II

107TH CONGRESS

1ST SESSION S. 1357

To provide for an examination of how schools are implementing the policy

guidance of the Department of Education’s Office for Civil Rights relating to sexual harassment directed against gay, lesbian, bisexual, and

transgender students.

IN THE SENATE OF THE UNITED STATES

AUGUST 3, 2001

Mr. WELLSTONE (for himself and Mr. FEINGOLD) introduced the following

bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To provide for an examination of how schools are implementing the policy guidance of the Department of Education’s Office for Civil Rights relating to sexual harassment directed against gay, lesbian, bisexual, and

transgender students.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. FINDINGS AND PURPOSE.

4 (a) FINDINGS.—Congress makes the following find5 ings:

6 (1) Although title IX of the Education Amend7 ments of 1972 (20 U.S.C. 1681 et seq.) does not
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1 prohibit discrimination on the basis of sexual ori2 entation, one section of the Department of Edu3 cation’s Office for Civil Rights’ 1997 final policy

4 guidance, entitled ‘‘Sexual Harassment Guidance:

5 Harassment of Students by School Employees,

6 Other Students, or Third Parties’’ published in the

7 Federal Register on March 13, 1997, 62 Fed. Reg.

8 12034, included a determination that ‘‘sexual har9 assment directed at gay or lesbian students that is

10 sufficiently serious to limit or deny a student’s abil11 ity to participate in or benefit from the school’s pro12 gram constitutes sexual harassment prohibited by

13 title IX under the circumstances described in this

14 guidance.’’. This language was unchanged in a 2001

15 update of the policy guidance entitled ‘‘Revised Sex16 ual Harassment Guidance: Harassment of Students

17 by School Employees, Other Students, or Third Par18 ties’’ for which a notice of availability was published

19 in the Federal Register on January 19, 2001, 66

20 Fed. Reg. 5512.

21 (2) That section of the 2001 ‘‘Revised Sexual

22 Harassment Guidance: Harassment of Students by

23 School Employees, Other Students, or Third Par24 ties’’ went on to state: ‘‘Though beyond the scope of

25 this guidance, gender-based harassment, which may
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1 include acts of verbal, nonverbal, or physical aggres2 sion, intimidation, or hostility based on sex or sex3 stereotyping, but not involving conduct of a sexual

4 nature, is also a form of sex discrimination to which

5 a school must respond, if it rises to the level that

6 denies or limits a student’s ability to participate in

7 or benefit from the educational program. . . . A school

8 must respond to such harassment in accordance with

9 the standards and procedures described in this guid10 ance.’’.

11 (3) There is evidence that brings into question

12 the degree to which the policy guidance on sexual

13 harassment against gay, lesbian, bisexual, and

14 transgender students is being implemented. For ex15 ample, a 7-State study by Human Rights Watch of

16 the abuses suffered by gay, lesbian, bisexual, and

17 transgender students at the hands of their peers,

18 published in ‘‘Hatred in the Hallways: Violence and

19 Discrimination Against Lesbian, Gay, Bisexual, and

20 Transgender Students in U.S. Schools’’ found that

21 such students were often the victims of abuses.

22 (4) A 2000 study by the American Association

23 of University Women focused on implementation of

24 title IX of the Education Amendments of 1972 more

25 generally, and the findings of that study, published
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1 in ‘‘A License for Bias: Sex Discrimination, Schools,

2 and Title IX’’, included a finding that many schools

3 and universities have not established procedures for

4 handling title IX-based grievances.

5 (5) The 2001 report of the Surgeon General,

6 entitled ‘‘Surgeon General’s Call to Action to Pro7 mote Sexual Health and Responsible Sexual Behav8 ior’’ notes that ‘‘antihomosexual attitudes are associ9 ated with psychological distress for homosexual per10 sons and may have a negative impact on mental

11 health, including a greater incidence of depression

12 and suicide, lower self-acceptance and a greater like13 lihood of hiding sexual orientation.’’. It goes on to

14 report: ‘‘Averaged over two dozen studies, 80 per15 cent of gay men and lesbians had experienced verbal

16 or physical harassment on the basis of their orienta17 tion, 45 percent had been threatened with violence,

18 and 17 percent had experienced a physical attack.’’.

19 (b) PURPOSE.—The purpose of this Act is to provide

20 for an examination of how secondary schools are imple21 menting the policy guidance of the Department of Edu22 cation’s Office for Civil Rights related to sexual harass23 ment directed against gay, lesbian, bisexual, and

24 transgender students.
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1 SEC. 2. STUDY OF HOW EDUCATIONAL INSTITUTIONS ARE

2 IMPLEMENTING THE POLICY GUIDANCE RE3 LATING TO SEXUAL HARASSMENT.

4 (a) IN GENERAL.—The United States Commission on

5 Civil Rights (hereafter in this Act referred to as the ‘‘Com6 mission’’) shall conduct a study of the 1997 final policy

7 guidance entitled ‘‘Sexual Harassment Guidance: Harass8 ment of Students by School Employees, Other Students,

9 or Third Parties’’ published in the Federal Register on

10 March 13, 1997, 62 Fed. Reg. 12034, and the application

11 of such policy guidance.

12 (b) SCOPE.—

13 (1) NATIONWIDE.—The study shall be con14 ducted nationwide.

15 (2) ELEMENTS OF STUDY.—The study shall ex16 amine, at a minimum, with regard to secondary

17 schools—

18 (A) the extent to which there exists sexual

19 harassment against gay and lesbian students in

20 secondary schools, using the applicable stand21 ards in the policy guidance of the Office for

22 Civil Rights described in subsection (a);

23 (B) the extent to which there exists gen24 der-based harassment that negatively affects

25 the learning environment of gay, lesbian, bisex26 ual, and transgender students in secondary
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1 schools, applying the definition of such gender2 based harassment contained in the 2001 update

3 of the policy guidance entitled ‘‘Revised Sexual

4 Harassment Guidance: Harassment of Students

5 by School Employees, Other Students, or Third

6 Parties’’ for which a notice of availability was

7 published in the Federal Register on January

8 19, 2001, 66 Fed. Reg. 5512;

9 (C) the level of awareness by school offi10 cials and students of the policy guidance de11 scribed in subsection (a); and

12 (D) the level of implementation of such

13 policy guidance.

14 (c) DEFINITION.—In this section, the term ‘‘sec15 ondary school’’ has the meaning given the term in section

16 14101 of the Elementary and Secondary Education Act

17 of 1965 (20 U.S.C. 8801).

18 SEC. 3. REPORTING OF FINDINGS.

19 (a) IN GENERAL.—Not later than 18 months after

20 the date of enactment of this Act, the Commission shall

21 transmit to Congress and to the Secretary of Education—

22 (1) a report of the Commission’s findings under

23 section 2; and
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1 (2) any policy recommendations developed by

2 the Commission based upon the study carried out

3 under section 2.

4 (b) DISSEMINATION.—The report and recommenda5 tions shall be disseminated, in a manner that is easily un6 derstandable, to the public by means that include the

7 Internet.

8 SEC. 4. COOPERATION OF FEDERAL AGENCIES.

9 (a) IN GENERAL.—The head of each Federal depart10 ment or agency shall cooperate in all respects with the

11 Commission with respect to the study under section 2.

12 (b) INFORMATION.—The head of each Federal de13 partment or agency shall provide to the Commission, to

14 the extent permitted by law, such data, reports, and docu15 ments concerning the subject matter of such study as the

16 Commission may request.

17 (c) DEFINITION.—In this section, the term ‘‘Federal

18 department or agency’’ means any agency as defined in

19 section 551 of title 5, United States Code.

20 SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

21 (a) IN GENERAL.—There are authorized to be appro22 priated to carry out this Act, such sums as may be nec23 essary for fiscal year 2002.
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1 (b) AVAILABILITY.—Any amount appropriated under

2 the authority of subsection (a) shall remain available until

3 expended.

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