NSBA Requests Clarification of OCR's October 26, 2010 Dear colleague Letter 

 In response to the United States Department of Education ("DOE"), Office of Civil Rights'("OCR") October 26, 2010 Dear Colleague Letter ("DCL"), the National School Board Association's ("NSBA") General Counsel, Francisco Negrón, Jr. requested clarification in a letter dated December 7, 2010 sent to Charlie Rose, General Counsel of the DOE.  In his letter, Negrón expressed concerns regarding the DCL, which issued guidance to schools on bullying and harassment related to federal civil rights laws.   Negrón expressed particular concern in the expansive reading of the law in the DCL in that it may "invite misguided litigation that needlessly drains precious school resources and creates adversarial climates that distract schools from their educational mission." In his letter, Negrón wrote "our hope is that this conversation will lead to clarification of the Department's position as expressed in the DCL so that with a clear understanding of the requirements of the law, school districts can develop and implement the best policies and procedures to keep students safe."  In his letter, Negrón illustrated that the proposed standards in the DCL are problematic in numerous ways: it greatly expands the standard of liability of peer harassment as defined in the Supreme Court Case Davis v. Monroe County Board of Education, 526 U.S. 629 (1999);  its requirement of "publically labeling" an incident as harassment may violate the Family Educational Rights and Privacy Act ("FERPA"); the letter cursorily considers a student's protection to free speech under the First Amendment; and it may place undue responsibility on schools to make "nuanced legal distinctions" that will create a climate ripe for federal law suits against schools.  Negrón pointed to several inconsistencies and conflicts with the DCL and established laws.  NSBA expects a formal response to be issued by OCR.

www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf

www.nsba.org/secondarymenu/COSA/Updates/NSBA-letter-to-Ed-12-07-10