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OCR Chief and DOJ Section Head Answer Tough Questions From School Attorneys At National Law Seminar

U.S. Department of Education, Office of Civil Rights (OCR) Chief Catherine Lhamon along with U.S. Department of Justice (DOJ)Education Opportunities Section head Anurima Bhargava attended the April 2014 School Law Seminar held in New Orleans and fielded questions from attending school attorneys who sought clarification of the Departments’ position related to harassment standards for student on student harassment and asked questions about the Departments’ “Dear Colleague Letters” (DCL) on topics ranging from transgender students, athletics and extracurricular activities for students with disabilities and bullying and harassment to name some.

Here are a few highlights from the discourse:

  • Transgender Students: When questioned about a district’s obligation to honor requests by a transgender student to use the restroom of the gender with which the student identifies, the unequivocal response by OCR/DOJ was that districts must grant such requests or be subject to claims of discrimination, and that an offer for the student to use a private restroom which is not otherwise provided to all students would not suffice to meet legal obligations.
  • Extracurricular Activities and Students with Disabilities: In an effort to flush out OCR’s recent guidance on students with disabilities and extracurricular athletics, the panel was questioned whether a district is required to provide one-to-one standby aids for disabled students wishing to participate in open gym activities. A district’s provision of one-to-one aids on a planned scheduled basis, rather than on a daily basis and was deemed by the Chief as reasonable and not likely to result in an OCR investigation.
  • Standards for Finding of Harassment: OCR/DOJ both reiterated that the standard set out in OCR’s October 2010 Dear Colleague Letter on harassment is an “enforcement standard,” rather than one for “money damages”.  This often repeated response raised the collective ire of the attending attorneys who believe that recent actions by OCR/DOJ evidence a desire to change the current harassment standard set forth in the Supreme Court Case of Davis v. Monroe County Board of Education (119 S.Ct. 1661) to one that more easily allows for a finding of liability by schools for student on student harassment and assignment of money damages against schools. The Davis Court in its decision ruled that school districts would be liable under federal law Title IX only if they were “deliberately indifferent” to information that they were aware of and that the behavior must be severe, pervasive, and objectively offensive. The Council of School Board Attorneys has publicly challenged OCR as attempting to create a new standard for student on student harassment. In OCR’s DCL letter it states that harassment creates a hostile environment 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 and further where it states that a school is responsible for addressing harassment incidents about which it knows or reasonably should have known. The Davis standard is for conduct for which the school has actual knowledge only.