Student-to-student bullying has received widespread media attention within the last year. Often, however, student misconduct is incorrectly labeled bullying when it is sexual (or other protected class) harassment.
Mislabeling the behavior as bullying rather than calling it sexual harassment negates the role that sex plays in the abusive behavior. Bullying is "status blind"-harassment is not. In other words, students are bullied because they may be annoying to a classmate, style their hair differently, not wear the "right" brand of shoes, or come from the "wrong" side of town-their victimization is not based on their sex.
Sexual harassment is a violation of the federal Civil Rights Act Title IX and the Minnesota Human Rights Act. There is no federal law against bullying, and while many states have anti-bullying laws, none are actionable, meaning there is no opportunity to hold a school legally accountable for student bullying when it fails to stop the misconduct, which is often the case. In fact, some states' anti-bullying laws go so far as to say that schools are not liable for bullying.
Using bullying as a label encompassing both sexual harassment and bullying creates confusion over the term, the behavior, prevention strategies, the consequences, the schools' roles and responsibilities, students' rights and which policy schools should use when responding to complaints. The bullying label also fails to acknowledge the liability of the behavior.
The U.S. Department of Education Office for Civil Rights (OCR) was clear in an October 2010 "Dear Colleague Letter" sent to all school districts-bullying and harassment are NOT the same behavior nor are they interchangeable despite how the media, the public and school officials have presented them. It expressed concern about the danger of schools utilizing their anti-bullying policy without determining if the misconduct violates students' civil rights and creates a hostile environment.
When schools fail to investigate the misbehavior and automatically label it as bullying, they fail to consider whether sexual harassment has occurred. When school employees tolerate, ignore, inadequately respond to and even encourage sexual harassment, sometimes by mislabeling it as bullying, they are violating civil rights statues and OCR's regulations.
OCR's letter instructs school administrators to "look beyond simply disciplining perpetrators ... [because] it is often insufficient." Schools must take additional steps to eliminate a hostile environment and prevent recurrence because "discriminatory harassment may demand a different response than would ... bullying." If a school responds to harassment in a piecemeal fashion rather than from a systems perspective, the school is failing in its responsibility to both confront and prevent a hostile education environment, as required by law.
In my work as an expert witness for school sexual harassment lawsuits, I see the consequences when schools focus on bullying and exclude harassment. Students, parents, faculty and staff often do not know what behaviors constitute harassment or OCR's requirements for prevention and intervention. In many schools there is no harassment training; faculty, staff and school administrators are not knowledgeable about Title IX and fail to respond to sexual harassment as required by Title IX and OCR. Often those who are given the task of investigating student complaints have not been trained in how to investigate, resulting in inadequate investigations; poor outcomes for the victims, witnesses and the perpetrators; and an increased risk of liability.
While strong bullying education programs (most of which fail to decrease bullying) and policy are essential, they have overshadowed a much more prevalent form of school misconduct-sexual harassment. Fifty percent of students are sexually harassed (American Association of University Women), for example, and 30 percent (OCR) are bullied. It is critical the media and schools label student misconduct sexual harassment when it occurs-the name educates students about their rights, and should precipitate a strong response from schools, parents and the community to intervene on this violation of students' civil rights.
Susan Strauss lives in Eden Prairie and is the author of "Sexual Harassment and Bullying-A Guide to Keeping Kids Safe and Holding Schools Accountable."