There’s no federal law against bullying or homophobia. So the Department of Education recently decided to invent one. On October 26, it sent a “Dear Colleague” letter to the nation’s school districts arguing that many forms of homophobia and bullying violate federal laws against sexual harassment and discrimination. But those laws only ban discrimination based on sex or race – not sexual orientation, or bullying in general. The letter from the Education Department’s Office for Civil Rights twisted those laws, interpreting them so broadly as to cover not only bullying, but also a vast range of constitutionally protected speech, as well as conduct that the Supreme Court has held does not constitute harassment. In so doing, it menaced academic freedom and student privacy rights, and thumbed its nose at the federal courts.
The letter successfully left the false impression that federal law already bans bullying and anti-gay harassment. For example, a sympathetic news story reported that “the Department of Education issued guidance to all school officials in October 2010, reminding them that federal law requires schools to take action against bullying–including . . . sexual harassment of LGBT students.” The letter was part of a high-profile Obama Administration campaign against bullying, that recently culminated in “a high-visibility conference on bullying prevention March 10, with the president and first lady” and the introduction by Administration allies of “several LGBT-inclusive bills designed to address bullying of students.”
But in reality, there is no federal ban on bullying, and no federal statute prohibiting sexual orientation discrimination. Bills banning anti-gay discrimination, such as the Employment Non-Discrimination Act, have yet to pass Congress. Existing sexual harassment laws generally do not cover harassment aimed at gays based on their sexual orientation, as opposed to their gender – even if such harassment is sexual in nature. As the Supreme Court emphasized in its 1998 Oncale decision, “workplace harassment” is not illegal sexual harassment “merely because the words used have sexual content”; instead, victims “must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination ‘because of'” a victim’s “sex,” such that “members of one sex are” treated worse than “the other sex.” Thus, federal courts have usually dismissed sexual harassment lawsuits brought by gay employees over bullying and foul language, in cases like Higgins v. New Balance (1999).
Harassment is legally defined even more narrowly in schools than workplaces. In the workplace, harassment need only be severe or pervasive enough to create a hostile environment in order to be illegal. A single, severe physical act can occasionally be enough for a lawsuit.