The Office of Civil Rights (“OCR”) recently responded to concerns of the National School Boards Association (“NSBA”) regarding bullying guidance issued by OCR in October 2010. In its response, OCR stands by its October 2010 “Dear Colleague” letter, identifying that, rather than inviting “misguided litigation,” as claimed by the NSBA, the letter “should help to insulate schools from liability, not increase it.”
Through its response, OCR makes clear that the standards it uses in evaluating whether unlawful harassment has occurred within a school are different from the standards employed by a court of law when determining whether monetary damages should be imposed against a school district. While a school district must have “actual knowledge” of unlawful harassment to be liable for monetary damages, OCR asks whether a school district “knows or reasonably should have known” about the harassment when assessing whether corrective action may be necessary. OCR continues, in its letter, by responding to each of the NSBA’s concerns regarding the initial bullying guidance.