When Bullying Is Discriminatory Harassment: What You Need to Know
By Alyssa Perez
Between October 2021 and September 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) received a record number of discrimination complaints—more than double the number of complaints received in the prior year.i This pattern illustrates the importance of school and education agency leaders understanding the relationship between bullying and discriminatory harassment. According to the most recent prepandemic federal statistics, about one in five students ages 12–18 experiences bullying.ii In a 2022 analysis of cyberbullying by the Pew Research Center, almost half (43%) of youth ages 13–17 reported experiencing some form of bullying or harassment online.iii
While many school and education agency leaders have acknowledged the pervasiveness of bullying and launched significant efforts to prevent, identify, and address it, some may still be unsure when and how bullying constitutes discriminatory harassment.
In some cases, but not in all, bullying constitutes discriminatory harassment. Bullying is discriminatory harassment when it is based on race, color, national origin, sex, religion, disability, language, or age. In such instances, leaders and practitioners have distinct responsibilities under federally enforced antidiscrimination statutes.iv These specific legal responsibilities still stand even if the misconduct is already addressed by a school’s antibullying policy.1
Two federal agencies, OCR and the U.S. Department of Justice (DOJ) Civil Rights Division’s Educational Opportunities Section, are responsible for enforcing antidiscrimination statutes and protecting students’ civil rights in education settings. They may work separately or together.
OCR is authorized to protect the civil rights of students through enforcing the following:
- 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
- Title II of the Americans with Disabilities Act of 1990
- The Age Discrimination Act of 1975
For the purposes of this discussion, we rely on OCR guidance to clarify when bullying constitutes discriminatory harassment.
On its website, StopBullying.gov, the U.S. Department of Health and Human Services defines bullying as “unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance.”v It can take verbal, social, and physical forms. According to Cornell Law School, the legal definition of harassment is “words or behavior that threatens, intimidates, or demeans an individual. Harassment is unwanted, uninvited, and unwelcome and causes nuisance, alarm, or substantial emotional distress without any legitimate purpose.”vi
Defining Discriminatory Harassment
According to OCR guidance, bullying constitutes discriminatory harassment when it meets the following two conditions: The bullying (a) is aimed at a person or people who are, or are perceived to be, a part of a federally protected class and (b) creates a “hostile environment.”
Federally Protected Classes
Federally protected classes are groups or categories of people who qualify for special protection by a law, policy, or similar authority. The categories of protected classes that are relevant in educational settings include the following:
- Race/Ethnicity
- Color
- National Origin
- Sex
- Disability
- Age
- Religion
- Language
Title IX prohibits discrimination based on sex. It also prohibits sexual harassment, sexual violence, and discrimination based on pregnancy.vii
Title VI prohibits discrimination on the basis of race, color, and national origin. Its protections extend to students who are harassed due to their “actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity.”viii
Section 504 and Title II prohibit discrimination on the basis of disability. OCR and the Office of Special Education and Rehabilitative Services’ guidance notes that bullying of students with disabilities on any basis—not just on the basis of their disability—could deny them the free appropriate public education (FAPE) protected by Section 504 and IDEA.ix
The Age Discrimination Act of 1975 prohibits discrimination based on age. The Act protects students of all ages, not just older students. Its protections do not extend to employment-related age discrimination.x It does not prohibit age distinctions adopted by an “elected general purpose legislative body that—(i) Provides any benefits or assistance to persons based on age; (ii) Establishes criteria for participation in age-related terms; or (iii) Describes intended beneficiaries or target groups in age-related terms.”xi
What Is a Hostile Environment?
To constitute discriminatory harassment, the case of bullying must also create what the OCR terms a “hostile environment.” A hostile environment exists when the misconduct is “sufficiently severe, pervasive, or persistent” to hinder or interfere with a student’s ability to “participate in or benefit from the services, activities, or opportunities offered by a school.”xii
There need not be multiple incidents of bullying for a hostile environment to exist. OCR guidance also states that bullying does not have to include “intent to harm” or “be directed at a specific target.”xiii Beyond noting the federally protected classes, schools and local education agencies (LEAs) must also consider these important parameters when evaluating whether bullying has violated a student’s civil rights.
Local Education Agency and School Responsibilities
In cases of discriminatory bullying, schools and LEA leaders have a responsibility to act under the federal civil rights statutes listed above regardless of whether
- the conduct was already addressed by antibullying policies and procedures,
- the target of the bullying complained,
- the target of the bullying requested that the school or LEA take action, or
- the target of the bullying characterized the harassment as discriminatory.
When Is a School “Put on Notice”?
A school and the district in which it operates are responsible for addressing cases of discriminatory harassment when the school is considered to have been “put on notice.” This is when a “responsible employee” knows, or “in the exercise of responsible care should have known,” about the bullying.xiv OCR guidance provides examples of who might be considered a “responsible employee” but recognizes that it is to some extent contextual.
The guidance emphasizes that the employee who witnesses or comes to know about the discriminatory bullying is not necessarily the same person required to take the federally required steps. Rather, there is an expectation that employees would be required to report cases to the appropriate staff—likely leadership. Furthermore, OCR emphasizes that the “should have known” standard is only relevant if the “school ignores or fails to recognize overt or obvious” discriminatory harassment.xv
Investigating
When a school is put on notice about a possibly discriminatory case of bullying, leaders must take immediate and appropriate steps to investigate what happened. Exact steps are based on context but in general must be “prompt, thorough, and impartial.”xvi
Responding to a Confirmed Case of Discriminatory Harassment
School leaders have three primary responsibilities when investigations confirm discriminatory harassment has occurred:
- Take prompt and effective steps to end the harassment.
- Eliminate any hostile environment and its effects.
- Prevent the harassment from recurring and prevent retaliation.
Disciplining the individual perpetrators is very often insufficient to fulfill these responsibilities.xvii To address the hostile environment and prevent future incidents, school leaders might need to provide training opportunities for the broader campus community. New policies may also be necessary to improve investigation procedures and make reporting easier. Clear and frequent communication about new and existing policies to protect against discriminatory harassment is essential.
To prevent retaliation against the target or witness(es), school personnel must at least
- explain to the target and/or witness how to report any subsequent incidents and
- engage in routine follow-up conversations to assess whether retaliatory misconduct has occurred.
Depending on the case, the school might also be required to provide support services to the harassed student. In general, it is wise practice to provide additional resources for those who have experienced bullying, as it can have detrimental academic and social–emotional impacts.xviii
The following is a list of resources and tools that may prove helpful in preventing and addressing discriminatory bullying.
Resources
Policy Guidance
- Dear Colleague: Relationship Between Bullying & Harassment: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf
- Dear Colleague: Responding to Bullying of Students With Disabilities: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-bullying-201410.pdf
- Frequently Asked Questions About Sex Discrimination (Section on Harassment): https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/sex.html
- Frequently Asked Questions About Race, Color, or National Origin Discrimination (Section on Racial Harassment): https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/race-origin.html
Tools
- Effective Evidence-Based Practices for Preventing and Address Bullying: https://sites.ed.gov/idea/files/bullyingdcl-enclosure-8-20-13.pdf
- Preventing Bullying—A Toolkit of Resources: https://nap.nationalacademies.org/resource/23482/toolkit/introduction/index.html
- Checklist for a Comprehensive Approach to Racial Harassment: https://www2.ed.gov/about/offices/list/ocr/checklist.html
- 2020 CSN Bullying Prevention Resource Guide: https://www.childrenssafetynetwork.org/resources/csn-bullying-prevention-resource-guide
Footnotes
1 Please note that throughout this piece the term “school” refers to school sites and local education agencies. A school site is considered an agent of the local education agency and the district is therefore also considered to hold responsibility. For more information see, Office for Civil Rights. (2023). Education and Title VI [Policy guidance]. U.S. Department of Education. https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html
Citations
i Green, E. L. (2023, January 1). Strife in the schools: Education Dept. logs record number of discrimination complaints. The New York Times. https://www.nytimes.com/2023/01/01/us/politics/education-discrimination.html
ii StopBullying.Gov. (n.d.). Facts about bullying. https://www.stopbullying.gov/resources/facts
iii Vogels, E. A. (2022). Teens and cyberbullying 2022. Pew Research Center. https://www.pewresearch.org/internet/2022/12/15/teens-and-cyberbullying-2022/
iv Ali, R. (2010). [Letter on harassment and bullying]. U.S. Department of Education, Office for Civil Rights. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf; Civil Rights Division. (2021).Types of educational opportunities discrimination. U.S. Department of Justice. https://www.justice.gov/crt/types-educational-opportunities-discrimination
v StopBullying.Gov. (n.d.). What is bullying. https://www.stopbullying.gov/bullying/what-is-bullying
vi Legal Information Institute. (n.d.). Harassment. Cornell Law School. https://www.law.cornell.edu/wex/harassment
vii Office for Civil Rights. (2022). Discrimination based on pregnancy and related conditions: A Resource for students and schools [Fact sheet]. U.S. Department of Education. https://www2.ed.gov/about/offices/list/ocr/docs/ocr-pregnancy-resource.pdf
viii Office for Civil Rights. (2023). Protecting students from discrimination based on shared ancestry or ethnic characteristics [Fact sheet]. U.S. Department of Education. https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-shared-ancestry-202301.pdf
ix Lhamon, C. (2014). [Letter responding to bullying of students with disabilities]. U.S. Department of Education, Office for Civil Rights. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-bullying-201410.pdf; Musgrove, M., & Yudin, M. K. (2013). [Letter on bullying of students with disabilities]. U.S. Department of Education, Office for Civil Rights. https://sites.ed.gov/idea/files/bullyingdcl-8-20-13.pdf
x Office for Civil Rights. (2020). Age discrimination: Frequently asked questions. U.S. Department of Education. https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/age.html
xi Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance, 34 CFR Part 110 (1993). https://www.ecfr.gov/current/title-34/part-110
xii Ali, 2010.
xiii Ali, 2010.
xiv Ali, 2010.
xv Cantu, N. (1997). Sexual harassment guidance: Harassment of student by school employees, other students, or third parties. U.S. Department of Education, Office for Civil Rights.
xvi Ali, 2010.
xvii Ali, 2010.
xviii National Academies of Sciences, Engineering, and Medicine. (2016). Preventing bullying through science, policy, and practice. National Academies Press. https://doi.org/10.17226/23482