom of 

conscience and actually teach intolerance, instead of meaningful tolerance of differing 

opinions.100 One frequent reply to this concern is that sensitivity training need not require 

students to affirm anything they don‘t believe. That is true in theory, but testimony from 

Hiram Sasser at our briefing suggests that forced indoctrination and intolerance are 

already too common in such supposedly ―tolerance‖ building programs. For example, in 

Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006), judgment 

vacated for other reasons, 549 U.S. 1262 (2007) (mem.), a high school student was 

prohibited from wearing a T-shirt expressing his opposition to homosexuality since it ran 

counter to the school-sponsored ―day of silence.‖ Judge Kozinski in dissent explained 

that the particular ―Day of Silence‖ program was ―a political activity that was sponsored 

or at the very least tolerated by school authorities.‖ The majority even quotes school 

administrators saying they were especially concerned about the T-shirt because it was 

being worn the day after the Day of Silence. In short, the student‘s speech was banned 

because it was contrary to the schools‘ recent program of indoctrination on ―tolerance.‖

OCR‘s call for more of this training is likely to make matters worse.

 

Soto, Office for Civil Rights, U.S. Dep‘t of Education Before the U.S. Commission on Civil Rights (Feb. 11, 

2011). In contrast to OCR, several of the teachers and local authorities who also testified shared our view that 

the right amount of discipline was what the students individually deserved, regardless of their race or gender 

and whether or not their protected group had reached its discipline quotient for the week. Indeed, we expressed 

concern OCR‘s policy could have serious negative consequences, harming minority students in classes with a 

number of disruptive classmates who are not disciplined enough because federal bureaucrats convince teachers

they will pay a price if their disciplinary tally sheet doesn‘t look right. Briefing Transcript on Disparate Impact 

in School Discipline at 113-15 (Feb. 11, 2011).

100 Hiram Sasser of the Liberty Institute in both his written and oral testimony quoted the following passage 

from the Supreme Court‘s opinion in Tinker:

Any departure from absolute regimentation may cause trouble. Any variation from the 

majority‘s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the 

campus, that deviates from the views of another person may start an argument or cause a 

disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 

U.S. 1 (1949); and our history says that it is this sort of hazardous freedom—this kind of 

openness—that is the basis of our national strength and of the independence and vigor of 

Americans who grow up and live in this relatively permissive, often disputatious, society.

Written Statement of Hiram Sasser at 16-17 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 

503, 508-09 (1969)).
168 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

Thus, on one side of the ledger is the absence of any evidence, or even a coherent argument, 

that greater federal involvement in preventing student-on-student bullying or harassment will 

help. Our thoughts above provide some important reasons to believe greater federal 

involvement will backfire, particularly as it undermines local accountability to address the 

real problems and leads to ridiculous results and increased denials of student freedoms.

Problems with the Data Cited in Concurring Commissioner Statements

According to the Commission‘s statute, our annual enforcement report is supposed to 

―monitor Federal civil rights enforcement efforts in the United States.‖101 Thus, this report 

should have focused almost exclusively on whether ED and DOJ are correctly interpreting 

the relevant federal anti-discrimination statutes, such as Title IX and Title VI, and whether 

they are taking appropriate actions against schools that are actually violating those statutes.

The time spent in the report and concurring commissioner statements discussing the 

frequency of teasing, acts of exclusion, rumor mongering, and undefined bullying that does 

not violate federal law is largely off point, since those discussions tell us nothing about the 

federal government‘s enforcement of the relevant federal anti-discrimination laws, and 

whether schools are following federal law.

Another problem is that many of the studies cited in the report and relied upon by other 

commissioners combine survey terms such as ―bullied, teased, or taunted‖102 or ―threatens or 

insults.‖103 In each case, the less serious conduct is likely to be much more common, but the 

report treats them as if they are describing ―violence‖ or, at the least, ―bullying.‖104 Even the 

use of the word ―harassment‖ has a markedly different meaning depending on the context of 

the question and the type of respondent. A typical teenager might say ―my parents harass me 

constantly to clean my room and get good grades‖ or ―my teacher is always harassing me to 

do better in school.‖ To a lawyer who litigates workplace sexual harassment cases, 

 

101 42 U.S.C. § 1975a(c)(1) (emphasis supplied).

102 Report at 6 (citing JOSEPHSON INSTITUTE, 2010 REPORT CARD ON THE ETHICS OF AMERICAN YOUTH 175 

(2010)).

103 Report at 7 (citing SIMONE ROBERS ET AL., NAT‘L CTR. FOR EDUC. STATISTICS, INST. FOR EDUC. SCIENCES,

U.S. DEP‘T OF EDUC. & BUREAU OF JUSTICE STATISTICS, INDICATORS OF SCHOOL CRIME AND SAFETY: 2010, at 

42 n.30).

104 See, e.g., Report at 5-7.
Peer-to-Peer Violence and Bullying 169

harassment has a technical, legal meaning. When teens are asked about harassing conduct by 

fellow students, it is very important to review how that question is asked, and no matter how 

the question is posed, teens are not likely to give the word ‖harassment‖ its legal meaning. 

For example, the California Healthy Kids Survey, relied on in the Commission‘s report for 

data on ―verbal harassment on school property,‖ asked students if there were any ―mean 

rumors‖ or ―lies spread about‖ them, or if they were ―made fun of because of [their] looks‖ 

or the ―way‖ they ―talk.‖105 Thus, as Commissioner Thernstrom points out, we must be very 

careful to look at the type of questions asked in these surveys and not jump to conclusions 

when the survey summary uses terms like ―bullying,‖ ―harassment,‖ and the like.

Commissioner Achtenberg dismisses such concerns for precision and our federal jurisdiction 

with a somewhat sweeping, general claim: ―There can be no doubt that peer-to-peer bullying, 

harassment, and violence against students due to their race, national origin, sex, disability, 

religion, and/or sexual minority or gender non-conforming status are serious and pervasive 

problems in the United States‖ (emphasis added).106 We have a sense that bullying is a 

serious issue for some schools, as it has been for decades, but exactly how serious and 

whether it is ―pervasive‖ in any meaningful sense is entirely unclear. For example, there is no 

reliable data in the report or commissioner statements whether it is more or less pervasive in 

rural, suburban, or urban schools. We can venture a guess, but it would be just that. Do some 

states do a much better job, such that bullying is not ―pervasive‖ (which is itself a legally 

loaded term) in any of its districts? The report and concurring commissioner statements offer 

no clue on that important question.

The data cited in the report and in the concurring commissioner statements are so 

inconsistent and biased, based on self-reports and self-selecting non-probability samples, that 

we cannot often distinguish the possible reliable factoid from the worthless dross. That is 

why we urged the Commission to verify the studies it cited. As part-time commissioners, we 

did not have the time to do this ourselves, but the more we examine studies brought to our 

 

105 WESTED HEALTH & HUMAN DEVELOPMENT PROGRAM FOR THE CAL. DEP‘T OF EDUC., CALIFORNIA 

HEALTHY KIDS SURVEY: STUDENT WELL-BEING IN CALIFORNIA, 2007-2009, GRADES 7, 9, 11: MAIN REPORT 37.

106 Achtenberg Statement at 126. Commissioner Castro agrees, asserting without citation to any source that 

―tens of thousands or hundreds of thousands‖ of students are bullying victims. Castro Statement at 91.
170 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

attention, the higher the percentage of worthless and misleading studies we think exists.

Unfortunately, some of our fellow commissioners seem to have been too trusting, and by 

relying on the studies cited in the report and by advocacy witnesses, they have unwittingly 

undermined their own positions.

Commissioner Thernstrom‘s statement contains many of the same data criticisms that we 

document, and Commissioner Heriot not only concurs in this statement, her own dissenting 

statement raises similar criticisms. Thus, four commissioners—Gaziano, Kirsanow, Heriot 

and Thernstrom—have expressed serious concerns about the reliability and relevance of the 

data cited in the report. Even Commissioner Yaki acknowledges that the report suffers from 

an ―inability to thoroughly scour the literature‖ and a ―rushed timeline.‖107 Commissioner 

Titus resigned from the Commission before the report or its findings were voted on, and her 

replacement, Commissioner Kladney, understandably abstained from voting on the report 

and almost all of its findings. Accordingly, only two of eight commissioners seem to express 

great confidence in the report‘s data, with double that number expressing grave doubts about 

its reliability and Commissioner Yaki staking out a middle ground. That level of distrust is 

telling in itself.

Despite Commissioners Achtenberg and Castro‘s efforts to sidestep the issue, there still is no 

data on whether bullying has increased or decreased over the past five, ten, twenty, or 10,000 

years. Professor Eastman testified that bullying has gone on as long as there have been 

schools, and we bet it pre-dated the creation of schools by many millennia. Before 

policymakers increase federal intervention in this area, they should know whether bullying 

has increased or decreased over time. And if any increase is shown to be unrelated to the 

degree of federal intervention or negatively correlated, this would seriously undermine the 

case for more federal intervention.

Concurring commissioners‘ citation of the number of complaints received by OCR and DOJ 

adds nothing to nothing. OCR does not distinguish between peer-to-peer harassment and 

 

107 Yaki Statement at 214. Commissioner Yaki limited most of his initial statement to discussing LGBT or 

LGBT-identified children, writing that there was ―[s]ubstantial evidence introduced‖ showing harm to them due 

to bullying, id. at 216, yet he does not mention or embrace any particular study or set of studies.
Peer-to-Peer Violence and Bullying 171

harassment by teachers or administrators. Thus, we do not know how many of the complaints 

relate to peer-to-peer harassment. We also have no idea how many complaints are 

meritorious. While OCR received 4,433 harassment complaints of all kinds from 2005 

through 2011—out of approximately 55 million K-12 students—there were only 138 

voluntary resolution agreements related to peer-to-peer harassment during this same six-year 

period. And a voluntary resolution agreement does not mean the school was deficient: a 

school may have adequately addressed the problem, and the agreement merely conforms to

what the school has done.

We cannot address all our concerns with the other data relied upon in the concurring 

commissioner statements, but we will focus on a few areas of special concern. Commissioner 

Kirsanow offered the motion that added disability to the scope of the report, and we agree 

there is reason to suspect that disabled students may be more vulnerable to bullying and less 

likely to report it. Thus, the lack of reliable data with regard to bullying of disabled students 

is particularly disappointing to us. Commissioner Achtenberg acknowledges ―there has been 

 ̳very little research‘‖ with regard to bullying of students with learning disabilities,108 yet the 

studies she cites are still highly problematic.

The report‘s claim that 94% of parents of children with Asperger Syndrome report that their 

children had been bullied, citing a 2009 article by Susan Carter, is highly misleading. The 

94% figure actually comes from an article by Little (2002) which is merely cited in the 2009 

Carter article. Most importantly, the Little study reported on frequencies of bullying by 

―siblings and/or peers.‖109 Such a study tells us nothing valuable about peer-to-peer bullying 

in schools because the figures may be mostly describing more frequent sibling behavior in 

the home. (Despite our loving relationships with our siblings today, while growing up, few 

weeks would pass without bullying among our siblings. We would expect reports of 99% 

bullying by siblings who are close in age.)

 

108 Achtenberg Statement at 102.

109 Susan Carter, Bullying of Students with Asperger Syndrome, 32 ISSUES IN COMPREHENSIVE PEDIATRIC 

NURSING 145, 146 (2009), cited in the report at 14-15 n.66; Achtenberg Statement at 103.
172 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

The further claim that 65% of parents of children with Asperger Syndrome reported that their 

children had been victimized by peers, with 50% reporting their children were scared by 

peers, though this time produced by the Carter study, are still highly misleading. The Carter 

study, like the Little research, included bullying committed by ―a brother or sister.‖110 Sibling 

behavior in the home is beyond the control of schools. Such incidents do not implicate 

federal jurisdiction. The Commission should have carefully analyzed the details in this and 

the other studies before citing them in the report.

The report‘s explicit disclaimer that much of the data cited in it are questionable does not 

absolve the Commission or commissioners for citing unreliable or misleading studies. Even 

given the rushed nature of the report, it is still surprising how many errors and misleading 

uses of data are contained in a couple of sentences in the report describing the Carter study, 

which we reviewed because another commissioner mistakenly relied upon the report‘s 

citation to it. Such errors call into doubt claims made throughout the report about the 

frequency and severity of peer-to-peer bullying.

Even on its own terms, the Carter study has a number of limitations. The author herself noted 

several serious issues: Only 34 parents participated in the study, a ―relatively small‖ sample 

size. The parents were not randomly selected, but were instead recruited ―online, in clinics, 

and at autism conferences,‖ and ―may not be representative of the true population.‖ 

Moreover, ―parents may have exaggerated their child‘s experiences of victimization and 

shunning.‖ Finally, ―the reliability and validity of the both [sic] measures used are still being 

determined.‖111 Indeed, the Carter study from 2009 found significantly less victimization of 

students suffering from Asperger Syndrome than the Little study from 2002.112

In the first portion of this joint dissent, we also noted the dramatically contradictory surveys 

cited in the report on sexual harassment. Commissioner Achtenberg relies heavily on only 

one of them, the 2001 AAUW study in which 81 percent of students in grades 8 to 11 

supposedly reported experiencing sexual harassment. The California Healthy Kids Survey of 

 

110 Carter, supra note 109, at 147.

111 Id. at 146, 148, 152.

112 Id. at 151.
Peer-to-Peer Violence and Bullying 173

the California Department of Education, also cited prominently in the report, is administered 

to hundreds of thousands of public school students in grades 7, 9, and 11 in that state. Eleven 

percent of the respondents in the 2007-2009 survey reported being subject to harassment 

based on gender.113 The report cites both numbers as equally valid, even though the 

difference is a factor of seven. And only two percent of students reported in another study 

being targeted by ―hate-related words‖ on the basis of gender.114 Such wildly divergent 

percentages should call all of them into question, but we previously noted other reasons to 

doubt the AAUW study.

The report and one of the concurring commissioners also claim that 800 incidents of rape or 

attempted rape and 3800 incidents of sexual battery that were not rape were reported by 

schools in the 2007-08 school year, according to ED‘s National Center for Education 

Statistics.115 Rape and sexual battery are serious crimes in all states and jurisdictions, and we 

hope all appropriate cases were the subject of a successful criminal investigation and 

prosecution, as warranted. Yet, as serious as those crimes are, some corrections and 

perspective are in order. The report wrongly says there were 800 incidents of rape reported 

by schools, when the underlying study it cites says there were actually 800 rapes or 

attempted rapes reported by schools.116 It would be helpful to know how broadly ―attempted 

rape‖ is defined for this purpose. However it is defined, this mischaracterization of attempted 

rape as rape is yet another example of the rushed and erroneous way data is handled in the 

report. Second, given the number of preschool and kindergarteners who were cited for sexual 

harassment for hugging and attempted kissing in some school districts (see Commissioner 

Herriot‘s dissenting statement), we also wonder what type of conduct schools reported under 

―sexual battery.‖ And finally, we need some baselines to put all such figures in perspective. 

There are about 55 million primary and secondary students. The rate of reported rape and 

attempted rape in the ED report was less than .05 per 1000 students and roughly 0.1 per 1000 

 

113 Report at 9.

114 Id.at 8.

115 Id. at 11.

116 See SIMONE ROBERS ET AL., NAT‘L CTR. FOR EDUC. STATISTICS, INST. FOR EDUC. SCIENCES, U.S. DEP‘T OF 

EDUC. & BUREAU OF JUSTICE STATISTICS, INDICATORS OF SCHOOL CRIME AND SAFETY: 2010, at 104.
174 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

students for sexual battery that was not rape,117 which is, according to our review of DOJ‘s 

Bureau of Justice Statistics website, a tiny fraction of these crimes for teens overall.

With regard to another category of students, Commissioner Achtenberg proposes to find that 

forty to fifty percent of sexual minority and gender non-conforming youth are subject to 

peer-to-peer bullying, harassment, or violence, citing the public comment of Professor Mark 

Friedman. As an initial matter, forty percent is half the 81 percent of all students reporting 

sexual harassment in the AAUW study. Moreover, the comparison of figures in Friedman‘s 

underlying article is not as striking as his comment to the Commission in which he 

summarized the results. Both the Friedman public comment and our report left out the results 

for heterosexual males and females, which put the numbers in some context.118 Moreover, the 

usual caveats about studies based on retrospective self-reporting apply, as even Friedman 

admits they ―may be biased.‖119

But whatever the actual level of teasing, harassment, bullying, or other ―bad‖ conduct, 

neither the report nor concurring commissioner statements show that local school districts 

across the country are failing to deal with such issues appropriately. If schools are acting 

reasonably, there is no need for an expanded federal role. There remains a need for the 

federal government to act swiftly, as in the South Philadelphia high school case where school 

officials appear to have been grossly negligent in the face of racial violence. Thankfully, such 

cases seem to be quite rare.

Sexual Minority Stress Theory

The minority stress theory, as described by Professors Herek and Meyer, is as follows:

Sexual minority youth have no inherent physical or mental health problems relative to other 

youth. Yet, they have worse health outcomes, particularly mental health outcomes, which are 

 

117 Id.

118 Mark S. Friedman et al., A Meta-Analysis to Examine Disparities in Childhood Sexual Abuse, Parental 

Physical Abuse, and Peer Victimization Among Sexual Minority and Sexual Nonminority Individuals, AMER. J.

PUB. HEALTH Vol. 101, Issue 3 (2010).

119 Id. at *18.
Peer-to-Peer Violence and Bullying 175

most likely caused by societal stigmatization of homosexuality.120 This theory may have 

some validity, though it has been questioned by other scholars. Ritch Savin-Williams 

(Department Chair, College of Human Ecology, Cornell University) has noted the 

significant, positive change in attitude of the American public toward gay individuals since 

1995, which has greatly reduced social stigmatization of homosexuality.121 Lisa M. Diamond 

(Department of Psychology, University of Utah) has questioned the importance of gayrelated stress, pointing to ―[e]vidence suggest[ing] that the average sexual-minority youth 

spends as much time ruminating about normative adolescent concerns such as love and 

romance as about gay-specific stressors such as hate crimes or familial rejection.‖122

Even if true, the minority stress theory is beside the point. Most of the examples cited by 

Commissioner Achtenberg, which certainly are troubling, are beyond the control of any 

school. She quotes from a report that ―[c]ontemporary health disparities based on sexual 

orientation and gender identity are rooted in and reflect the historical stigmatization of 

[LGBT] people.‖123 Commissioner Achtenberg notes that families may reject a child due to 

his or her sexual identity and the structural stigma of homosexuality; there is a heightened 

risk of parental abuse; there is a higher rate of homelessness; gay youth face ―heightened risk 

of substance abuse, including tobacco, alcohol, and illegal drugs;‖ police and courts might be 

biased against them (although could any disparities in punishment be due to their using 

alcohol and illegal drugs more?); and gay youth ―appear to engage in risky sexual behavior at 

disproportionate rates.‖124 As cruel as parental rejection is, let alone parental abuse and the 

risky behaviors described above, this may easily swamp what goes on at school. The simple 

truth is that there is no study that reliably measures whether bullying at school on the basis of 

 

120 See Report at 19 & n.90.

121 See Ritch C. Savin Williams, Then and Now: Recruitment, Definition, Diversity, and Positive Attributes of 

Same-Sex Populations, 44 DEVELOPMENTAL PSYCHOLOGY 135, 135 (2008) (collecting studies on American 

attitudes toward gay people).

122 Lisa M. Diamond, New Paradigms for Research on Heterosexual and Sexual-Minority Development, 32 

Journal of Clinical Child and Adolescent Psychology 490, 495 (2003) (―[A]lthough gay-related stress might be 

the most salient mechanism through which sexual-minority status influences adolescent development, it is not 

necessarily the most predominant or important.‖).

123 Achtenberg Statement at 110 (citing INST. OF MED. OF THE NAT‘L ACADEMIES, THE HEALTH OF LESBIAN,

GAY, BISEXUAL, AND TRANSGENDER PEOPLE 32 (2011) (emphasis added)).

124 Achtenberg Statement at 109-12 (internal quotation marks omitted).
176 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

sexual orientation causes any particular, measurable degree of harm. It would be a very 

difficult effect to study, but perhaps in time there will be a way to measure it.125

Moreover, students may disassociate themselves from others for all sorts of wrongheaded 

and mean reasons, but that does not by itself constitute ―bullying‖ unless it is defined 

downward to include ―acts of exclusion‖ that some activists are pushing for. It certainly does 

not implicate federal civil rights laws, and for a good reason. Neither the state nor the federal 

government is responsible for policing friendships. Government must not discriminate in its 

own right, but it is not liable for the historical stigmatization or bigotry held by individuals in 

society.126

The Supreme Court in Davis held that for a school district to be responsible for peer-to-peer 

harassment, it must ―retain substantial control over the context in which the harassment 

occurs‖ and ―exercise significant control over the harasser.‖ Usually the misconduct must 

occur ―during school hours and on school grounds.‖127 Thus, schools have a role to play, but 

under federal law, they are only responsible for addressing ―severe, pervasive, and 

objectively offensive‖ conduct that they are aware of that denies an equal opportunity to 

certain students to learn or benefit from school programs. All people of good will should 

work to reduce irrational societal stigmatization. Yet to cast all bigotry as ―bullying‖ is 

inaccurate and not productive to that end.

“Neutrality” Policies

Commissioners Achtenberg, Castro, and many public commenters (including one witness 

cited from our May briefing) are critical of what they refer to as school district ―neutrality‖ 

 

125 Commissioner Heriot‘s dissenting statement and rebuttal discusses various reasons why the ―negative 

outcomes‖ gay youth appear to suffer may more likely result from causes besides peer bullying.

126 See, e.g., Missouri v. Jenks, 515 U.S. 70, 121 (1995) (Rehnquist, C.J.) (―Psychological injury or benefit is 

irrelevant to the question of whether state actors have engaged in intentional discrimination . . . .‖). Likewise, it 

has no bearing on whether school officials have shown deliberate indifference to ―severe, pervasive and 

objectively offensive‖ gender-based harassment of students in violation of Title IX. See Davis, 526 U.S. at 650 

(emphasis supplied). Thus, the volumes of conflicting and potentially misleading social science research on a 

possible underlying psychological predisposition to bullying are wholly irrelevant to Title IX enforcement 

decisions.

127 Davis, 526 U.S. at 646.
Peer-to-Peer Violence and Bullying 177

policies, though they only refer to one: the ―Sexual Orientation Curriculum Policy‖ in 

Minnesota‘s Anoka-Hennepin School District No. 11. They express concern that this policy 

discourages or prohibits teachers and administrators from talking about bullying based on 

sexual orientation, but the policy says nothing of the sort. The Anoka-Hennepin policy only 

governs what should be taught as part of the district‘s official curriculum, and it specifically 

contemplates that staff may need to address issues relating to sexual orientation. It requires 

neutrality when they do so and further stresses that ―it is important that staff do so in a 

respectful manner that is age-appropriate, factual, and pertinent to the relevant curriculum.‖

The policy is worth quoting in full:

It is the primary mission of the Anoka-Hennepin School District to 

effectively educate each of our students for success. District policies shall 

comply with state and federal law as well as reflect community standards. As 

set forth in the Equal Education Opportunity Policy, it is the School District‘s 

policy to provide equal educational opportunity and to prohibit harassment of 

all students. The Board is committed to providing a safe and respectful 

learning environment and to provide an education that respects the beliefs of 

all students and families.

The School District employs a diverse and talented staff committed to 

serving students and families from diverse backgrounds. The School District 

acknowledges that one aspect of that diversity regards sexual orientation. 

Teaching about sexual orientation is not a part of the District adopted 

curriculum; rather, such matters are best addressed within individual family 

homes, churches, or community organizations. Anoka-Hennepin staff, in the 

course of their professional duties, shall remain neutral on matters regarding 

sexual orientation including but not limited to student led discussions. If and 

when staff address sexual orientation, it is important that staff do so in a 

respectful manner that is age-appropriate, factual, and pertinent to the relevant 

curriculum. Staff are encouraged to take into consideration individual student 

needs and refer students to the appropriate social worker or licensed school 

counselor.

Whatever one thinks of the actual policy, it is nothing like the caricature of it that appears in 

the press and elsewhere.128 The policy acknowledges the need to ―prohibit harassment of all 

 

128 The policy‘s implementation is currently being challenged in court. To our knowledge, the Commission 

neither requested nor received testimony or other information from the school district on its policy. Only one 

side of the issue was thus presented at our briefing, from a parent who seems to have mischaracterized the 

district‘s written policies. Had we known that the district‘s policy was going to be raised at the briefing, we 

would have urged the Commission to invite a representative from the district to testify. But as discussed in this 
178 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

students.‖ The district‘s goal is a ―safe and respectful learning environment‖ and to respect 

―the beliefs of all students and families.‖ The policy acknowledges that the diversity of 

students, families, and staff includes ―sexual orientation.‖ And it is not a general neutrality 

policy but a ―curriculum‖ policy: extended teaching about sexual orientation is not part of the 

curriculum, but the district goes to some pains to explain that this policy shall not be read to 

cut off discussion of sexual orientation when appropriate to the regular curriculum.

The district has other policies addressing bullying and LGBT issues.129 Its ―Harassment, 

Violence and Discrimination Policy‖ notes that sexual orientation is one of the protected 

classifications set forth in the district‘s Equal Educational Opportunity Policy. The district 

―prohibits any form of discrimination including sex, race, religion, disability or any other 

protected classification [which includes sexual orientation].‖ It is a violation of the policy 

―for any student or District personnel through conduct or communication to harass; inflict, 

threaten to inflict or attempt to inflict violence; or discriminate against a pupil or other 

District personnel on the basis of sex, race, religion, disability or any other protected 

classifications set forth in . . . the District‘s Equal Educational Opportunity Policy [which 

includes sexual orientation].‖

The district also has a comprehensive anti-bullying policy protecting all students. The district 

has issued anti-bullying training and support programs for staff and students, which notes 

that ―we have a number of board policies designed to prevent harassment or bullying for any 

reason, including sexual orientation or gender.‖ One of the materials provided is a power 

point presentation for staff, ―Sexual orientation and Harassment: A Guide for Protocol and 

Response,‖ ―on how to respond to anti-GLBT language and harassment and how to assist 

students who come out.‖ The district has a number of other GLBT-specific trainings and 

programs as well.

 

section, we have reviewed the court complaint and other material on both sides of this issue. The curriculum 

policy itself and the school district‘s anti-bullying policies are all contained in publicly available documents.

129 See ANOKA-HENNEPIN SCH. DIST., GLBT ISSUES, TRAINING AND AWARENESS, available at

http://www.anoka.k12.mn.us/education/components/scrapbook/default.php?sectiondetailid=297819.
Peer-to-Peer Violence and Bullying 179

Certainly the general description of the policy by its critics seems quite mistaken. 

Commissioner Achtenberg also writes in her statement that the implementation of the 

curriculum policy was problematic, citing the plaintiffs‘ allegations in a lawsuit filed against 

the school district, among other things. That issue is still the subject of litigation,130 so the 

court may determine if it was implemented in a manner inconsistent with law. Whatever the 

result, however, there is no support for the conclusion that all curriculum policies of this sort 

are problematic.

Religion

Although prohibitions on national origin discrimination may sometimes overlap with 

religious bigotry, discrimination based on religion is not itself banned by Title VI. We voted 

for a motion to amend finding number two, clarifying that ED ―interprets federal civil rights 

laws to provide it with jurisdiction to protect students from peer-to-peer harassment that is 

based on the student‘s actual or perceived shared ancestry or ethnic identity rather than on 

the students‘ religious practices.‖131 Congress may want to go further than ED‘s 

interpretation and consider prohibiting all discrimination on the basis of religion in 

government-run schools, but it should consider the appropriate remedies for this prohibition 

and a number of exemptions for religious institutions if the law applies beyond governmentrun schools. The contours of such exemptions are difficult to draw,132 and the implications of 

additional liability in this area should be carefully weighed.

Commissioner Yaki’s Statement

Commissioner Yaki argues that there is a compelling governmental interest in protecting 

LGBT students from bullying, which overrides students‘ free speech interests. His citation of 

Supreme Court authority for this proposition is extremely curious. We have previously 

explained why even the most well-settled government interests do not trump all student 

 

130 Doe v. Anoka-Hennepin Sch. Dist. No. 11, No. 11-01999 (D. Minn. filed July 21, 2011). 

131 Commissioners Achtenberg, Castro, Thernstrom, and Yaki opposed and defeated the motion at the 

Commission‘s August 12, 2011 business meeting to clarify the finding to explain the full reach of ED‘s 

enforcement authority.

132 See Prepared Testimony of Kenneth L. Marcus at 15-16.
180 Dissent and Rebuttal Statement of Commissioners Gaziano and Kirsanow

speech rights and justify whatever anti-discrimination or anti-harassment policy wellmeaning bureaucrats dream up.133

In any event, ED cannot, as Commissioner Yaki urges, withhold federal funding from 

schools on whatever basis it or he thinks proper while awaiting Congress to ratify that 

authority. Section 5 of the Fourteenth Amendment grants Congress the power to enforce the 

Amendment‘s terms, not any agency of the federal government. Sexual orientation is 

effectively covered under Title IX because OCR and the courts interpret sex discrimination 

to include discrimination based on sex stereotypes. And Title VI protects groups that have an 

actual or perceived shared ancestry or ethnic characteristics who also share a religion. ED 

can no more expand the protection for religion or add new categories than it can prohibit 

―lookism.‖ It can only enforce the statutes enacted by Congress, which must be interpreted in 

a manner faithful to their text.

 

133 See also Commissioner Heriot‘s reply to Commissioner Yaki‘s First Amendment arguments in her 

accompanying dissenting statement at note 28.
Peer-to-Peer Violence and Bullying 181

DISSENTING STATEMENT OF COMMISSIONER GAIL HERIOT, WITH WHICH 

COMMISSIONERS PETER KIRSANOW AND TODD GAZIANO CONCUR

I. Background to the Report: A Twice-Told Tale Rather Than an Investigation

This report has been a disappointment—though its shortcomings can in no way be 

attributed to our staff. The responsibility must lie with the Commission itself. Switching 

topics at the last possible moment made it impossible for the report to be anything but an 

uncritical re-telling of the positions of the Department of Education and the Department of 

Justice—along with a very brief nod to a few of the objections to those positions.1 Nothing 

that can be dignified with the term ―investigation‖ has occurred here. No useful new 

evidence is uncovered. No serious analysis has been engaged in.2

In the Commission‘s charter, Congress requires us to produce at least one report each 

year critiquing the manner in which a federal agency enforces civil rights laws.3It is for that 

reason that the Commission is frequently referred to as a ―civil rights watchdog.‖4 Our job is 

to be fair and independent critics.

 

1 The brief discussion of the objections to the policy is contained almost exclusively in the last chapter of the 

report.

2

I agree with my colleagues Commissioners Todd Gaziano and Peter Kirsanow that none of the empirical 

studies on bullying cited in the report is relevant to the issues before the Commission. See Joint Dissent and 

Rebuttal of Commissioners Gaziano and Kirsanow. These studies do not show that the kind of bullying for 

which school districts can be held legally accountable for is widespread. Moreover, they do not show that 

school districts are failing to respond to the problem. Some of these polls are unscientific internet questionnaires 

that are far from random samples of students. See GLSEN Survey 2009. One would have to expect that victims 

of bullies are more interested in visiting the GLSEN web site and responding to such polls. All appear to use 

definitions of bullying or harassment that are overbroad and include activity that would be protected under the 

First Amendment or that would more properly be classed as tactlessness. In some cases, eye-rolling or engaging 

in gossip is classed as bullying. See Report at 3. It would have been useful to analyze each of these studies and 

discuss exactly what they do or do not establish. But there was no time for such meticulous work. The first draft 

of the report had to be finished one week after the Commission held its first and only hearing on the matter on 

May 13, 2011. See Transcript of Commission Meeting 10 (August 12, 2011).

3

42 U.S.C. 1975(c)(1): ―The Commission shall submit to the President and Congress at least one report 

annually that monitors Federal civil rights enforcement efforts in the United States.‖ 

4

See Mary Frances Berry, Request for the U.S. Commission on Civil Rights, Hearing Before the Subcommittee 

on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 103 Cong., 2d 

Sess. (February 9, 1994) (―We are a watchdog over the effectiveness of federal civil rights enforcement‖); Mary 

Frances Berry Exits Civil Rights Commission; Gerald Reynolds Picked as New Chairman, Jet (December 27, 

2004/January 3, 2005) (―Berry, who at times has been at odds with five presidents over civil rights issues since 

1980, once reportedly said,  ̳If we don‘t have people irritated, we‘re not doing our job .... We‘re the watchdog 

that bites you on the leg, keeps tugging at you ....‘‖).
182 Dissenting Statement of Commissioner Gail Heriot

The annual enforcement report has traditionally been the most important project the 

Commission undertakes in any given year. It requires research and development that usually 

spans a year or more. This report was put together in less than a third of the usual time.

Similarly, the length of time for individual commissioners to write their statements was 

reduced from 30 days to seven days from the date the report was adopted.5

There is a backstory here: After considering several projects for several months over 

the summer of 2010, the Commission decided on October 8, 2010 that this year‘s topic 

would be the Department of Justice Civil Rights Division‘s use of the doctrine of ―cy pres‖ in 

settling civil rights lawsuits brought on behalf of a class.6That decision was already a little 

bit later in the year than usual. It was in part prompted by an article entitled Justice 

Department Steers Money to Favored Groups, which appeared in the Washington Examiner 

on August 5, 2010.7The Commission set out to determine whether the concerns discussed in 

that article were justified.8The article‘s author, Byron York, outlined the policy at issue this 

way:

The Justice Department has found a new way to pursue civil rights lawsuits, 

using the power of the Civil Rights Division not just to win compensation for 

victims of alleged discrimination but also to direct large sums of money to 

activist groups that are not discrimination victims and not connected to a 

particular suit.

 

In theory at least, the fact that the Commission‘s eight members are part-time, usually have primary jobs 

outside the federal bureaucracy and have some expertise in civil rights, means that we can be free from the bias 

that sometimes hinders the efforts of federal officials assessing the performance of other federal officials. We 

need not (and should not) be beholden to anyone.

5 Time for rebuttals was also reduced from the usual 30 days to 21 days. While it is understandable that 

Chairman Castro would be concerned about getting the final report out by end of the fiscal year, the hurry was 

purely a result of the Commission‘s decision to switch topics halfway through the year. 

6 The term ―cy pres‖ comes from the French phrase ―cy pres comme possible‖ or ―as near as possible.‖ It 

traditionally referred to a doctrine in trusts and estates law. When a testator attempts to create a charitable trust 

that will provide funds to a non-profit entity that no longer exists or for a purpose that can no longer be carried 

out, a court may order or allow those funds to be applied to a similar non-profit entity or for a similar purpose 

instead. Edith L. Fisch, The Cy Pres Doctrine in the United States 1 (1950). More recently, the term has been 

used to describe the practice described by Byron York in Justice Department Steers Money to Favored Groups 

under which non-profit organizations are awarded any unclaimed settlement funds or court-ordered damages in 

a class action or similar proceeding. Another term sometimes used in this context is ―fluid class remedies.‖ 

7 Byron York, Justice Department Steers Money to Favored Groups, Washington Examiner (August 5, 2010).

8 The project was later expanded to include the Equal Employment Opportunity Commission (EEOC) and 

private civil rights class actions.
Peer-to-Peer Violence and Bullying 183

In the past, when the Civil Rights Division filed suit against, say, a bank or a 

landlord, alleging discrimination in lending or rentals, the cases were often 

settled by the defendant paying a fine to the U.S. Treasury and agreeing to put 

aside a sum of money to compensate the alleged discrimination victims. There 

was then a search for those victims—people who were actually denied a loan 

or an apartment—who stood to be compensated. After everyone who could be 

found was paid, there was often money left over. That money was returned to 

the defendant.

Now, Attorney Eric Holder and Civil Rights Division chief Thomas Perez 

have a new plan. Any unspent money will not go back to the defendant but 

will instead go to a ―qualified organization‖ approved by the Justice 

Department. And if there is not enough unspent money—that will be 

determined by the Department—then the defendant might be required to come 

up with more money to give to the ―qualified organization.‖

The idea of directing unclaimed damage funds to non-profit groups whose interests 

are thought to be aligned with the unidentified victims‘ is superficially appealing. Advocates 

of cy pres argue that it solves the problem of under-deterrence that occurs when the victims 

of the defendant‘s wrongdoing fail to come forward and claim their share of the settlement 

made on their behalf.9 But as several respected legal scholars and practitioners have pointed 

out, it is also fraught with potential conflicts of interest.10 Northwestern University law 

professor Martin H. Redish and his co-authors have stated that the use of cy pres in the class 

action context ―richly deserves‖ ―scathing scholarly critique.‖11

 

9 Another way to deal with the problem is to over-compensate those victims who do claim funds. For example, 

if 20,000 victims are expected, but only 10,000 actually present themselves, each one with an injury valued at 

$10, each could receive $20. 

10 Martin H. Redish, Peter Julian & Samantha Zyontz, Cy Pres Relief and the Pathologies of the Modern Class 

Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617 (2010) (stating that the doctrine of cy pres in 

the context of class action litigation ―richly deserves‖ ―scathing scholarly critique‖); John H. Beisner, Jessica 

Davidson Miller & Jordan H. Schwartz, Cy Pres: A Not So Charitable Contribution to Class Action Practice, 

U.S. Chamber Institute for Legal Reform 19 (October 2010) (―[T]he expansion of cy pres into the class action 

context has generated significant conflict of interest concerns with respect to plaintiffs‘ attorneys, judges and 

defendants‖); Theodore H. Frank, Cy Pres Settlements, Class Action Watch (March 2008) (stating that the use 

of cy pres in the class action context creates ―clear conflicts of interest‖). See also Adam Liptak, Doling Out 

Other People‘s Money, The New York Times (November 26, 2007) (discussing, among other things, the efforts 

of New York University law professor Samuel Issacharoff to rein in this practice by issuing guidelines through 

the American Law Institute).

11 Redish, Julian and Zyontz, 62 Fla L. Rev. at 665. 
184 Dissenting Statement of Commissioner Gail Heriot

The conflicts of interest are by no means unique to civil rights cases brought by the 

federal government on behalf of a class of victims. They are equally significant in private 

class actions. But they are nevertheless important in the governmental context: When the 

Civil Rights Division selects a non-profit organization to benefit from the settlement of a 

legal dispute, how does it make that selection? Are there safeguards in place to prevent 

organizations that are simply the personal favorites of Civil Rights Division officials or staff 

members from being selected? Have any of the organizations that have been selected in the 

past employed family or friends of Civil Rights Division employees (or former Civil Rights 

Division employees themselves)? Are non-profit organizations lobbying the Civil Rights 

Division to be included as fund recipients (as they are already lobbying courts in connection 

with private class actions)?12 Is it appropriate for Civil Rights Division attorneys to be 

dispensers of political patronage on such a large scale? Has the Civil Rights Division come 

under pressure to bring the kind of legal action that is most likely to benefit these non-profit 

organizations rather than the kind of legal action that would best vindicate the national 

interest? Does the Civil Rights Division exert less effort to locate actual victims of 

wrongdoing when a favored non-profit group has been selected to receive any uncollected 

damages? All of these questions deserve answers.

Pursuant to the Commission‘s decision, the Commission‘s staff had researched the 

issue, prepared a discovery plan and drafted initial sets of interrogatories, which were then 

served on the Department of Justice. Everything was underway. The Commission had 

received a partial response from the Department of Justice and was expecting the remaining 

documents soon. But the terms of Chairman Gerald Reynolds and Commission Ashley 

Taylor, Jr.—both Bush appointees—expired at the end of 2010, and in early 2011 they were 

replaced by Chairman Martin Castro and Commissioner Roberta Achtenberg.13 At its first 

opportunity, the newly-constituted Commission voted to abort the cy pres report, thus letting 

 

12 Adam Liptak, Doling Out Other People‘s Money, The New York Times (November 26, 2007) ( ― ̳[The use of 

the cy pres doctrine in private class actions] gives rise to this unbelievable world that I was shocked to learn 

about, and I‘m not easily shocked in litigation,‘ Professor [Samuel] Issacharoff [of New York University Law 

School] said.  ̳Charities hire lawyers to go lobby the judge for the extra money.‘‖).

13 In addition, Commissioner Arlan Melendez was replaced by Dina Titus and the seat held by Commissioner 

Michael Yaki was briefly unoccupied. Both Melendez and Titus were appointed on the recommendation of 

Senate Democratic Leader Harry Reid. Michael Yaki was later re-appointed on the recommendation of House 

Democratic Leader Nancy Pelosi. 
Peer-to-Peer Violence and Bullying 185

the Department of Justice off the hook in responding to the Commission‘s interrogatories.

The bullying topic addressed in this report—a favorite topic of the current Administration--

was hurriedly substituted, and the Commission staff had to start from scratch.14

This looks very bad. The Byron York article in the Washington Examiner at least 

implied that the Civil Rights Division under the leadership of Obama appointees may have 

engaged in questionable activities. Prominent legal scholars had agreed that the use of the cy 

pres doctrine in class actions creates a serious potential for conflicts of interest. The 

Commission‘s report was designed, among other things, to allow the Division to demonstrate 

that its procedures are sufficient to guard against these potential conflicts of interest and that 

no cronyism had taken place in recent past. One would think under the circumstances the 

Civil Rights Division would prefer that the report be completed, rather than leave the 

question of conflicts of interest on its part dangling. Nevertheless, the investigation was shut 

down by a change in personnel on the Commission shifting the balance of power to Obama 

appointees.15

 

14 See Statement of Chairman Martin R. Castro at 90 (quoting President Barack Obama at the White House 

Summit on Bullying Prevention on March 10, 2011). 

The newly-constituted Commission also cancelled two other on-going investigations—one into discrimination 

against women in higher education and the other into race-neutral enforcement of civil rights laws at the 

Department of Justice, a project which began as an investigation of the Department of Justice‘s handling of a 

lawsuit against the New Black Panther Party for voter and poll worker intimidation. What all three projects had 

in common was each contained elements that were critical or potentially critical of the current Administration‘s 

policies. Put differently, in each case, the Commission was fulfilling its mission to be a civil rights watchdog. 

See supra at n. 4. For a discussion of the termination of the sex discrimination investigation, see Gail Heriot & 

Alison Somin, Affirmative Action for Men?: Strange Silences and Strange Bed Fellows in the Public Debate 

Over Discrimination Against Women in College Admissions, Engage (2011) (forthcoming). 

15 The vote to terminate the investigation was 4 to 3. Voting in favor of termination were Chairman Castro 

(appointed by President Obama), Commissioner Roberta Achtenberg (appointed by President Obama), 

Commissioner Dina Titus (appointed upon recommendation of Senate Democratic Leader Reid) and Vice Chair 

Thernstrom (appointed by President Bush, but who has caucused with Democrats for the past two years and 

votes with them except when it is clear her vote will not affect the outcome. I know of only one very minor 

exception to this rule since the Commission was re-constituted at the beginning of 2011). Voting against 

termination were Commissioner Peter Kirsanow (appointed by President Bush), Commissioner Todd Gaziano 

(appointed on recommendation of House Republican Leader Boehner), and me (appointed on recommendation 

of Senate Republican Leader McConnell).

Believing that the Civil Rights Division might be eager to demonstrate that its staff members had never 

funneled funds to an organization with which they had some personal relationship, that it had not become 

lackadaisical about finding the real victims of civil rights violations, and that its procedures for selecting the 

recipients of funds were designed to avoid the potential for conflicts of interest, my special assistant, with my 

encouragement and cooperation, sent the Department of Justice a Freedom of Information Act request on June 

10, 2010. DOJ acknowledged receipt of the request on June 21. No documents have been produced to date.
186 Dissenting Statement of Commissioner Gail Heriot

Meanwhile, given the late date at which the bullying topic was selected, there has 

been no opportunity for the Commission to root out useful new information about bullying or 

about the method by which the Department of Education enforces its bullying policy.16 I will 

therefore confine my remarks to a very general level.

II. The Federal Government is Ill-Suited to the Role of Controlling Schoolyard Bullies.

Remember when children used to say ―Don‘t make a federal case out of it‖? In those 

days, even fourth graders understood that not every problem is best dealt with at the federal 

level. These days, however, everything seems to be a federal case—even schoolyard bullies.

The point is not that bullying is unimportant. Few things are as important as ensuring 

that all our nation‘s children can attend safe schools that are conducive to learning. But, in 

the absence of extraordinary circumstances, the problem can only be dealt with effectively at 

the local level. Individual teachers and principals backed up by active parents, school boards, 

school district officials, and students themselves must be in charge. It is their battle to win or 

lose. They are the heroes in this story, not the Department of Education.

Dealing with bullies requires knowledge of particular personalities and situations. 

Only their teacher knows that when little Owen doesn‘t want to go out to recess, it is likely 

because the bigger kids—Benjamin and Elijah—have been harassing him and that he is too 

embarrassed to say so. Only the teacher knows that when little Chloe claims she has been 

bullied by her playmates, she is probably telling a tall tale, as she has done many times 

 

A similar request was sent to the EEOC on June 10, 2011. An acknowledgment was sent on June 17. On August 

17, my special assistant received a letter stating that the EEOC estimated that costs of searching for responsive 

documents would be over $5,000. She and I are waiting for a response to her request for a fee waiver.

16 Although Chapter 3 of the report purports to offer new information, what is there sheds no useful light on the 

question of whether the Department of Education is doing its job properly or on any other significant question. 

What it does is provide charts and counts for the sake of charts and counts. As my colleagues Commissioners 

Todd Gaziano and Peter Kirsanow point out in their Joint Dissent, it is unclear how many of the complaints 

counted in this chapter actually involve student to student harassment (as opposed to alleged harassment of a 

student by a teacher or other school official). There is also no attempt to assess how many of the voluntary 

resolution agreements discussed in that chapter were actually meritorious. See Joint Dissent of Commissioners 

Gaziano and Kirsanow at 132-33. 
Peer-to-Peer Violence and Bullying 187

before. Teachers must act quickly and decisively at times, but they must also be careful and 

nuanced in dealing with their charges. In addition to knowing about the subjects they teach 

and how to teach them, they must possess the skills of both a psychologist and a police 

officer.

One could argue that any help in this regard should be welcome. But help from the 

800-pound gorilla can be worse than no help at all. And that is what anything as large and 

powerful as the federal government inevitably is. The fact that it may be well-meaning is nice 

to know, but it shouldn‘t make anyone want to trust it with a china tea set.

It is not that 800-pound gorillas are never useful. When it comes to fighting a war or 

building an interstate highway system, such a creature is perhaps the perfect ally.17 But 

helping school districts deal with discipline problems is a very different endeavor.

Local schools must do two things to satisfy the Department of Education: They must 

do the right thing in response to bullying motivated by race, sex, national origin or disability.

Then they must be prepared to demonstrate with evidence that they have done the right thing.

Sadly, in the real world, the latter task begins to overshadow the former. That is in the nature 

of bureaucracy. Teachers and principals must document the steps they have taken. Slowly, 

but unavoidably, the emphasis shifts from doing what the teacher and principal believe is the 

right thing to demonstrating that the school has done what the teacher and principal think 

some Department of Education official will think is the right thing. This is a shame. Their 

own judgment may have been imperfect—just like every other human being‘s on the planet 

Earth—but it is better informed than the Department of Education‘s and hence much more 

 

17 Certainly, there are times when coordination at the national level is crucial. But no such coordination is 

necessary for dealing with bullies. And even if it were necessary, the federal government is not offering it.

Rather, it offers fragmentation. Federal law confers jurisdiction to act on the Department of Education only 

when bullying is a manifestation of race, sex, national origin, or disability discrimination. There are ways in 

which bullying on these grounds may differ from bullying on other grounds. But it is unclear why anyone 

would want a school to have one method for responding to a bully who is harassing his victim because the 

victim is nearsighted or his parents are from Ukraine and another one for when the bully is motivated by the fact 

that his victim is homely, nerdish or socially awkward.
188 Dissenting Statement of Commissioner Gail Heriot

likely to be on target. Like every other person in a position of authority, teachers and 

principals may need some supervision. But it is better for that supervision to come from 

someone closer to the situation than from the Department of Education.

For a sense of how policies like the Department of Education‘s bullying policy have 

worked in the past, one need only look to its very similar sexual harassment policy and the 

zero tolerance rules that have evolved from it:18

 

18 While the Department of Education uses the word ―bullying‖ in addition to ―harassment‖ in describing its 

policy, the policy is essentially a harassment policy and draws on court decisions relating to sexual harassment 

for its justification. See Dear Colleague Letter of October 26, 2010 from Russlynn Ali, Assistant Secretary for 

Civil Rights, U.S. Department of Education.

A few words on how sexual harassment law in connection with Title VII has driven harassment law generally 

are in order: In 1964, when both Title VI (prohibiting race, color and national origin discrimination in federallyassisted programs) and Title VII (prohibiting race, color, sex, religion and national origin discrimination in 

public and private employment) were passed as part of the Civil Rights Act of 1964, the latter was considered 

much more significant. An entirely new federal agency—the EEOC—was created to administer the law, and it 

was clear from the beginning that a private cause of action would lie. Deputy Attorney General Nicholas 

deBelleville Katzenbach estimated in two letters to Emmanuel Cellar, Chairman of the Committee on the 

Judiciary of the House of Representatives, both dated February 6, 1964, that Title VI would require only three 

employees and a budget of $62,510. Title IV (school desegregation) on the other hand was estimated to require 

150 employees and a budget of $10,752.560, while Title VII was expected to require 155 employees and a 

budget of $3,875,000. Title IX, part of the Educational Amendments Act of 1972, prohibiting sex 

discrimination by educational institutions receiving federal financial assistance, was passed eight years later.

In 1964, the kind of race and sex discrimination in employment that people most readily thought of was not 

subtle. Newspapers in the South routinely categorized their ―Help Wanted‖ ads as ―Help Wanted—White‖ and 

―Help Wanted – Colored,‖ and ―Help Wanted—Male‖ and ―Help Wanted—Female‖ ads were common almost 

everywhere. Nevertheless, Title VII‘s text does not prohibit only gross discrimination; it prohibits 

discrimination. When confronted with the question of whether Title VII prohibits an employer from maintaining 

a working environment that is so hostile to a particular race (or to one sex) that few members of that group 

would be willing to expose themselves to it, the Supreme Court and other courts rightly ruled that it may. See 

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)(sex); Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. 

denied, 406 U.S. 957 (1972)(race).

This did not result in an immediate explosion of cases. At the time, Title VII plaintiffs could sue for back pay or 

for an injunction requiring that the offending conduct stop. But they could not sue for emotional distress 

damages. As a result, an employee who had been harassed would be unlikely to sue unless things were so bad 

that she had quit or the employer refused to rectify something that mattered to her enough to get an injunction. 

Small grievances—both valid and invalid—were more likely to be left to the ordinary give and take of the 

workplace. All this changed in 1991 when Title VII was amended to allow money damages (instead of just back 

pay) and punitive damages. Changes in remedies frequently lead to profound changes in the way the substantive 

law is interpreted and applied. It was in 1991 that journalists (and even comedians) began to make fun of some 

of the comparatively trivial cases that employers had to contend with. See, e.g., Nat Hentoff, Sexually Harassed 

by Francisco Goya, Wash. Post. (Dec. 27, 1991)(copy of Goya‘s Naked Maja removed from classroom where it 

had hung for years after professor said it harassed her). 

Meanwhile, as sexual harassment prevention was becoming part of the zeitgeist, cases brought under Title IX, 

which covers educational institutions receiving federal funds, began to be filed too. See Franklin v. Gwinnett 
Peer-to-Peer Violence and Bullying 189

 Two middle school students—Cory M. and Ryan C., both 13, were arrested 

and charged with a crime at Patton Middle School in McMinnville, Oregon 

for slapping girls‘ posteriors in an exuberant greeting in February of 2007.19

 Seven-year-old Randy C. saw another child hitting a fellow first-grader‘s 

buttocks, so he did it too at Potomac View Elementary School in 

Woodbridge, Maryland in February of 2009. The principal called the police 

on him.20

 

County Public Schools, 503 U.S. 60 (1992)(holding that a case for money damages may be brought under Title 

IX for teacher‘s sexual harassment of student). Like the Title VII cases, once monetary damages became 

available, some of the Title IX lawsuits were trivial. See, e.g., Nevermore for Poe Film, Lawsuit Says, San 

Francisco Examiner (Aug. 30, 1994)(teenager sues for sexual harassment under Title IX after English teacher 

showed movie based on Edgar Alan Poe‘s classic short story ―The Pit and the Pendulum‖). 

The Department of Education was very much part of the zeitgeist that availability of money damages had 

helped create. On March 13, 1997, it upped the ante by issuing Sexual Harassment Guidance: Harassment of 

Students by School Employees, Other Students or Third Parties. That guidance made it clear that a school that 

did not come down hard on what the Department of Education considered sexual harassment might find itself 

the subject of a federal investigation. In the years that followed, the zero tolerance rules enforced against tiny 

tots began to appear. See also Sexual Harassment Panda, South Park Episode No. 37 (July 7, 1999)(comic 

treatment of an elementary school‘s sexual harassment policy).

In Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Supreme Court gave muchneeded clarification to the law by holding that damages may not be recovered for a case of teacher-on-student 

sexual harassment unless a school district official with authority to take corrective action had actual notice of 

the harassment and was deliberately indifferent. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 

(1998)(imposing similar requirements in Title VII case).

In 2000, in the case of Davis v. Monroe County Board of Education, 526 U.S. 629 (2000), the Supreme Court 

further clarified by holding that in addition to the limitations in Gebser, damages for student-on-student sexual 

harassment are available from the school district only when the harassment was so severe, pervasive and 

objectively offensive that it could be said to deprive the victim of access to the educational opportunities or 

benefits provided by the school.‖

In response to Gebser and Davis, the Department of Education was obliged to issue a new guidance in January 

of 2001, entitled Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other 

Students, or Third Parties.

I agree with my colleagues, Commissioners Gaziano and Kirsanow, that the current Dear Colleague Letter goes 

far beyond Gebser and Davis by making a school district responsible for (1) harassment/bullying not just that 

some responsible party knew about but that some responsible party should have known about; (2) student-onstudent harassment/bullying that is not just ―severe, pervasive and objectively offensive‖ but ―severe, pervasive 

or persistent;‖ and (3) student-on-student harassment/bullying that ―interferes with or limits a student‘s ability 

to participate in or benefit from the services, activities, or opportunities offered by a school‖ instead of the 

Supreme Court‘s standard of harassment/bullying that ―deprives the victims of access to educational 

opportunities or benefits provided by a school.‖ (Emphasis supplied). See Joint Dissent of Commissioners 

Gaziano and Kirsanow at 139-45. Indeed, it appears to me that the letter goes beyond any fair reading of Title 

VI or Title IX.

19 Scott Michels, Boys Face Sex Trial for Slapping Girls‘ Posteriors, ABC News (July 24, 2007).

20 Juju Chang, Alisha Davis, Cole Kazdin and Olivia Sterns, First-Grader Labeled a Sexual Harasser: Has ZeroTolerance for Sexual Harassment in Schools Gone Too Far?, ABC News (Feb. 19, 2009).
190 Dissenting Statement of Commissioner Gail Heriot

 A five-year-old Hagerstown, Maryland boy was written up for sexual 

harassment for pinching girls‘ rear ends in the hallway at Lincolnshire 

Elementary School. Indeed, 28 kindergarteners were suspended for sex 

offenses, including 15 cases of sexual harassment in the 2005-2006 school 

year.

21

 In December of 2006, a 4-year-old Waco, Texas boy was suspended for 

hugging a teacher‘s aide and rubbing his face in her chest.22

 At Downey Elementary School in Brockton, Massachusetts, a 6-year-old 

was suspended for three days after he put two fingers inside a fellow firstgrader‘s waist band. He told his mother that the girl had touched him first.23

 A 6-year-old in Greer, South Carolina was accused of sexually harassing 

his kindergarten teacher, because he told one of his classmates that he liked 

looking at her behind.24

 According to the Maryland Department of Education, 166 elementary 

school students were suspended in the 2007-2008 school year for sexual 

harassment, including three pre-schoolers, 16 kindergarteners and 22 first 

graders. In Virginia, 255 elementary students were suspended for offensive 

sexual touching in that same year.25

One could argue that these school districts have simply misinterpreted what the 

Department of Education requires. But that is no answer. It is in the nature of distant 

bureaucracies that their edicts will be misinterpreted. One can argue that schools shouldn‘t 

make such mistakes, but that is no more useful than King Canute‘s command that the tides 

recede. The fact is that people make fewer mistakes when they rely upon their own common 

 

21 Yvonne Bynoe, Is that 4-Year-Old Really a Sex Offender?, The Washington Post (Oct. 21, 2007). According 

to the article, school spokeswoman Carol Mowen said, ― ̳It‘s important to understand a child may not realize 

that what he or she is doing may be considered sexual harassment, but if it fits under the definition, then it is, 

under the state‘s guidelines.‘‖ These state guidelines were promulgated in an effort to comply with federal civil 

rights law.

22 Id.

23 Gitika Ahuja, First-Grader Suspended for Sexual Harassment: Boy‘s Mother Says He‘s Too Young to Even 

Understand the Accusation, ABC News (February 9, 2006). The article reports: ―In a statement, Brockton 

Superintendent of Schools Basan Nembirkow said the district takes  ̳all allegations of sexual harassment very 

seriously. An investigation is always conducted when reports of sexual harassment arise. Principals are trained 

to handle these difficult situations and they are assisted, as needed, by the district‘s sexual harassment officer in 

handling each situation.‘‖

24 6-Year-Old Boy Accused of Sexual Harassment, WSPA-7-On-Your-Side (April 4, 2008).

25 Juju Chang, Alisha Davis, Cole Kazdin and Olivia Sterns, First-Grader Labeled a Sexual Harasser: Has ZeroTolerance for Sexual Harassment in Schools Gone Too Far?, ABC News (Feb. 19, 2009).
Peer-to-Peer Violence and Bullying 191

sense than when they try to please some distant bureaucracy. Indeed, that is part of why it is 

not a good idea to make everything a federal issue.

The problem is structural. If a school district attracts the attention of the Department 

of Education and is forced to submit to an investigation, it is going to cost it enormous 

resources. Lawyers will have to be consulted, and considerable staff time will have to be 

devoted to dealing with an investigation. The object of the game therefore is to avoid such 

attention. It is natural for a school district to implement a policy that leans over backwards to 

avoid trouble.

A policy that leans over backwards to avoid one kind of risk will inevitably pay 

insufficient heed to a countervailing consideration. In the case of sexual harassment policies, 

young children who cannot even spell ―sexual harassment‖ have been needlessly 

traumatized. Their educations have been interrupted by uncalled-for suspensions. And these 

well-publicized cases involving kindergartners and first graders are unlikely to show the full 

extent of the problem. There are likely lots of cases that are not quite as perfect for media 

ridicule as the tiny tot cases, but in which an injustice was nevertheless done.26 In the end, the 

greatest casualty of the Department of Education‘s war may turn out to be the easy-going 

relations between the sexes that have been characteristic of American culture for a long time.

When young people have to be careful about what they say or do around the opposite sex, the 

result is likely to be that they say and do less.

In the case of the bullying policy, the neglected countervailing consideration may turn 

out to be the First Amendment. As then-judge Samuel Alito stated in Saxe v. State College 

Area School District:

27

There is no categorical ―harassment exception‖ to the First Amendment‘s free 

speech clause.

... 

 

26 I have asked the Commission to look into this issue, but have so far been unsuccessful in persuading a 

majority of the commissioners to do so.

27 240 F.3d 200, 204, 206 (3d Cir. 2001).
192 Dissenting Statement of Commissioner Gail Heriot

There is of course no question that non-expressive, physically harassing 

conduct is entirely outside the ambit of the free speech clause. But there is 

also no question that the free speech clause protects a wide variety of speech 

that listeners may consider deeply offensive, including statements that impugn 

another‘s race or national origin or that denigrate religious beliefs.

To be sure, First Amendment protections operate a little differently in school settings 

than they do in the marketplace. But they operate nonetheless—especially in this case, given, 

as Professor Eugene Volokh pointed out in his written testimony, that the Department of 

Education‘s Dear Colleague Letter appears to cover certain off-campus speech as well as oncampus speech.28 There is, however, no federal agency that actively protects students‘ First 

Amendment rights.29 As a result, the incentive is for schools to give these rights a lower 

priority.

Anyone who has followed higher education over the last couple of decades knows 

that college campuses have been home to serious controversies over First Amendment 

rights.30 It is one of life‘s crueler ironies that colleges and universities—the very institutions 

that should hold freedom of expression most dear—have instead led the charge against those 

rights.31 In his testimony, Professor Volokh recounted many illustrative incidents; many 

 

28 Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986); Tinker v. Des Moines Indep. School Dist., 398 

U.S. 503 (1969); Saxe v. State College Area School Dist., 240 F.3d 200 (3d Cir. 2001). Commissioner Yaki‘s 

Statement is devoted almost exclusively to the proposition that the Constitution sometimes permits and indeed 

sometimes requires that children be treated differently from adults. No one denies this—although the cases he 

cites for that proposition do not always stand for it. See, e.g. Jacobson v. Massachusetts, 197 U.S. 11 

(1905)(upholding Massachusetts‘ compulsory vaccination law against an adult plaintiff). By the same token, 

however, no serious student of the law can deny that while the Supreme Court has recognized limits on the 

application of the First Amendment to school children, it has also recognized that school children have First 

Amendment rights at school and outside of school in the same cases. See Tinker, 393 U.S. at 506 (―It can hardly 

be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at 

the schoolhouse gate.‖). Commissioner Yaki‘s Statement does not deal with this at all. Nor does it deal with the 

question of whether the Department of Education has or should exercise the authority to regulate public or 

private schools in the manner it purports to do in its Dear Colleague Letter.

29 The only organization I know of that specializes in protecting the First Amendment and academic freedom 

rights of faculty and students on college and university campuses is the Foundation for Individual Rights in 

Education (FIRE). Although some of the cases that FIRE litigate may lead to judicial decisions that affect K-12 

public schools, FIRE works primarily on safeguarding the individual rights of university students rather than on 

defending those of younger students. Sadly, its staff is also tiny. But see William Shakespeare, Henry V, act iv, 

scene iii (c. 1598).

30 See, e.g. Jon B. Gould, Speak No Evil: The Triumph of Hate Speech Regulation (2005). 

31 See, e.g., Mari Matsuda, Charles R. Lawrence III, Richard Delgado and Kimberle Williams Crenshaw, Words 

that Wound: Critical Race Theory, Assaultive Speech and First Amendment (1993) (advocating hate speech 
Peer-to-Peer Violence and Bullying 193

more could be told. The Department of Education‘s Dear Colleague letter is likely to push K 

through 12 education a little further down the path that higher education has recently 

followed.32

Bureaucratic solutions are not the answer to every problem. The power of the federal 

government is a tool like any tool and should be used only in the right situation. For example, 

more than forty years ago the Department of Health, Education and Welfare (predecessor to 

the current Department of Education) performed an invaluable service in conjunction with 

the Department of Justice in coercing recalcitrant schools districts into desegregating. It had 

been a decade since Brown v. Board of Education, and many schools were just as segregated 

as they had been before that decision. Armed with Titles IV and VI of the Civil Rights Act of 

1964, they indeed came down on these school districts like the proverbial 800-pound gorilla.

Such a solution was necessary and altogether appropriate under the circumstances.33

 

codes); Richard Delgado and Jean Stephancic, Must We Defend Nazis?: Hate Speech, Pornography and the 

New First Amendment (1999) (same). 

Higher education is not the only place where serious First Amendment controversies have erupted in the last 

decade. Professor David E. Bernstein has written about the use of federal employment discrimination law to 

limit free expression in the workplace. See David E. Bernstein, You Can‘t Say That!: The Growing Threat to 

Civil Liberties from Anti-Discrimination Laws (2003) (discussing sexual harassment law‘s effect upon the 

workplace).

32 State anti-bullying initiatives may also have this effect. See Jonathan Saltzman, Antibully Law May Face 

Free Speech Challenges, The Boston Globe (May 4, 2010). That article stated:

[S]ome aspects of the law are so general that civil rights lawyers are concerned about how 

schools will apply it. The law, for example, defines one form of bullying as ―repeated use‖ of 

a written, verbal, or physical act that ―causes physical or emotional harm to the victim.‖

By that standard, said Gavi Wolfe, legislative counsel for the American Civil Liberties Union 

of Massachusetts, a student who calls another student ―loser‖ twice on the school bus and 

hurts the youngster‘s feelings could qualify as a bully. A bus driver who heard the remarks 

would have to report them to school officials, who would then have to contact the parents of 

both children and take appropriate disciplinary action.

Harvey A. Silverglate, a well-known Boston civil rights lawyer, said, ―School authorities are 

going to overreact, and we‘re going to have a firestorm of administrative actions against kids 

for saying this that are merely slightly unpleasant but do not qualify as bullying or harassment 

or any such thing.‖

33 It has its costs, of course. Once such a bureaucracy is put in place, it is very difficult to dispense with it, even 

if the need for it diminishes. Such are the consequences of history.
194 Dissenting Statement of Commissioner Gail Heriot

This is not 1964. There is no credible evidence that any school district in the nation is 

pro-bully. Mistakes happen; teachers and principals have not always done the right thing.34

But these mistakes are not less likely to happen with vigorous federal oversight. Indeed, I 

believe they are more likely to happen. Under the circumstances, a lighter touch that the 

Department of Education‘s Dear Colleague Letter offers is called for.

III. Nothing in the Statements of the Commission Members Who Voted for the Report Justifies 

Making a Federal Issue Out of Schoolyard Bullying.

Chairman Castro rightly states in his Statement that ―each of us, regardless of our 

Party affiliation or our political ideology, wants to have communities and schools that are 

safe for our children, regardless of their race, national origin, sex, religion, disability status or 

sexual orientation. Where we may differ is how to accomplish that goal.‖35 But he draws 

very different conclusions from that statement than I do. To me, the fact that we all agree we 

want safe schools for our children means that the aggressive federal oversight represented by 

the Department of Education‘s Dear Colleague Letter is unnecessary and will likely be 

counterproductive. Different school districts, indeed different teachers and principals, should 

take different approaches to the problem, and they should learn from each other‘s successes 

and failures. Meanwhile, creating media events like our May 13, 2011 briefing for the sake of 

media events is a job that can and should be left to the politicians.36

 

34 The case in South Philadelphia described at our briefing by Helen Gym of Asian Americans United may well 

be an example.

35 Statement of Chairman Martin R. Castro at 90. It is useful to note that forty seven years ago, Chairman Castro 

could not have made a similar statement about the education issue of the day. It was not true that everyone 

wanted to ensure that African American students had the right to attend the same schools as their peers, 

regardless of race. That is why federal intervention was useful: The Fourteenth Amendment was being flouted. 

There is nothing remotely analogous to the massive resistance to Brown v. Board of Education today. There 

have many disagreements about education policy, but there are no adults outside homes for the criminally 

insane who don‘t want all the nation‘s children to have a safe place to learn.

36 Everyone‘s heart goes out to Ms. Aaberg, the mother of Justin Aaberg, the 15-year-old student from the 

Anoka High School in Anoka, Minnesota, who took his own life on July 9, 2010 during the summer vacation 

between his freshman and sophomore years. But when bereaved relatives testify before a commission about 

their grief, care must be taken to prevent the proceedings from degenerating into political theater. In our case 

one of our Commission members used Ms. Aaberg‘s testimony as a club to attempt to discourage one of our 

other witnesses—Francisco M. Negron, Jr., general counsel to the National School Boards Association—from

testifying candidly. Mr. Negron was kind enough to inform us of the kinds of problems school boards face in 

trying to satisfy the federal mandate on bullying. Commissioner Yaki responded this way:
Peer-to-Peer Violence and Bullying 195

 

I‘m going to be as civil as I possibly can. But it just seemed to me very difficult for me to 

listen to your testimony talking about the fear of lawsuits and plaintiffs‘ lawyers when you‘re 

talking about sitting next to someone who lost their son .... 

And to talk about plaintiffs‘ lawyers and whatever is essentially saying,  ̳Well you know 

there‘s a price we have to pay and there‘s some cost benefit analysis that we have to do when 

it comes to how much a child‘s life is.‖ At least that‘s the way it came to me. I know that‘s 

not what you meant, but certainly the way it came out.

So my question to you is, you talk about the fact that there should be no federal mandates, 

because there should be local leadership. How do you explain [that] to Ms. Aaberg?

Tr. at 275-76.

This was not fair. Mr. Negron was given a difficult task—giving testimony directly after a mother had offered 

her story of the loss of her young son—and he fulfilled that task with tact and grace. Mr. Negron and the 

National School Boards Association are at least as concerned about the safety and welfare of children as 

Commission Yaki and the other members of the Commission. But among other things, Mr. Negron has a duty to 

try to ensure that school resources are not spent on unproductive bureaucratic red tape rather than on actual 

teaching and learning. Moreover, as Commissioner Yaki must surely know, the job of preventing suicide is not 

as easy as it was made to seem at our staged media event—complete with poster-sized photographs of smiling 

suicide victims on easels. Increased federal oversight is unlikely to do the trick. The next suicide in the AnokaHennepin School District may not be the victim of an anti-gay bully. Next time it may be a child who was 

wrongly accused of being a bully instead. Perhaps it will be a child who never did anything at all, but whom the 

true bullies accuse of wrongdoing just for the fun of it. Or perhaps it will be a child reared in a religious 

tradition that disapproves of homosexuality, but who has done nothing but decline to endorse it. History never 

repeats itself exactly. The next time might not be a suicide at all; instead it may be a fatal accident because some 

school district somewhere had its budget strained by the kind of litigation that Commissioner Yaki seems 

unconcerned about and hence was not able to keep its school buses properly maintained. It is a complicated 

world. And it will not be made better or less complicated by a federal bureaucracy attempting to accomplish 

through federal mandate that which cannot be accomplished that way.

Justin Aaberg‘s tragic suicide is very much part of that complicated world. Members of the Commission seem 

to assume that it was a direct result of school bullying. But immediately after his death, which occurred in July, 

between school sessions, WCCO, the CBS affiliate in Minnesota, reported that his friends told Ms. Aaberg that 

he ―had recently broken up with his boyfriend.‖ 

http://minnesota.cbslocal.com/health/glbt.teen.suicide.2.1910636.html. To be sure, they also reported to her that 

he had sometimes been bullied. But there is nothing in the article to link the suicide to either the break up or the 

bullying, and given that the suicide took place in the middle of the summer, it seems doubtful that the link 

between it and any bullying at school was direct and immediate. At best, it may have had an indirect link.

In her testimony, Ms. Aaberg related the two incidents that she knew of. First, more than a year prior to his 

death, two other students grabbed at his genitals in the hallway and taunted him saying, ―You like that, don‘t 

you?‖ This incident had left young Justin crying, and his friends reported the incident to the school counselor. 

There is nothing in the Commission‘s record that makes it clear what, if anything, the counselor did about it. 

Ms. Aaberg was inclined to be critical of the counselor for failing to inform her of what happened. But what if 

she had? Would that have made things better for Justin? Or worse? Many children prefer that their personal 

humiliations not be brought to the attention of their parents, and given that Justin did not tell his parents 

himself, he may well have fallen into that category on this occasion at least. Sometimes in the exercise of good 

judgment, school counselors must overrule the wishes of their charges on such matters. But sometimes good 

judgment requires that the child‘s wishes be respected. In what respect does oversight from the Department of 

Education increase the likelihood that the right decision will be made? 
196 Dissenting Statement of Commissioner Gail Heriot

What disturbs me is the lack of real discussion in the Statements. Nowhere is an effort 

made to explain why the federal jurisdiction over these issues is making things better. The 

point is taken for granted. The Statements contain no recognition of the fact that entrusting an 

issue—especially an important issue—to the federal bureaucracy has costs.

I wish I could fully explain the modern tendency toward an ever-larger and more 

powerful centralized government. Part of it is obvious, of course: It is a one-way ratchet.

Once a bureaucracy is created, it requires extraordinary political will to shrink it, and hence it 

hardly ever happens. As the bureaucracy grows, so too does the class of persons who service 

it from the outside—lobbyists, lawyers, and professional political activists. Such persons, 

like government employees themselves, are likely to see government action as the solution to 

every problem—especially when an important by-product of every new federal initiative is to 

provide white-collar jobs to people like them.37

 

The other incident Ms. Aaberg reported was indeed communicated to her by her son. She testified that two 

months prior to his death he confided that a ―kid‖ had once told him that because he was gay he was going to 

hell. Ms. Aaberg did not testify whether she knew where or when this conversation involving her son and the 

other young person occurred, the tone of voice with which the student spoke, whether the teachers, counselors 

or principal knew about it or had reason to know about it. She simply gave her opinion that the First 

Amendment should not cover such speech. Tr. at 296.

Despite knowing of this incident, Ms. Aaberg testified before the Commission that up until his suicide ―he 

always looked so happy and I honestly thought he had the perfect life.‖ He had many friends, and according to 

her testimony, he evidently did not wish to bother them with his problems any more than he wanted to bother 

his family. Statement of Tammy Aaberg at 1. No one realized that he was about to take his own life. All of this 

is perfectly understandable and my sympathy goes out to Ms. Aaberg and her son‘s family and friends. But it 

may well be that he looked happy to his teachers and counselor too. They may also have mistakenly thought he 

had the perfect life.

Life teaches us that human beings are not always what they appear to be on the surface. But no one has ever 

suggested that the problems of navigating the human soul can be made easier with more aggressive federal 

oversight.

37 It is worth noting that a significant by-product of the Department of Education‘s Dear Colleague Letter of 

October 26, 2010 is to increase the demand for anti-bullying seminars and education programs—and not just by 

a little bit. In the Letter, Assistant Secretary Russlynn Ali makes it clear that ―school administrators should look 

beyond simply disciplining the perpetrators [i.e. bullies].‖ ―While disciplining the perpetrators is likely a 

necessary step, it often is insufficient.‖ Instead, she repeatedly urges ―training faculty on constructive responses 

to racial conflict,‖ ―[p]roviding faculty with training to recognize and address anti-Semitic incidents,‖ and 

―creat[ing] an age-appropriate program to educate its students about the history and dangers of anti-Semitism,‖ 

In response to one hypothetical featuring sexual name-calling and rumor mongering, Assistant Secretary Ali 

states ―The school should have trained its employees on the type of misconduct that constitutes sexual 

harassment.‖ She again makes it clear the ―responding to individual incidents of misconduct on an ad hoc basis 

only‖ is insufficient.‖ In connection with a hypothetical involving the bullying of a disabled student, she states 
Peer-to-Peer Violence and Bullying 197

It is easy to overlook the structural conflicts of interest that separate lobbyists, 

lawyers and professional activists from the people they purport (and indeed usually in 

good faith are attempting) to represent. But a wise policymaker will never lose sight of 

those conflicts: A lawyer or lobbyist benefits from complex and ever-changing law; his 

clients usually benefit from clear and stable law. A professional political activist needs 

political victories in the form of legislation passed or favorable administrative action; 

without such victories he cannot raise money. It is less important that these victories 

ultimately actually benefit anyone, much less those who thought they would be benefited. 

The professional political activist surely has no interest in examining past victories to find 

out whether they provided the promised benefits.

The primary political organizations that have supported the Department of 

Education‘s bullying policies have been civil rights organizations specializing in the 

concerns of sexual minorities. Sometimes their efforts have been part of broader efforts at 

the local level to combat bullying, and sometimes they have been part of efforts in the 

national media to assure sexual minority students who feel isolated that there are lots of 

Americans who wish them well. I believe these very different aspects of the anti-bullying 

 

that the proper response should ―at least‖ have included (among other things) ―special training for staff on 

recognizing and effectively responding to harassment of students with disabilities.‖ 

By the end of the 10-page letter, only a fool would have failed to note that the best way to avoid liability—

perhaps the only way—is to engage lots of trainers. 

Training is obviously not always a bad thing. But when schools undertake such training in response to what 

they perceive to be a government mandate, they are overwhelmingly likely to just go through the motions. 

Approximately twenty years ago, see n.18, supra, employers seeking to avoid Title VII sexual harassment 

lawsuits for monetary damages began to hire outside consultants to train their employees on proper workplace 

decorum. In doing so, some hoped their employees would learn to avoid conduct that could be construed as 

sexual harassment. More important, however, they hoped these training courses would provide them with some 

immunity against punitive damages. Consequently, it didn‘t matter whether an employer thought its employees 

needed sexual harassment training or not; they were going to get it.

In California, where I live, the businesses providing these training courses became powerful enough to secure a 

state law requiring all supervisory employees at all workplaces, both public and private, to take such a course 

every other year. See Cal. Gov. Code § 12950.1 (2011). 

It seems overwhelmingly likely that the advocacy groups and private businesses that provide bullying training 

have received a special stimulus from the Department of Education‘s Dear Colleague Letter. A representative of 

one of them, the Gay, Lesbian and Straight Education Network (―GLSEN‖), testified at our briefing in favor of 

the Department of Education‘s policy.
198 Dissenting Statement of Commissioner Gail Heriot

movement may run together in the minds of its supporters. But they need to be considered 

and evaluated separately. I question whether increased power in the hands of the 

Department of Education will, in the long run, be in the interest of sexual minority 

students in particular. If the stereotypes of sexual minority members as particularly likely 

to be artistic and creative are even partly true, it is not clear that a national policy of 

deadening bureaucracy in the schools is in their interest.38

IV. Some of the Literature Cited in Commissioners’ Statements and in the Report Needs at 

Minimum to be Put in Perspective.

Given the very short period of time allocated to put together this Report (and the 

Commissioners‘ statements), it has been impossible to do anything approaching an adequate 

analysis of the many social science articles, advocacy pieces masquerading as social science 

 

38 See, e.g., Richard Florida, The Rise of the Creative Class: Why Cities Without Gays and Rock Bands are 

Losing the Economic Development Race, Washington Monthly (May 2002).

One expert, Cornell University professor of human development Ritch Savin-Williams, has expressed concern 

that current scholarship on gay, lesbian and bisexual youth tends to be ―doom-and-gloom‖ and that scholarship 

―[a]ccentuating the assets, resiliency, and complexity of same-sex oriented youth as creative, artistic, versatile, 

assertive, stylish, witty, sensitive, and athletic does not exist.‖ Ritch C. Savin-Williams, Then and Now: 

Recruitment, Definition, Diversity, and Positive Attributes of Same-Sex Populations, 44 Developmental 

Psychology 135, 137 (2008). Alas, the political system tends to reward those who can claim to be 

disadvantaged, particularly if they can claim to have been victimized. 

Savin-Williams also points out what he calls a ―perplexing contradiction‖ in the social science literature on 

sexual minorities: 

Although gay youth are purported to be severely disturbed, once adulthood is reached, they 

somehow become good partners and parents. How can it be that young lesbians, who 

reportedly have high levels of nearly every risk behavior imaginable, grow up to be such good 

partners and parents? One pessimistic perspective is that disturbed lesbian youth are 

eliminated through their pathology, with suicide being the most obvious. Alternatively, as 

they age, broader and more representative subgroups of same-sex attracted women come out, 

establish relationships, and identify some aspect of their same-sex sexuality on research 

surveys. Another explanation is political in nature. Highlighting  ̳bad‘ gay youth and  ̳good‘ 

gay adults garners resources: community support services and school-based gay/straight 

alliances for youth and legal rights in legal same-sex parenting and marriage court cases for 

adults. 

Id. at 137. See also Ritch C. Savin-Williams, The New Gay Teenager (2005)(arguing that the image of sexual 

minority teenagers as depressed and suicidal may be exaggerated).
Peer-to-Peer Violence and Bullying 199

and straight advocacy pieces cited in the Report and in the draft Statements.39 Nor has there 

been time to canvass the literature to determine what was left out of the Report. Nevertheless, 

I have tried to read through a sampling of the articles cited in Commissioner Achtenberg‘s 

statement.40 What follows are notes on some of the issues I spotted.

Bullying of Disabled Students: I have no trouble believing that some kinds of disabled 

students are bullied more often than other students—at least in environments where nondisabled students are left unsupervised in the presence of these disabled students. That is the 

nature of bullying; it is the abuse of the weak by the strong. But we should not pretend that 

we have useful data on in-school bullying of disabled students.

For example, Commissioner Achtenberg quotes from the Report this way:

―[i]n a 2009 study of parents of children with Asperger Syndrome, 94 percent 

reported that their children had been bullied. [citation omitted.] Additionally, 

65 percent reported that their children had been victimized by peers within the 

past year, while 50 percent reported that their children were scared by their 

peers.‖41

Actually it was a 2002 study—Middle Class Mothers‟ Perceptions of Peer and Sibling 

Victimization among Children with Asperger‟s Syndrome and Nonverbal Learning 

Disorders—that found the 94% rate.42 The 2009 study referenced in the Report—Bullying of 

Students with Asperger Syndrome—merely cites the 2002 study for that point.43 The 94% 

figure is for mothers who responded more than zero to any of the following questions:

How often in the last year your child was hit by peers or siblings at home or 

schools or out in the community?

 

39 It is the practice of the Commission for Commissioners to share their Statements and to then allow 30 days 

for Commissioners to add rebuttal material to their Statements or to draft a separate Rebuttal Statement. My 

citations are to the draft Statements, which did not contain rebuttal material at the time I had access to them. 

40 This is a random sampling of the articles, and not an effort to find the most troubling case in each category. 

There has been insufficient time for anything else.

41 Commissioner Roberta Achtenberg at 103 (quoting Report at 14-15)(citation were omitted in the Achtenberg 

version).

42 Liza Little, Middle Class Mothers‘ Perceptions of Peer and Sibling Victimization among Children with 

Asperger‘s Syndrome and Nonverbal Learning Disorders, 25 Issues of Comprehensive Pediatr. Nurs. 43 (2002)

43 Susan Carter, Bullying of Students with Asperger Syndrome, 32 Issues Comprehensive Pediatric Nursing 

145, 146, 150 table 2 (2009).
200 Dissenting Statement of Commissioner Gail Heriot

What is the number of times your child has been physically attacked by a gang 

or group of kids?

What is the number of times your child has been kicked or hurt in his/her 

private parts (nonsexual genital assaults)?

How many times did any kids, including sisters and brothers, pick on your 

child by chasing him or her, trying to scare him or her, grabbing your child‘s 

hair or clothes, or making your child go somewhere or do something he or she 

did not want to (bullying)?

How often did your child ―get scared, sick or feel really bad because of being 

called names, saying mean things, or told that they didn‘t want him or her 

around anymore (emotional bullying)?44

A few things are worthy of note about the 2002 study. First, the 411 families who 

participated in the study were not randomly selected. Rather, they were volunteers who 

responded to an internet invitation to the parents of a child with Asperger‘s Syndrome or 

another nonverbal learning disorder to complete an anonymous questionnaire that would be 

mailed to their home. Given that they appeared to be looking around the internet for 

information about their child‘s disorder, volunteers are probably more likely to report 

problems than non-volunteers.

Much more important, the study did not even purport to be limited to bullying at 

school. It included abuse by siblings or peers in any situation. I am forced to conclude from 

this that at least 6% of the Asperger‘s Syndrome children studied were only children.

Otherwise the figure would almost certainly have been 100% at least with the families that I 

am familiar with, not just with disabled children, but with all children Schools cannot control 

what siblings do at home and have little control over what peers do to peers at shopping 

malls and street corners. Consequently, this study has little application to the issues before 

the Commission.

The 2009 study cited by Commissioner Achtenberg asked essentially the same 

questions to the parents of only 34 children who had been diagnosed with Asperger‘s 

 

44 Little at 47-48.
Peer-to-Peer Violence and Bullying 201

Syndrome. Like the earlier study, it used a nonrandom sample. The parents had been 

―recruited online, in clinics and at autism conferences.‖45

The results showed high rates of incidents, though not nearly as high as in the 2002 

study it is modeled after. The 2009 study found that 64% of parents report some sort of 

bullying or harassment and 50% said his or her child had been scared by peers or siblings.

Again, this includes bullying or harassment anywhere, not just in school. In addition, 11.8% 

reported that the child at issue had not been invited to any other child‘s birthday that year, 

5.9% said that he or she was routinely chosen last or near last for sports teams and 2.9% said 

he or she sat alone at lunch everyday.46

A few additional points may be also useful here:

 Asperger‘s Syndrome children are sometimes characterized by aggression 

themselves, so insofar as they are more likely to be in the company of 

other Asperger‘s Syndrome children, this may tend to elevate levels of 

violence. It is also possible that some of the incidents reported by parents 

were actions taken by non-Asperger‘s children who, rightly or wrongly, 

perceived themselves to be acting in self-defense.

 Asperger‘s Syndrome children are sometimes characterized by 

unwarranted or inappropriate fears, so the notion that 50% of these 

children were said to experience fear of their peers may be less 

informative than it appears on the surface.

 One of the most well-known characteristics of Asperger‘s Syndrome 

children is an inability to judge nonverbal social cues—including facial 

expressions to voice inflections. As a result, insofar as parents are relying 

on their child‘s report of an incident that occurred outside their field of 

vision, they may receive an inaccurate account of what happened. 47

The bottom line is that we have not begun to quantify how much more likely a child 

with Asperger‘s Syndrome is to be bullied in school by other students—although it is easy to 

believe that they are. But even if we could quantify it, it would be insufficient to justify 

 

45 Carter at 148.

46 Carter at 150 (only 18 respondents, those with children ages 4-14 were asked the questions on social 

shunning).

47Fred R. Volkmar & Ami Klin, Diagnostic Issues in Asperger Syndrome, in Asperger Syndrome 25, 31, 35 

(Ami Klin, Fred R. Volkmar & Sara S. Sparrow eds., 2000).
202 Dissenting Statement of Commissioner Gail Heriot

federal efforts to influence local bullying policy. Nothing in either of these studies shows that 

local authorities are not addressing the matter in the best way they know how or that more 

federal supervision would be a useful improvement.48

Bullying on the Basis of the Victim’s Religion: Commissioner Achtenberg also 

draws our attention to two surveys by the Sikh Coalition—one in the San Francisco Bay Area 

in 2010 and one in New York City in 2007—on the subject of religious based discrimination.

Of these, I have been able to locate and examine one—the New York City survey.

The fact that a survey had been conducted by an advocacy organization should 

ordinarily cause a critical reader to scrutinize it a bit more carefully than usual.49 In this case, 

however, the survey does not require particularly careful scrutiny to reveal its problems.

The report has the tendentious title Hatred in the Hallways: A Preliminary Report on 

Bias Against Sikh Students in New York City‟s Public Schools.

50 It reports the results of a poll 

of 205 Sikh children in New York, primarily in the borough of Queens (where most New 

York Sikhs reside). Two things are crucial to understanding the results obtained in it:

Because the report states that 77.5% of Sikh boys and 58.4% of Sikh students 

generally report being teased or harassed on account of their Sikh religion, the word ―teased‖

must be emphasized. The Free Dictionary defines ―tease‖ this way:

1. To annoy or pester; vex.

2. To make fun of; mock playfully.

Despite the Sikh Coalition‘s assertion that its findings are ―shocking by any 

standard,‖ it is never shocking to find that children tease each other. Children always tease 

 

48 It should be noted that these very useful studies were not written for the purpose of justifying a federal 

bullying policy. Rather they were intended to provide information to pediatric nurses and other health 

professionals that would take them a step beyond their own clinical observations. In the absence of this 

evidence, these professionals would have even less to go on.

49 On the other hand, this can be carried too far. Sometimes advocacy organizations are in the best position to 

bring problems to public attention that might otherwise be neglected.

50 The Sikh Coalition, Hatred in the Hallways: A Preliminary Report on Bias Against Sikh Students in New 

York City‘s Public Schools (June 2007).
Peer-to-Peer Violence and Bullying 203

each other. It would be shocking if they didn‘t. Indeed, all but the most humorless adults I 

know indulge in it now and then too. Sometimes children take it too far; indeed, sometimes 

adults take it too far. But there is nothing in the report to separate friendly but impish teasing 

from something worthy of discipline, much less worthy of federal intervention. There may 

well be a problem, but this report has not uncovered it.

It should also be noted that unlike the authors of some of the other studies cited in the 

Report, the Sikh Coalition evidently interviewed a number of quite young students.51 That 

puts the report‘s finding that ―[t]wo out of five Sikh children who wear turbans or patkas

[religious head coverings for younger boys] are physically harassed—beaten or touched on 

the head‖—in a different light. Beaten or touched on the head does not mean beaten. Among 

the younger children, I would expect the number who have been ―touched‖ to be extremely 

high. Younger children touch each other. They roll in the grass with each other, they blow 

spit balls at each other, and they put chewing gum in each other‘s hair. They are especially 

likely to want to touch a schoolmate if they see something that in their ignorance appears to 

be a funny hat. Children‘s ignorance, with proper treatment, goes away. Federal 

bureaucracies created to solve a problem that is best solved locally do not.52

I am confident that the Sikh Coalition is correct that some Sikh children have been 

harassed on account of some other children‘s misperceptions that they are terrorists.53 In that 

 

51 This is clear because the summary of the results repeatedly refers to students who wear ―patkas,‖ which are 

head coverings worn by young boys before they are old enough to wear turbans. A Sikh Coalition video also 

features a photograph of a quite young boy being interviewed for the survey. See Sikh Coalition, Sikh Coalition 

NYC Civil Rights Survey (May 11, 2007), available at http://www.youtube.com/watch?v=j61q1LTaN-8.

52 It is worth pointing out that the high rates of teasing and/or harassing on account of religion for Sikh children 

seems to be confined to boys—likely for the obvious reason that they are ones who wear turbans or patkas. The 

study stated that ―77.5% of Sikh boys we surveyed who go to school in the borough of Queens report being 

teased or harassed on account of their Sikh identity.‖ In contrast, ―58.4 percent of Sikh students report being 

teased or harassed at school on account of their Sikh identity. For reasons that are not discussed in its report, the 

Sikh Coalition interviewed approximately twice as many boys as girls (65.4% vs. 34.6%) in its study. Given the 

turban/patka issue, this, of course, artificially inflates the numbers of children who have been teased and/or 

harassed.

53 If it is any consolation, I grew up during the Cold War, and I was accused by another child of being a spy for 

what was then commonly called ―Red China.‖ Just as Sikhs are not Muslim, I am not Asian. I do have dark, 

straight hair, or at least I did. And even if I were Asian, I am not a spy. The little girl who accused me of this 

later became a close friend. I am not trying to make light of all accusations suffered by Sikhs. Some are 

obviously more serious than others. For example, in the days directly after September 11, 2001, Frank Silva 

Roque, a man with serious mental problems, killed Balbir Singh Sodhi, a Sikh gas station owner in Arizona, 

believing him to be a Muslim terrorist. Roque was convicted and sentenced to death, but the Arizona Supreme 
204 Dissenting Statement of Commissioner Gail Heriot

respect the survey may provide a useful reminder for teachers, guidance counsellors and 

principals: Children can be ignorant hellions. They need to be taught (1) Sikhs are not 

Muslims; and (2) Even if they were Muslims, that does not make them terrorists. A good 

course in world religions would work wonders on both counts, and it is likely to be quite a bit 

more effective than federal laws that require more training for teachers on how to prevent 

harassment.

Unfortunately, there is one more point that needs to be put out in the open with regard 

to Hatred in the Hallways. When the Sikh Coalition undertook the study (along with a 

similar study of adult Sikhs), it placed a promotional video on the internet explaining the 

motives and methods for conducting the survey. In that video, Mehtab Kaur, who is 

identified as a community advocate with the Sikh Coalition, states that the purpose of the 

survey was ―to get statistics to approach government agencies and say, you know, X number 

of people in our community have experienced this, or you know, 45 out of 50 students 

surveyed say that have problems with discrimination and bullying at New York City schools.

Let‘s do something.‖54 But then she said something disturbing: ―While administering the 

survey on Survey Day, I think most of us were surprised by the fact that, you know, some 

people said they hadn‘t experienced any discrimination and but when pressed further, you 

know, we—uh—one of the questions in the survey asks,  ̳Has anyone ever called you bin 

Laden or a terrorist?‘ and people had become so used to being called, you know, such 

derogatory names that they didn‘t really consider it harassment anymore.‖55

It is hard to avoid the conclusion that Ms. Kaur is not opposed to coaching survey 

subjects. She seems to believe that if the survey subject tells you that he or she hasn‘t been 

 

Court reduced his sentence to life imprisonment, citing as mitigating factors both his low IQ and mental illness. 

But just as not all accusations that a Sikh is a terrorist are insignificant child‘s play, some really are insignificant 

child‘s play. Hatred in the Hallways fails to make distinctions among accusations and hence is not particularly 

helpful. 

54 These statements were made before the project was completed. She also stated in the video, ―Our goal is to 

have 1000 surveys completed by the end of the project, and our larger goal is to take these numbers and present 

them to government agencies who can help our community in different ways....‖

55 Sikh Coalition NYC Civil Rights Survey (May 11, 2007), available at 

http:www.youtube.com/watch?v=j61q1LTaN-8.
Peer-to-Peer Violence and Bullying 205

discriminated against or hasn‘t been bullied, the thing to do is press further. Under the 

circumstances, relying on such a survey seems inappropriate.56

Bullying on the Basis of the Victim’s Sex: Commissioner Achtenberg‘s Statement 

points out that ― ̳a 2001 study ... found that 81 percent of students in grades 8 to 11 reported 

experiencing sexual harassment, including 83 percent of girls and 79 percent of boys.‖57

This too needs to be put into perspective. Only about 14% of students said that there 

is ―a lot‖ of sexual harassment going on in their school. Almost as many—9%—said that 

there was not any.58 Overwhelmingly, students answered ―Some but not a lot‖ or ―Only a 

little.‖

Students were given the following broad definition of harassment: ―Sexual 

harassment is unwanted and unwelcome sexual behavior that interferes with your life. Sexual 

harassment is not behaviors that you like or want (for example wanted kissing, touching or 

flirting).‖ Examples given to students included ―Made sexual comments, jokes, gestures, or 

looks,‖ ―Spread sexual rumors about you,‖ ―Flashed or  ̳mooned‘ you,‖ and ―Said you were 

gay or lesbian‖ and ―Wrote sexual messages/graffiti about you on bathroom walls, in locker 

rooms, etc.‖ The categories that drew the most affirmative responses were ―made sexual 

comments, jokes, gestures, or looks (71%),‖ ―Spread sexual rumors about them (61%), and 

―Said they were gay or lesbian‖ (61%). 

Students were also invited to define sexual harassment themselves. Among the 

responses they gave were the extraordinarily broad ―Any unwanted attention,‖ ―When 

someone invades your personal body space or privacy,‖ and ―Someone making advances 

towards me and saying things that make me feel very uncomfortable.‖ A few students 

 

56 I note that unlike in most scholarly articles (and I surely do not wish to imply here that scholarly studies are 

not also subject to political bias), in Hatred in the Hallways, the reader is not told how the questions to the 

survey subjects were worded.

57 AAUW Educational Foundation, Hostile Hallways: Bullying, Teasing and Sexual Harassment in School 

(2001).

58 Id. at 12, Figures 3 & 4.
206 Dissenting Statement of Commissioner Gail Heriot

seemed exasperated with the concept: ―Feminist-politically correct language for saying 

things like  ̳hello good-looking.‘‖

For a sense of how important the students themselves regarded this conduct, one 

may look at how they responded to the particular harassment they experienced. Only 20% of 

students said they had told a teacher or other school employee about an incident of sexual 

harassment.59 The study produced the following list of responses to the question, ―Why 

didn‘t you tell anyone?‖ I quote the list in the study in full:

Boys

―I don‘t know. Thought it was normal kid stuff.‖ (eighth-grader)

―Because I didn‘t really care, it was not a big deal.‖ (ninth-grader)

―Because I‘m a guy and I don‘t care. I‘m not so insecure that someone saying I‘m gay 

is gonna bother me. I‘m not, so who cares?‖ (ninth-grader)

―I could handle it myself.‖ (11th-grader)

Girls

―I don‘t know. I just didn‘t feel it necessary.‖ (ninth-grader)

―I liked it.‖ (10th-grader).

―... make a mountain out of a molehill. I handled the situation myself, or then 

eventually went away).‖ (10th-grader)

―I didn‘t want to be a tattletale.‖ (11th-grader)

―It wasn‘t anything that bothered me, and I knew that it would stop. And it did.‖

(11th-grader)60

This study was clearly written to highlight sexual harassment as a serious issue. If the 

study‘s authors had received more troubling answers to the question of why a student had 

 

59 Id. at 29.

60 Id. at 27.
Peer-to-Peer Violence and Bullying 207

failed to draw a harassment incident to the attention of a teacher or other school official—such 

as ―I was afraid to‖—it is unthinkable that they would have failed to report it.

In the end, this study proves neither that further federal action is needed nor that 

past federal action has produced beneficial results.

Bullying on the Basis of the Victim’s Race: In her Statement, Commissioner 

Achtenberg quotes from the Report‘s discussion of the California Healthy Kids Survey for 

her belief that ―[u]p to one-quarter of racial and ethnic minority students are targeted for 

peer-to-peer bullying, harassment, and violence:

―[t]he California Healthy Kids Survey conducted in 2007-2009 found that 

when youth in California were bullied or harassed on school property, the 

most common specific reason cited was because of their race or national 

origin, with about 18 percent of students in grades 7, 9, and 11 reporting at 

least one bullying incident in the past year for this reason. ... When results for 

9

th and 11th grade students are broken down by race and ethnicity, AfricanAmerican students reported being bullied or harassed due to their race or 

ethnicity at the highest rate—23 percent. Twenty-two percent of AsianAmerican students, 22 percent of Native Hawaiian or Pacific Islanders 

students and 20 percent of Native American students reported being harassed 

due to their race, ethnicity, or national origin as well.‖

I should add the rate for non-Hispanic white students was 13% and for Hispanic or 

Latino/Latina students it was 17%.

All these figures can be somewhat misleading. It is not always possible to know 

why one is being harassed or bullied.61 A certain number of times an individual will surmise 

from the circumstances that he is being targeted on account of his race given that the 

bully/harasser is of another race, and a certain number of times he will be wrong. If all 

encounters with bullies and harassers were random and none were racially motivated, 

members of racial minorities may nonetheless more frequently conclude that they have been 

 

61 The question propounded to students was, ―During the past 12 months, how many times on school property 

were you harassed or bullied for any of the following reasons?‖ Among the reasons listed was ―Race, Ethnicity 

or National Origin.‖ Anyone who answered more than never would have been included in the tally.
208 Dissenting Statement of Commissioner Gail Heriot

racially targeted simply because a larger percentage of their encounters with bullies or 

harassers will be with members of another race.

A useful check on the conclusion that African Americans and Asians are more 

likely to be the target of racially motivated bullying than whites or Hispanics is the Health 

Behaviour of School-Aged Children survey. In ―Bullying Behaviors Among US Youth:

Prevalence and Association with Psychosocial Adjustment,‖ Dr. Tonjah Nansel et al. 

analyzed the data collected in that massive survey and found that black students report that 

they have been bullied less often than white or Hispanic students.62 Their research showed 

that 29.9 percent of black students reported that they had been bullied during the current 

school term; in contrast 43.7 percent of white students reported bullying. The figure for 

Hispanics is 40.6 percent; no figures were given for other races.63 To be sure, these figures 

are for bullying of any kind, not specifically for bullying based on race or ethnicity. Still, it 

would be odd to find that while black students are subjected to more bullying based on race 

or ethnicity, they were correspondingly bullied so much less on other bases that it nets out in 

favour of less bullying overall.

The HBSC also sheds useful light on the CHKS‘s finding that ―the most common 

specific reason cited‖ for bullying is ―race or national origin.‖64 In fact, the CHKS only asked 

about what it calls ―Hate-Crimes Reasons‖ for bullying—―race, ethnicity or national origin,‖ 

―religion,‖ ―gender,‖ ―sexual orientation,‖ and ―physical/mental disability.‖ In contrast, the 

HBSC asked students whether they had been ―belittled about religion or race,‖ ―belittled 

about looks or speech,‖ ―subjects of rumors,‖ or ―subjects of sexual comments or gestures.‖

Not surprisingly to anyone who has attended high school, ―belittled about looks or 

speech‖ came in first, followed closely by ―subjects of rumors.‖ ―Belittled about religion or 

race‖ was not just last, it was dead last. All the other categories were more than twice as 

 

62 Tonja R. Nansel, Mary Overpeck, Ramani S. Pilla, W. June Ruan, Bruce Simons-Morton & Peter Scheidt, 

Bully Behaviors Among US Youth: Prevalence and Association with Psychosocial Adjustment, 285 JAMA 

2094 (April 25, 2001).

63 The difference between white and Hispanic was not statistically significant. Id. at 2097, Table 2. Similarly, 

8.8% of white students, 6.7% of black students and 8.1% of Hispanic students reported that they were bullied on 

a weekly basis. These differences, however, were not statistically significant.

64 Statement of Commissioner Achtenberg at 101 (quoting Report at 12).
Peer-to-Peer Violence and Bullying 209

common.65 This is not to suggest that bullying on the basis of race or ethnicity is not 

deserving of attention by teachers and principals. It simply needs to be seen in context. Also 

not surprisingly, the serious differences in bullying levels were not between races, but 

between genders and age groups. While females are more likely to be the subject of ―sexual 

comments or gestures,‖ males are much more likely to be ―hit, slapped or pushed.‖ Sixth 

graders are about three times more likely to report being bullied on a weekly basis than 10th

graders. A full majority of 6th graders report having been bullied in one way or another; by 

10th grade that number is very nearly cut in half.66 This latter fact is actually good news. It 

shows that eventually the lessons of civility are learned by most students, though not as early 

as might be hoped for. It does indeed get better.67

Bullying Based on the Victim’s Sexual Orientation: Everyone agrees that ― ̳[c]ompared 

with students who are not sexual minorities, a disproportionate number of sexual minority 

students engage in a wide range of health-risk behaviors.‘‖68 For example, according to the 

Center for Disease Control and Prevention, approximately 6.4% of self-identified 

heterosexual high school students report that they have attempted suicide, while 25.8% of 

self-identified gay or lesbian high school students have and 28.0% of self-identified bisexual 

high school students.69

 

65 Nansel at 2097. The rates among students who reported that they had ever been bullied were as follows: 

―Belittled about religion or race‖ (25.8%), ―Belittled about looks or speech‖ (61.6%), ―Hit, slapped, or pushed‖ 

(55.9%), ―Subjects of rumors‖ (55.6%), Subjects of sexual comments or gestures‖ (52.0%). 

66 Id. at 2097

67 The ―It Gets Better‖ Project was founded by Dan Savage and Terry Miller in response to suicides of gay 

teenagers. Its purpose is to urge them to hang in there; life as an adult will be better. This message strikes me as 

important for all pre-teens and teenagers, straight or gay, bullied or non-bullied. Few teenagers find growing up 

easy. Adults who tell adolescents that ―These are the best years of your life‖ are frequently well meaning, but 

their words are not very comforting and (mercifully) usually inaccurate. 

68 Statement of Commissioner Achtenberg at 109, quoting Emily O‘Mally Olsen, Tim McManus, Steve 

Kinchen, David Chyen, William A. Harris, Howell Wechsler, Sexual Identity, Sex of Sexual Contacts, and 

Health-Risk Behaviors Among Students in Grades 9-12—Youth Risk Behavior Surveillance, Selected Sites, 

United States, 2001-2009, Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report 

(June 6, 2011)(Early Release).

69 These figures are medians of the results of 13 state-wide and local surveys. The figures for reported attempted 

suicides broken down by actual sexual contacts (rather than reported sexual orientation) were 8.4% (opposite 

sex sexual contacts only), 19.7% (same sex sexual contacts only) and 29.8% (sexual contact with both sexes). 

Students were asked about their conduct for the 12 month period immediately preceding the point during which 

they filled out the questionnaire.
210 Dissenting Statement of Commissioner Gail Heriot

The tendency to engage in high-risk behaviors is not confined to suicide attempts.

According to the Center for Disease Control and Prevention, about 7.6% of heterosexual 

students report smoking cigarettes daily, while 23.4% of gay or lesbian students and 24.8% 

of bisexual students do.70 Similarly, 4.3% of heterosexual students report that they currently 

drink alcohol on school property, while much larger numbers of gay or lesbian students and 

bisexual students do—11.8% and 13.8% respectively.71 Drug use figures are similarly 

skewed.72

This tendency includes activity that one would not necessarily associate with troubled 

youth. Only about 12.3% of heterosexual high school students report that they rarely or never 

wear a seatbelt when riding in a car with someone else. By contrast, the figures for gay or 

lesbian students and for bisexual students were 21.0% and 20.4% respectively. Nevertheless, 

the Center for Disease Control and Prevention data do not show that gay or lesbian and 

bisexual youth always score higher on unsafe behaviors than heterosexual youth. Among gay 

or lesbian students, 22.5% and among bisexual students 16.5% reported eating vegetables 

three or more times a day. The figure for heterosexual students was only 11.3%.73

 

70 Olsen et al, at 75, Table 26. Again, these figures are medians of 13 state and local studies. The figures are for 

any 30-day period, and do not necessarily imply that a student was currently smoking daily.

71 Id. at 89, Table 40.

72 Id. at 90-102, Tables 41-53. For example, 4.6% of heterosexual, 22.9% of gay or lesbian and 20.4% of 

bisexual students report using the drug ecstasy. Id. at 97, Table 48.

In view of this, it does not seem surprising to me that sexual minority students are more likely to ― ̳receive 

punishment from schools, police or courts.‖ See Statement of Commissioner Roberta Achtenberg at 111

(quoting Institute of Medicine of the National Academies, The Health of Lesbian, Gay, Bisexual, and 

Transgender People: Building a Foundation for Better Understanding 159 (2011). Commissioner Achtenberg 

cites the Institute of Medicine report for the proposition that this disproportionate discipline was somehow 

unmerited. In fact, however, the reference she cites is merely a citation to another article. It is not an 

endorsement of that other article‘s findings. See Kathryn E.W. Himmelstein and Hannah Brickner, CriminalJustice and School Sanctions Against Non-Heterosexual Youth: A National Longitudinal Study, 127 Pediatrics 

49 (January 2011). Two days after the internet version of the article was published, a letter dated December 8, 

2010 from Donald J. Harris, Ph.D. sent to Pediatrics stated: ―There is a sharp disconnect between the statistical 

findings presented in this report and the authors‘ conclusion that  ̳nonheterosexual youth suffer disproportionate 

educational and criminal-justice punishments that are not explained by greater engagement in illegal or 

transgressive behaviors.‘ ... [T]he categorical language of the authors‘ conclusion is based almost entirely on a 

pattern of findings that did not reach the stated criterion of statistical significance.‖ See Replies to CriminalJustice and School Sanctions Against Nonheterosexual Youth: A National Longitudinal Study, Pediatrics web 

site. If this Report were not put together so hurriedly, perhaps we would have had time to figure out who is 

right. 

73 Id. at 115, Table 66. There is, however, research that finds that eating disorders are more common among 

gay, lesbian and bisexual students than they are among heterosexual students. S. Austin, N.J. Ziyadeh, H.L. 
Peer-to-Peer Violence and Bullying 211

Commissioner Achtenberg argues that ―the extra pressure created by structural stigma is 

responsible for such disparate outcomes to the extent that they appear to exist.‖ 74 She defines 

―structural stigma‖ to mean ―the collective process by which majority class members give 

permission to the society as a whole to victimize minority class members.‖75

It is perfectly plausible that the increased victimization can lead to an increase in what 

social scientists like to call (with bureaucratic blandness) ―negative outcomes.‖ But there is 

no way to draw the conclusion that increased victimization is the sole or even a primary 

cause of the increased tendency towards self-destructive conduct based on the available 

evidence. One simply has to take it on faith.76

 

Corliss, M. Rosario, D. Wypi, J. Haines, C.A. Carmago, Jr. & A.E. Field, Sexual Orientation Disparities in 

Purging and Binge Eating from Early to Late Adolescence, 45 J. Adolescent Health 238 (2009).

74 There may indeed be external structural issues that are contributing factors to the high rates of high-risk 

behavior on the part of gay, lesbian and bisexual youth. But they do not all relate to victimization. For example, 

since sexual minorities are minorities, the search for love may be a little harder. They are less likely to find a 

soul mate or even a reasonably compatible mate within a short distance from their home. As a result, they may 

be less likely to form satisfactory romantic relationships while still in school. A failed relationship may be a 

greater problem, since the common adage that there are ―plenty of fish in the sea‖ may not apply. Another 

external structural issue relates to family structure. Through genetic inheritance, white parents tend to give birth 

to white children, while Asian parents tend to give birth to Asian children. Through cultural inheritance, Roman 

Catholic parents tend to have Roman Catholic children and Buddhist parents have Buddhist children. But most

gay, lesbian or bisexual children are being reared by their own biological, heterosexual parents or parent. (Gay, 

lesbian and bisexual adults sometimes have biological or adopted children, but those children are usually 

heterosexual, thus creating the problem in reverse.) No doubt the pressures of parental disapproval can be a 

problem for sexual minority children. But even in the absence of disapproval, anything that makes a child 

different from his or her parents places some element of stress on the relationship. Sexual orientation is just one 

more such potential difference. Sympathetic parents, for example, may wish to provide advice on romantic 

relationships, but feel inadequate to the task, since their experience is dissimilar. Or their children may perceive 

them to be inadequate to the task, when in fact they are quite able to help, but their advice is not sought.

75 She later states her point more modestly (and much more defensibly): ―The reasons that sexual minority 

youth may experience suicidal ideation and/or acts in response to victimization are not entirely clear.

Nevertheless, social stigma may well drive some number of these experiences.‖ Statement of Commissioner 

Roberta Achtenberg at 111-12.

76 See Ritch C. Savin-Williams, Then and Now: Recruitment, Definition, Diversity, and Positive Attributes of 

Same Sex Populations, 44 Developmental Psych. 135 (2008) (internal citations omitted). In that article, Dr. 

Savin-Williams writes intriguingly about the issue: ―[M]ost researchers assume that it is not same-sex sexuality 

per se that impacts development but the victimization, discrimination, and stigmatization that it engenders. If so, 

what is it about sexual prejudice that is developmentally more deleterious to the recipients than other forms of 

social ostracism to their recipients, such as that meted out to women, ethnic minorities, the poor, the 

unattractive, the overweight, or the disabled? Alternatively, one might argue (but few do) that because of their 

possibly altered hormonal and anatomical constitution, same-sex attracted individuals navigate a unique 

developmental instability or fluctuation across a range of personal attributes (sex object choice, cognitive skills, 

physical features, hobbies, career choices). The sex atypicality of same-sex populations suggests that some 

same-sex attracted individuals have a different brain structure, physiology, or hormonal status than others of 

their biological sex. Whether these potential biological differences make same-sex oriented individuals unique, 

and if so, to what degree are unknown, largely because the biologic data are so preliminary that few direct or 

indirect pathways have been established.‖
212 Dissenting Statement of Commissioner Gail Heriot

For one thing, there are many groups with high rates of suicide whose behavior is 

unlikely to be the result of external victimization or social stigma. According to data from the 

World Health Organization, Lithuania, South Korea, Kazakhstan, Belarus, Japan and Russia 

were the top nations for suicide. The United States ranked 39th with a rate of suicide roughly 

one third of Lithuania‘s. Jamaica has one of the lowest suicide rates in the world. Yet 

somebody is victimizing somebody there; it has one of the highest murder rates.

In the United States, the Centers for Disease Control and Prevention report that American 

Indians/Alaska natives have the highest rates of suicide. They are followed closely by nonHispanic whites. Other races and ethnicities—Asians/Pacific Islanders, Hispanics and nonHispanic blacks—were a distant third, fourth or fifth.77 Although obese persons receive far 

more than their share of bullying, social stigma and victimization and have high rates of 

depression, suicide rates among them are very low.78

There have been efforts to prove that the high risk behavior of gay, lesbian and bisexual 

students is the result of victimization of one sort or another. But research that is said to prove 

it is usually measuring something quite different from what advocates suppose. And even 

when most people can agree on what is being measured, causation cannot be established.

Consider, for example, Family Rejection as a Predictor of Negative Health Outcomes in 

White and Latino Lesbian, Gay and Bisexual Young Adults, a 2009 study by Caitlin Ryan, 

David Huebner, Rafael M. Diaz and Jorge Sanchez.79 In it, the authors argue that they have 

established ―a clear link between specific parental and caregiver rejecting behavior and 

negative health problems in young lesbian, gay and bisexual adults.‖80 But are the authors 

 

77 Asian/Pacific Islander females had the third highest rate of suicide among females, followed by Hispanics and 

non-Hispanic blacks. Among males, non-Hispanic blacks had the third highest rate, with Hispanic males at a 

very close fourth and Asian/Pacific Islander males with the fifth-highest rate. Rates were age-adjusted. See 

Centers for Disease Control and Prevention, National Suicide Statistics at a Glance (2002-2006).

78 Ottar Bejerkeset, Pai Romundstad, Jonathan Evans & David Gunnell, Association of Adult Body Mass Index 

and Height with Anxiety, Depression, and Suicide in the General Population, 167 Am. J. Epidemiology 193 

(2008).

79 Caitlin Ryan, David Huebner, Rafael M. Diaz, & Jorge Sanchez, Family Rejection as a Predictor of Negative 

Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Young Adults, 123 Pediatrics 346 (Jan. 

2009).

80 Id. at 346. For example, 19.7% of those classed as having ―low rejection scores‖ reported suicide attempts, 

while 35.1% of those with moderate rejection scores and 67.6% of those with high rejection scores did. 
Peer-to-Peer Violence and Bullying 213

measuring actual rejection or just perceptions of rejection? In the study, 224 white and Latino 

gay, lesbian and bisexual young adults were asked to recall whether their parents or 

caregivers blamed them for any anti-gay mistreatment they might have suffered, how often 

their parents or caregivers made disparaging remarks about gays, lesbians or bisexuals and 

how often they were excluded from family activities, and similar questions.

The authors found that those with higher family rejection scores tended to have higher 

rates of suicidal ideation and of attempted suicide, higher rates of drug use and higher rates 

of unprotected sex.81 But are they really finding an association between family rejection and 

(for example) depression? Or are they finding that depressed people are more likely to 

remember, believe or report that they suffered rejection? Even if the reports of all 224 

participants were 100% accurate, were the parents excluding them from family activities 

because of their sexual orientation? Or was it because of their illegal drug use, depression or 

suicide attempts? 

Perhaps one day we will have better insight into what causes high-risk conduct among 

gay, lesbian and bisexual teenagers. But we need not wait for that day to ensure that their 

rights and the rights of all students are respected in the schools. In my opinion, the best way 

to do that is allow teachers, principals and local school districts to do their jobs. Nothing in 

this Report has persuaded me otherwise.

 

Similarly, 22.4% of those with low rejection scores, 44.6% of those with moderate rejection scores, and 63.5% 

of those with high rejection scores reported depression. Id at 350, Table 4.

81 The data on the relationship of family rejection with heavy drinking and with sexually transmissible disease 

diagnosis were not statistically significant. Id. at 350, Table 4.
214 Statement of Commissioner Michael Yaki 

STATEMENT OF COMMISIONER MICHAEL YAKI

The U.S. Commission on Civil Rights, historically, has never shied away from tackling 

controversial issues in support of civil rights. Our historic reports on civil and voting rights in 

the South in the early 60s became the predicate for the Civil Rights Act of 1964 and the 

Voting Rights Act of 1965. Through extensive interviews, hearings, and testimony both 

voluntary and compelled, little doubt was left that discrimination wildly at variance with 

Constitutional principles and protections needed to be remedied, sooner rather than later, and 

aggressively rather than tepidly as had been done in the past.

This Report had the potential to join the pantheon of exalted papers of the past.

Unfortunately, due to a series of circumstances both beyond and within our control, it failed.

The rushed timeline, the inability to thoroughly scour the literature and, most egregiously, the 

absence of a rigorously constructed and sound legal theory doomed this exercise from the 

start. And while I voted in favor of the report, it was only to validate the one, truly, groundbreaking aspect – that this Report was the Commission‘s first real foray into the experiences 

of people who have been defined solely by their sexual orientation.1

Nevertheless, the Commission‘s failure to tackle head-on the continued discrimination 

against Americans who are gay, lesbian, bisexual or transgender in a meaningful way that 

utilizes extant Constitutional doctrine is the greatest omission of this Report. I believe that in 

the context of the issues brought before us, First Amendment doctrine has less application to 

the context of school bullying when it is balanced against a countervailing principle of 

protecting a suspect class – in this case, youth who identify or are identified as LGTB.

 

1

In a report released last year – prior to the changes in membership on the Commission that approved this 

Report -- my Statement on the Multiethnic Placement Act report focused on the failure of the Commission to 

address same-sex adoption: ― However, the Commission majority, by its actions to date, has consistently 

refused to act in accordance with our mandate to ensure justice and equal treatment for all Americans. By that I 

am explicitly discussing the need for this Commission to recognize continued discrimination against Americans 

who are gay, lesbian, bisexual or transgender. This void in our mandate is evident by this report‘s 

refusal/inability to explore or to encourage facilitation of adoption by one important sector of the American 

population: gay men and lesbians.‖
Peer-to-Peer Violence and Bullying 215

In cases before the U.S. Supreme Court, the particular vulnerabilities of children have 

vaulted them into a special status worthy of a strong government interest. Whether the case 

of Prince v. Massachusetts, 321 U.S. 158 (1944), Jacobsen v. Massachusetts, 197 U.S. 11 

(1905), or more recently the treatment of juvenile offenders in Roper v. Simmons, 543 U.S. 

551 (2005), the Courts have long held that children have a different place in the application 

of Constitutional doctrine.

In both Prince and Jacobsen, a parents‘ assertion of Free Exercise principles was found to 

not withstand a compelling government interest in laws designed to protect children. In 

Roper, Justice Kennedy‘s opinion for the Court explicitly embraced social science research 

on the adolescents as a reason for exempting youth from the application of the death penalty 

and providing them the application of the Eighth Amendment proscription against cruel and 

unusual punishment.

―Three general differences between juveniles under 18 and adults demonstrate 

that juvenile offenders cannot with reliability be classified among the worst 

offenders. First, as any parent knows and as the scientific and sociological 

studies respondent and his amici cite tend to confirm, ―[a] lack of maturity and 

an underdeveloped sense of responsibility are found in youth more often than 

in adults and are more understandable among the young. These qualities often 

result in impetuous and ill-considered actions and decisions.‖ Johnson, supra, 

at 367; see also Eddings, supra, at 115–116 (―Even the normal 16-year-old 

customarily lacks the maturity of an adult‖). It has been noted that 

―adolescents are overrepresented statistically in virtually every category of 

reckless behavior.‖ Arnett, Reckless Behavior in Adolescence: A 

Developmental Perspective, 12 Developmental Review 339 (1992). In recognition of the comparative immaturity and irresponsibility of juveniles, almost 

every State prohibits those under 18 years of age from voting, serving on 

juries, or marrying without parental consent. See Appendixes B–D, infra. 

The second area of difference is that juveniles are more vulnerable or 

susceptible to negative influences and outside pressures, including peer 

pressure. Eddings, supra, at 115 (―[Y]outh is more than a chronological fact. It 

is a time and condition of life when a person may be most susceptible to 

influence and to psychological damage‖). This is explained in part by the 

prevailing circumstance that juveniles have less control, or less experience 

with control, over their own environment. See Steinberg & Scott, Less Guilty 

by Reason of Adolescence: Developmental Immaturity, Diminished 

Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 

1014 (2003) (hereinafter Steinberg & Scott) (―[A]s legal minors, [juveniles] 
216 Statement of Commissioner Michael Yaki 

lack the freedom that adults have to extricate themselves from a criminogenic 

setting‖). 

The third broad difference is that the character of a juvenile is not as well 

formed as that of an adult. The personality traits of juveniles are more 

transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis 

(1968).

Finally, and perhaps most fittingly, the most famous application of the unique nature of 

children in Constitutional doctrine was, not surprisingly, found in Brown v. Board of 

Education, 347 U.S. 483 (1954). The Court rejected its early holding in Plessy v. Ferguson, 

163 U.S. 537 (1896) in part, because the notion of ―separate but equal‖ was found to have 

deleterious effects on black children. The Court stated: 

―Segregation of white and colored children in public schools has a detrimental 

effect upon the colored children. The impact is greater when it has the 

sanction of the law, for the policy of separating the races is usually interpreted 

as denoting the inferiority of the negro group. A sense of inferiority affects the 

motivation of a child to learn. Segregation with the sanction of law, therefore, 

has a tendency to [retard] the educational and mental development of negro 

children and to deprive them of some of the benefits they would receive in a 

racial[ly] integrated school system...‖

In so finding, the Brown Court in footnote 11 cited a wealth of social science studies to 

buttress its claim.

Taken together, these cases argue strongly that government action to stop bullying in schools, 

particularly bullying against LGTB or LGTB-identified children, be given substantial 

deference with regard to competing First Amendment concerns. Substantial evidence was 

introduced showing the harm suffered by LGTB or LGTB-identified children as a result of 

bullying. Substantial evidence was introduced showing that LGTB and LGTB-identified 

children are targeted for bullying and harassment. 

This evidence, coupled with the unfortunate plethora of historical documented discrimination 

against the LGTB community, should end any debate over whether the Federal government 

can enact laws protecting LGTB children pursuant to its mandate under Section 5 the 14th
Peer-to-Peer Violence and Bullying 217

Amendment.2 While awaiting Congressional action, and rather than twist itself into knots 

with ―Dear Colleague‖ letters and stretching for jurisdiction under Title IX, the Department 

of Education should offer emphatic guidance or stringent rulemaking that any K-12 

institution receiving federal funds must provide strict protections against bullying based on 

race, gender, national origin, disability, religion and sexual orientation or perceived sexual 

orientation. These protections must be uniform, must be enforced, and have provisions for 

clear documentation and categorization.

 

2

Indeed, given that state action is involved in educating (and protecting) K-12 children, and that this is limited 

to a distinct group, any law should pass muster under the ―congruent and proportional‖ test of City of Boerne v. 

Flores, 521 U.S. 507 (1997).