Seth Walsh’s School District Settles with Federal Government
July 1, 2011 by Ty Cobb, Senior Legislative Counsel
On October 28, 2010, the Office for Civil Right (OCR) at the Department of Education received a complaint from the mother of Seth Walsh, a 13 year-old gay student who committed suicide weeks earlier. The complaint alleged that, prior to his death, Seth was subject to chronic sex-based harassment by his peers at a California middle school and that, despite having notice of the harassment, the school district failed to respond appropriately. The Civil Rights Division of the Department of Justice (DOJ) joined OCR in the resolution of the complaint.
The findings include a history of the harassment Seth faced from 6th through 8th grade. Seth was verbally harassed with pejorative names; subject to language of a hostile and demeaning sexual nature, including derogatory remarks related to sex between men and crude questions about sexual acts and behavior in which they suggested Seth had engaged; and physically assaulted in the halls and locker room. At the beginning of his 8th grade year, Seth requested to begin “independent study” because his first few weeks of 8th grade were “miserable”. Instead of addressing the environment that was creating such misery for Seth, the school approved the independent study and documented the reason as “sexual orientation ridicule”.
OCR and DOJ found that the school district had both actual knowledge and constructive knowledge that Seth was subject to severe, pervasive, and persistent harassment. Reports of harassment by Seth, his family, and friends were oftentimes ignored and rarely documented. Administrators and teachers turned a blind eye to the clearly inappropriate behavior occurring in the school.
The school district has voluntarily entered into an agreement with the federal government to research, develop, and implement policies that educate students and staff regarding the harmful effects of harassment. In addition, the school district has agreed to educate staff regarding the proper investigation and means of eliminating such harassment and its harmful effects. Furthermore, the school district has agreed to monitor the educational climate at its schools in order to regularly assess and appropriately address the presence and effect of peer-on-peer harassment.
The result of OCR and DOJ’s efforts are commendable but raise disturbing issues. First, while school districts should already be engaged in creating a positive school climate where all students are afforded equal educational opportunities, some are not. Second, as OCR and DOJ make clear in the resolution agreement, they do not have jurisdiction to investigate and make recommendations to prohibit harassment or discrimination based on sexual orientation. Instead, they are limited to addressing such discrimination through the lens of sex discrimination – Title IX prohibits sex discrimination in schools – because there is no federal statute prohibiting harassment or discrimination based on sexual orientation.
The Student Non-Discrimination Act, which is pending in the House and Senate, would prohibit schools from discriminating against students based on sexual orientation and gender identity. This legislation is sponsored by Senator Al Franken (D-MN) in the Senate and Representative Jared Polis (D-CO) in the House.
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