OCR's letter provided hypothetical examples to illustrate the type of harassment that would warrants protection under Title IX (as well as other examples about race, ethnicity, and disability). One example seemed loosely based on the recent bullying of a Massachusetts teenager that resulted in her suicide:
Shortly after enrolling at a new high school, a female student had a brief romance with another student. After the couple broke up, other male and female students began routinely calling the new student sexually charged names, spreading rumors about her sexual behavior, and sending her threatening text messages and e‐mails. One of the student’s teachers and an athletic coach witnessed the name calling and heard the rumors, but identified it as “hazing” that new students often experience. They also noticed the new student’s anxiety and declining class participation. The school attempted to resolve the situation by requiring the student to work the problem out directly with her harassers.OCR used this example to make several points: one, that harassment based on a student's sexual behavior is covered by Title IX, two, that harassment may take the form of text messages and rumor-spreading, and three, that school officials did not respond properly by requiring the students to work it out. Rather, the school should have investigated the situation and taken preliminary steps to separate the accuser from the harassers.
Another example, involving bullying of LGBT students, also seemed ripped from recent headlines:
Over the course of a school year, a gay high school student was called names (including anti‐gay slurs and sexual comments) both to his face and on social networking sites, physically assaulted, threatened, and ridiculed because he did not conform to stereotypical notions of how teenage boys are expected to act and appear (e.g., effeminate mannerisms, nontraditional choice of extracurricular activities, apparel, and personal grooming choices). As a result, the student dropped out of the drama club to avoid further harassment. Based on the student’s self‐identification as gay and the homophobic nature of some of the harassment, the school did not recognize that the misconduct included discrimination covered by Title IX. The school responded to complaints from the student by reprimanding the perpetrators consistent with its anti‐bullying policy. The reprimands of the identified perpetrators stopped the harassment by those individuals. It did not, however, stop others from undertaking similar harassment of the student.With this hypothetical, OCR clarified that while Title IX does not cover discrimination on the basis of sexual orientation, that does not absolve school districts from their obligation to address sexual orientation-based harassment that "overlaps" with sex-based harassment. Specifically, harassment that targets a student for failing to conform to sex stereotypes, such as the teasing in this hypothetical, is sex discrimination that warrants school officials' response. According to OCR's analysis of this hypothetical, the school officials should have done more than reprimand identified perpetrators. Additional steps include: notifying the victim's teachers and otherwise increasing efforts to monitor the situation to prevent ongoing harassment, making a clear statement that such conduct violates the school's policy on harassment, conducting school-wide education on civil rights and tolerance as they relate to gender issues, and providing counseling or other appropriate resources to affected students.
In the end, OCR's guidance letter does not tell schools officials anything they should not already know. After all, all of these responsibilities derive from existing agency and judicial interpretations of Title IX. But judging by the number of sexual harassment cases we blog about here, the word hasn't been getting out and hasn't been sinking in. So this letter was necessary. And hopefully, it will provide school officials with the impetus and the means to take harassment seriously.