Critical Issue Brief October PDF

October 2011 Addressing the Gendered Dimensions of Harassment and Bullying: What domestic and sexual violence advocates need to know by Nan D. Stein, Ed.D. & Kelly A. Mennemeier, B.A. This paper first
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October 2011 Addressing the Gendered Dimensions of Harassment and Bullying: What domestic and sexual violence advocates need to know by Nan D. Stein, Ed.D. & Kelly A. Mennemeier, B.A. This paper first introduces and discusses a recent policy memo from the U.S. Department of Education that clarifies the distinctions between bullying and harassment and the priorities and responsibilities of school districts, and then outlines the differences between sexual harassment and bullying, explores the unintended consequences of ignoring the gendered dimensions of bullying and harassment in K-12 schools, and suggests helpful strategies for advocates collaborating with school personnel and students. New Policy Guidance issued by the Office for Civil Rights, U.S. Department of Education On October 26, 2010, the Office for Civil Rights (OCR) of the U.S. Department of Education issued a Dear Colleague letter to school districts across the country that provided guidance about critical distinctions between two important issues schools face: bullying and harassment. As the enforcement arm of the U.S. Department of Education, OCR uses such Dear Colleague letters to inform school personnel about new interpretations, reinterpretations, or clarifications of the education laws over which OCR has jurisdiction. Schools are then required to adjust their policies to adhere to the specifications of the law. OCR s October 2010 letter clarified that peer-topeer harassment is not the same as bullying. As this paper discusses, they are two very separate terms and concepts that have unfortunately become fused and conflated in the minds and behaviors of many school officials, the public, and the press (Ali, 2010). The terms harassment and bullying are separate and not equal. When peer harassment is based on race, color, national origin, sex, or disability, it violates the civil rights laws that OCR enforces and that schools are responsible to understand and uphold. Unlike discriminatory harassment, antibullying laws and policies vary from state to state and do not rise to the level of being violations of federal law. As the OCR guidance makes clear, School personnel who understand their legal obligations to A joint publication of the National Resource Center on Domestic Violence & National Sexual Violence Resource Center. address harassment under these laws are in the best position to prevent it from occurring and to respond appropriately when it does (p. 1). Written in unambiguous language, the OCR letter stated: The label (used by the School District) used to describe an incident (e.g., bullying, hazing, teasing) does not determine how a school is obligated to respond. Rather, the nature of the conduct itself must be assessed for civil rights implications. So, for example, if the abusive behavior is on the basis of race, color, national origin, sex, or disability, and creates a hostile environment, a school is obligated to respond in accordance with the applicable federal civil rights statutes and regulations enforced by OCR. (p.3) OCR also stated that there is a danger of schools limiting their responses to a specific application of an anti-bullying disciplinary policy without considering whether the behaviors in question violate a victimized student s federal civil rights. The guidance noted the responsibilities of the school, regardless of the potential application of any anti-bullying policy, and regardless of whether the student makes a complaint, asks the school to take action or identifies the harassment as a form of discrimination. School administrators are warned to look beyond simply disciplining the perpetrators as such disciplinary actions are often insufficient (pp. 2-3). Rather, the school s responsibility is to eliminate the hostile environment created by the harassment, address its effects, and take steps to ensure that harassment does not recur. In other words, the school cannot reduce or minimize egregious conduct by only applying the schools or states anti-bullying policy if there might be federal civil rights violations occurring. Potential violations of federal civil rights laws take precedence over anti-bullying laws and bullying prevention efforts. While the OCR memo addresses harassment based on race, color, national origin, sex, or disability as the basis for civil rights violations, this issue brief focuses on the gendered dimensions of harassment and bullying in school settings. Distinctions between sexual harassment and bullying Definition of sexual harassment in schools Sexual harassment is a form of sex discrimination and is illegal under federal law Title IX, which was passed by the U.S. Congress in Decisions in U.S. federal courts and by the Office for Civil Rights of the U.S. Department of Education have amplified the definition of sexual harassment: Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment of a student that is sufficiently severe, persistent or pervasive to deny or limit the student s ability to participate in or to receive benefits, services, or opportunities in the school s program is a form of sex discrimination prohibited by Title IX. (Title IX, Sec.II of OCR s 2001 Sexual Harassment Guidance). Definition of bullying: No agreement Unlike sexual harassment, definitions of bullying as codified in state laws vary state by state. Nor is there a common definition among the researchers who undertake studies on bullying (sometimes called relational aggression or peer violence ). There are at least three key elements over which there is disagreement among the various definitions of bullying: (1) some laws/researchers say that bullying has to involve repeated behaviors; others say it can be a one-time occurrence; (2) some laws/ researchers say that there has to be an imbalance of power between the student being bullied and the one bullying but power is never defined (is it based on relative physical size? relative popularity? Addressing the Gendered Dimensions of Harassment and Bullying (October 2011) Page 2 of 17 the relative age of those involved? the economic status of their parents? how long the family has lived in the town?). Not only is the source of power never clarified, laws and researchers provide no guidance on who can decide what qualifies as an imbalance of power or how one might make this decision what if adults failed to recognize the imbalance of power that young people claimed to exist? Finally, (3) some laws/researchers say that the behaviors have to be severe but do not explain how to decide what behaviors constitute severe. What is considered severe to one student might not be severe to another, and the same could be said for adults judgments of severity (Stein, 2010). The multiple disagreements over these questions have made for vague, arbitrary and inconsistent definitions of bullying. Under the prevailing definitions of bullying, almost anything has the potential to be called bullying, from best friends saving a seat in the cafeteria for each other to behaviors perpetrated on a child that constitute criminal assault or hate crimes (Stein, 2003; Brown, Chesney-Lind, & Stein, 2007). Everything and nothing seems to come under the umbrella of bullying. Such vague and unclear definitions are fodder for unwarranted disciplinary actions against students by school administrators. Already lawsuits in California and Florida have challenged state anti-bullying laws for abrogation of the First Amendment rights of disciplined students (Gentile, 2010; Kim, 2009). Recently, the term sexual bullying has surfaced, spearheaded by a few academics from the field of nursing and public health who are concerned with the continuum of violence between bullying, sexual harassment and dating violence (Fredland, 2008). Sexual bullying is defined as early-stage sexual harassment with the potential to escalate to more severe forms of abuse. Unfortunately, this term has further muddled the definitions of and distinctions between sexual harassment and bullying. Though the term sexual bullying was first used by Stein (the author of this paper) and Sjostrom in their curriculum Flirting or Hurting (p.3), published by the National Education Association in 1994, Fredland promotes the term as one more accepted by young people than the term sexual harassment. However, the use of the term sexual bullying may mask the seriousness of discriminatory sexual harassment that is occurring in schools (Gruber & Fineran, 2008; Stein & Breines, 2009). Learning about sexual harassment from lawsuits By looking at several lawsuits, we can see the many ways in which bullying and harassment have been conflated. The examples referenced in the call out boxes of this paper are not rare but rather very typical. They show the ways in which sexual harassment behaviors have been minimized or ignored by school personnel. Although the Iowa and Illinois cases did not result in federal court decisions (they were settled out of court), they illustrate the ways in which sexual harassment conduct is normalized and accepted yet simultaneously dismissed by school personnel. School staff minimize their legal responsibility to targeted students when they call sexual harassment roughhousing or bullying because such language reduces these behaviors to the level of minor, mutual, and annoying conduct between students. Moreover, the failure of school personnel to address sexual harassment contributes to the creation of an unsafe school environment that perpetuates sex-based discrimination by lending harassment the implicit permission of adults. In an Iowa middle school around 2005, three seventh grade girls were repeatedly zapped in their breasts with a battery operated device by male classmates, who also tittie twisted the girls nipples with their fingers. The girls became black and blue and sore. The school administrators characterized the boys conduct as roughhousing, bullying and mutual horseplay, not sexual harassment (Bruning v. Carroll (Iowa) Community School District). Addressing the Gendered Dimensions of Harassment and Bullying (October 2011) Page 3 of 17 In Georgia in the mid-1990s, LaShonda Davis, then a fifth grade student, was touched and grabbed by a male classmate. The boy, only known by his initials, G.F., repeatedly tried to touch LaShonda s breasts and genital area, rubbed against her in a sexual manner, constantly asked her for sex, and, in one instance, put a plastic doorstop in his pants to simulate an erection (Brake, 1999). Besides telling G.F. to stop, she told her teachers, and along with her parents asked that her seat be moved away from G.F. But her teachers and the school officials did nothing, not even to separate the two students. G.F. s behaviors had both psychological and academic consequences for LaShonda. After several months of this harassment, LaShonda s grades fell and she wrote a suicide note that her parents found. Her parents filed a criminal complaint against G.F. as well as a federal civil rights lawsuit against the school district for permitting a sexually hostile environment to exist. In the criminal action, the boy pled guilty to sexual battery (Davis V. Monroe County Board of Education; Brake, 1999; Stein, 1999). LaShonda s lawsuit worked its way through every level of the U.S. federal courts over a five year period and in January 1999 was heard by the U.S. Supreme Court. The decision was released on May 24, 1999, and as with all Supreme Court cases, applies to the whole country -- to each and every educational institution that receives any federal financial support or assistance. In a five-to-four ruling, the U.S. Supreme Court stated that schools are liable for student-tostudent sexual harassment if the school officials knew about the sexual harassment and failed to take action (Davis v. Monroe County). Consider for a moment if G.F. s behaviors toward LaShonda had been framed as bullying rather than sexual harassment this case would never have been allowed in a federal court, let alone in the U.S. Supreme Court. Once LaShonda told school personnel about G.F s behaviors, it was incumbent upon them to prevent and eliminate the hostile environment that his conduct created. Her right to receive an equal educational opportunity was denied by his behavior, which clearly created an environment that was not conducive to learning and safety. To have viewed G.F. s conduct as bullying (or roughhousing or any other term) would have relegated her case to adjudication in the principal s office, a place where she had not received justice or redress prior to filing a federal lawsuit against the school district and a criminal complaint against G.F. personally. Research on the overlap between bullying and sexual harassment/violence As part of a three year study funded by the CDC, Professor Dorothy Espelage found that bullying perpetration was only slightly correlated with sexual harassment when she surveyed 1,381 middle school students. While these results might be specific to the Midwest, where the study was conducted, for any given student in the study there was very little overlap between bullying perpetration and the perpetration of sexual violence, including sexual harassment. In other words, bullies and perpetrators of sexual violence are different students in middle school. In Illinois, a 12 year-old boy was repeatedly punched in the scrotum by his basketball teammates. Despite the fact that the young man required more than one surgery, his school administrators referred to this behavior as roughhousing and horseplay, his basketball coach said that the boy ought to stick up for himself, and the school principal, though informed of the sac stabbing, chose to do nothing. Prior to filing a lawsuit, his parents met with the basketball coach, the team and the principal, and filed a police report against the six male students/attackers. The parents finally were forced to withdraw their son from this school, and in August 2007, filed claims in federal district court, alleging sexual harassment and retaliation (Doe v. Brimfield Grade School & School District #309; District Court Tackles, 2008). Addressing the Gendered Dimensions of Harassment and Bullying (October 2011) Page 4 of 17 However, the key link between bullying and sexual harassment/violence seems to be homophobic language and harassment. Other factors, such as anger, family violence, sibling aggression, delinquent behavior, and to a lesser extent alcohol and drug use, are shared risk factors of both bullying and sexual harassment/violence, though these variables do a somewhat better job of predicting bullying than they do of predicting sexual violence perpetration. Unique predictors of sexual harassment/violence perpetration include pornography consumption and dismissive attitudes toward sexual harassment (Espelage, Stein, Rose, & Elliot, 2009). The Gay, Lesbian and Straight Education Network (GLSEN) conducted a national survey in 2005 of over 3,400 students aged and over 1,000 secondary school teachers that examined students and teachers attitudes and feelings about bullying and harassment. The findings indicated that the most common reason students were bullied or harassed was their appearance, with the second being they were or were thought to be gay, lesbian or bisexual (GLSEN, 2005). Researchers suggest bullying perpetration is associated with homophobic teasing during early adolescence, which is in turn likely to be predictive of sexual harassment perpetration over time (Espelage, Basile & Hamburger, in press). The authors note that, bullying in the form of namecalling and rumor spreading has been associated with homophobic teasing, which creates a climate in which sexual harassment perpetration is likely to develop as boys and girls attempt to counter the homophobic teasing by sexually harassing others (Espelage, Basile, & Hamburger, in press, p. 3). Prevention programs designed to end bullying appear to neglect homophobic bullying, despite the potential links to sexual violence and the overwhelming prevalence of homophobic harassment in middle and high schools throughout the country (GLSEN, 2009). Stein has pointed out in her analysis of 67 antibullying programs aimed at middle and high school students that these programs almost universally fail to discuss issues of sexual orientation, homophobia, sexual harassment, and sexual violence (Stein & Breines, 2009). Out of 67 curriculum materials for middle and high school audiences, only 19 mention or define behaviors that constitute sexual harassment. Out of the 19, 12 explicitly mention sexual harassment, though most curricula inaccurately frame sexual harassment as a subset of bullying; five other curriculum products refer to behaviors that constitute sexual harassment but the curriculum authors instead implant other terms to cover what is legally sexual harassment; and the remaining two curricula never use the term sexual harassment but do refer to behaviors that legally are sexual harassment. Strikingly, there is very little agreement among these curricula products on the definition of sexual harassment, with each curriculum largely inventing its own. As indicated earlier in this brief, sexual harassment has been defined by the U.S. Supreme Court in the Davis case (1999) as well as repeatedly by the U.S Department of Education since the mid- 1990s; its definition is not open to invention (Stein & Breines, 2009). Given that much of the bullying that occurs in middle school is related to sexual orientation, bullying prevention programs that do not address sexual orientation will not be effective in reducing bullying among middle school students. By the same token, schools that continue to implement bullying prevention programs that do not explicitly address sexual harassment will not be effective in curtailing sexual harassment perpetration (Espelage, Basile & Hamburger, in press). Research conducted in Australia demonstrate that despite instruction on bullying in K-8 schools, by the time students landed in high school, they engaged in abundant sexual harassment behaviors (Australia Broadcasting Corporation, 2004; Rigby & Johnson, 2004; Stein, 2007). Talking about bullying is not an inoculation against sexual harassment/violence and likewise, talking about bullying without talking about homophobia will not prevent homophobic conduct which may be the pathway to sexual harassment/violence conduct. Addressing the Gendered Dimensions of Harassment and Bullying (October 2011) Page 5 of 17 There have been only a few examples of bullying curricula that include discussions of homophobia and harassment of lesbian, gay, bisexual, or transgender students (Poteat, Aragon, Espelage, & Koenig, 2009; Poteat & Espelage, 2005; Poteat & Espelage, 2007; Poteat, Espelage, & Green, 2007; Poteat, Espelage, & Koenig 2009). Few curricula address homophobia, and those that do are often relegated to a set of one week activities such as No Name Calling Week, spearheaded by GLSEN (2010), or activities meant for elementary-aged children, such as Welcoming Schools from the Human Rights Campaign (2010). However, in New York City schools, a week long program, Respect for All, seems to be showing promise (New York City Department of Education, 2011). Unfortunately, Respect for All is a framework that is limited to helping school administrators and guidance counselors recognize homophobic harassment and not a curriculum to use with teachers and their students (Greytak & Kosciw, 2010). Unintended consequences of obscuring or minimizing gender violence/harassment in schools State anti-bullying Laws By the fall of 2010, 43 states had passed anti-bullying laws, often with voluntary provisions and little or no oversight by state agencies. Some governors have resisted anti-bul
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