[Congressional Record Volume 147, Number 112 (Friday, August 3, 2001)]
[Senate]
[Pages S8922-S8923]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. WELLSTONE (for himself and Mr. Feingold):
  S. 1357. A bill to provide for an examination of how schools are 
implementing the policy guidance of the Department of Education's 
Office for Civil Rights relating to sexual harassment directed against 
gay, lesbian, bisexual, and transgender students; to the Committee on 
the Judiciary.
  Mr. WELLSTONE. Mr. President, today I am introducing a modest bill 
that can help us take an important step toward providing all of 
America's students physically and psychologically safe school 
environments so they can live up to their full potential as students. I 
appreciate that Senator Feingold is joining me as an original co-
sponsor.
  Unfortunately, there is increasing evidence that schools are anything 
but safe havens for American students who are gay and lesbian, or for 
those who are perceived to be gay or lesbian. Two studies in recent 
months have focused on the issue of school harassment of gay and 
lesbian students. A 7-State study of abuses of gay and lesbian students 
by their peers, conducted by Human Rights Watch, found that these 
students often were not protected by school officials, and that in some 
cases harassment was even condoned by teachers and administrators. That 
report's troubling summation was that, ``Gay youth spend an inordinate 
amount of energy plotting how to get safely to and from school, how to 
avoid the hallways when other students are present so they can avoid 
slurs and shoves, how to cut gym class to escape being beaten up, in 
short, how to become invisible so they will not be verbally and 
physically attacked. Too often, students have little energy left to 
learn.'' A second, more general report on school bullying, conducted by 
the American Association of University Women, AAUW, found that 61 
percent of students had seen fellow students bullied for being gay or 
lesbian, whether or not the students actually were gay or lesbian. Boys 
were the most likely target of such teasing, according to the report.
  Further, the recent Surgeon General's Call to Action to Promote 
Sexual Health and Responsible Behavior notes that ``anti-homosexual 
attitudes are associated with psychological distress for homosexual 
persons and may have a negative impact on mental health, including a 
greater incidence of depression and suicide, lower self-acceptance and 
a greater likelihood of hiding sexual orientation.'' That report finds 
that: ``Averaged over two dozen studies, 80 percent of gay men and 
lesbians have experienced verbal or physical harassment on the basis of 
their orientation, 45 percent had been threatened with violence, and 17 
percent had experienced a physical attack.''
  These studies and numerous journalistic reports describe the verbal, 
physical and psychological abuse that becomes part of two many gay, 
lesbian, bisexual and transgendered students' daily lives.
  We should seek to provide equal learning experiences for gay and 
lesbian students. We should also be concerned about the widespread 
bullying of students with sexual orientation-based epithets in view of 
the growing evidence that students who are bullied are more likely to 
harm their fellow students.
  The Department of Education's ``Sexual Harassment Guidance: 
Harassment of Students by School Employees, Other Students, or Third 
Parties,'' issued in 1997 by the Assistant Secretary for Civil Rights, 
includes in one section the following statement: ``sexual harassment 
directed at gay or lesbian students that is sufficiently serious to 
limit or deny a student's ability to participate in or benefit from the 
school's program constitutes sexual harassment prohibited by Title 
IX.'' This guidance was revised in 2001, clarifying that school 
officials have a responsibility to respond to ``acts of verbal, 
nonverbal, or physical aggression, intimidation, or hostility based on 
sex or sex-stereotyping.''
  In spite of the Department's existing guidance, evidence is clear 
that harassment of gay students remains a serious problem. Even so, the 
AAUW study cited earlier points out that many schools and universities 
have not established grievance procedures or designate any 
representative to address complaints of sex discrimination, including 
harassment.
  To better understand the true level of sexual harassment against gay 
and lesbian students by peers and school officials in schools, as well 
as the degree to which schools are employing the Office of Civil 
Rights, OCR, standard in reacting against such cases of harassment, 
this bill calls for a study by the Commission on Civil Rights. The 
study would seek to answer five questions:
  What is the best estimate of the true level of harassment against gay 
and lesbian students in America's schools and universities, applying 
the OCR standard?
  What is the best estimate of the level of gender-based harassment 
such as that described in the 2001 update of the policy guidance that 
negatively affects the learning environment of gay and lesbian 
students?
  To what degree are school officials and teachers aware of the 
alteration of the guidelines in 1997 that now includes certain 
harassment of gay and lesbian students?
  Are the 1997 guidelines being accurately and aggressively enforced by 
schools?
  What are the Commission's recommendations for an alternation in 
policy or enforcement based on the findings of the study?
  The bill calls for completion of the study within 18 months so that 
Congress can act thoughtfully in working to create safe learning 
environments for all our students, gay and straight alike. It is 
endorsed by a number of the groups focused on promoting learning 
environments that are safe ones for gay students. I hope my colleagues 
will support it also.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

[[Page S8923]]

                                S. 1357

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. FINDINGS AND PURPOSE.

       (a) Findings.--Congress makes the following findings:
       (1) Although title IX of the Education Amendments of 1972 
     (20 U.S.C. 1681 et seq.) does not prohibit discrimination on 
     the basis of sexual orientation, one section of the 
     Department of Education's Office for Civil Rights' 1997 final 
     policy guidance, entitled ``Sexual Harassment Guidance: 
     Harassment of Students by School Employees, Other Students, 
     or Third Parties'' published in the Federal Register on March 
     13, 1997, 62 Fed. Reg. 12034, included a determination that 
     ``sexual harassment directed at gay or lesbian students that 
     is sufficiently serious to limit or deny a student's ability 
     to participate in or benefit from the school's program 
     constitutes sexual harassment prohibited by title IX under 
     the circumstances described in this guidance.''. This 
     language was unchanged in a 2001 update of the policy 
     guidance entitled ``Revised Sexual Harassment Guidance: 
     Harassment of Students by School Employees, Other Students, 
     or Third Parties'' for which a notice of availability was 
     published in the Federal Register on January 19, 2001, 66 
     Fed. Reg. 5512.
       (2) That section of the 2001 ``Revised Sexual Harassment 
     Guidance: Harassment of Students by School Employees, Other 
     Students, or Third Parties'' went on to state: ``Though 
     beyond the scope of this guidance, gender-based harassment, 
     which may include acts of verbal, nonverbal, or physical 
     aggression, intimidation, or hostility based on sex or sex-
     stereotyping, but not involving conduct of a sexual nature, 
     is also a form of sex discrimination to which a school must 
     respond, if it rises to the level that denies or limits a 
     student's ability to participate in or benefit from the 
     educational program. . . . A school must respond to such 
     harassment in accordance with the standards and procedures 
     described in this guidance.''.
       (3) There is evidence that brings into question the degree 
     to which the policy guidance on sexual harassment against 
     gay, lesbian, bisexual, and transgender students is being 
     implemented. For example, a 7-State study by Human Rights 
     Watch of the abuses suffered by gay, lesbian, bisexual, and 
     transgender students at the hands of their peers, published 
     in ``Hatred in the Hallways: Violence and Discrimination 
     Against Lesbian, Gay, Bisexual, and Transgender Students in 
     U.S. Schools'' found that such students were often the 
     victims of abuses.
       (4) A 2000 study by the American Association of University 
     Women focused on implementation of title IX of the Education 
     Amendments of 1972 more generally, and the findings of that 
     study, published in ``A License for Bias: Sex Discrimination, 
     Schools, and Title IX'', included a finding that many schools 
     and universities have not established procedures for handling 
     title IX-based grievances.
       (5) The 2001 report of the Surgeon General, entitled 
     ``Surgeon General's Call to Action to Promote Sexual Health 
     and Responsible Sexual Behavior'' notes that ``antihomosexual 
     attitudes are associated with psychological distress for 
     homosexual persons and may have a negative impact on mental 
     health, including a greater incidence of depression and 
     suicide, lower self-acceptance and a greater likelihood of 
     hiding sexual orientation.''. It goes on to report: 
     ``Averaged over two dozen studies, 80 percent of gay men and 
     lesbians had experienced verbal or physical harassment on the 
     basis of their orientation, 45 percent had been threatened 
     with violence, and 17 percent had experienced a physical 
     attack.''.
       (b) Purpose.--The purpose of this Act is to provide for an 
     examination of how secondary schools are implementing the 
     policy guidance of the Department of Education's Office for 
     Civil Rights related to sexual harassment directed against 
     gay, lesbian, bisexual, and transgender students.

     SEC. 2. STUDY OF HOW EDUCATIONAL INSTITUTIONS ARE 
                   IMPLEMENTING THE POLICY GUIDANCE RELATING TO 
                   SEXUAL HARASSMENT.

       (a) In General.--The United States Commission on Civil 
     Rights (hereafter in this Act referred to as the 
     ``Commission'') shall conduct a study of the 1997 final 
     policy guidance entitled ``Sexual Harassment Guidance: 
     Harassment of Students by School Employees, Other Students, 
     or Third Parties'' published in the Federal Register on March 
     13, 1997, 62 Fed. Reg. 12034, and the application of such 
     policy guidance.
       (b) Scope.--
       (1) Nationwide.--The study shall be conducted nationwide.
       (2) Elements of study.--The study shall examine, at a 
     minimum, with regard to secondary schools--
       (A) the extent to which there exists sexual harassment 
     against gay and lesbian students in secondary schools, using 
     the applicable standards in the policy guidance of the Office 
     for Civil Rights described in subsection (a);
       (B) the extent to which there exists gender-based 
     harassment that negatively affects the learning environment 
     of gay, lesbian, bisexual, and transgender students in 
     secondary schools, applying the definition of such gender-
     based harassment contained in the 2001 update of the policy 
     guidance entitled ``Revised Sexual Harassment Guidance: 
     Harassment of Students by School Employees, Other Students, 
     or Third Parties'' for which a notice of availability was 
     published in the Federal Register on January 19, 2001, 66 
     Fed. Reg. 5512;
       (C) the level of awareness by school officials and students 
     of the policy guidance described in subsection (a); and
       (D) the level of implementation of such policy guidance.
       (c) Definition.--In this section, the term ``secondary 
     school'' has the meaning given the term in section 14101 of 
     the Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     8801).

     SEC. 3. REPORTING OF FINDINGS.

       (a) In General.--Not later than 18 months after the date of 
     enactment of this Act, the Commission shall transmit to 
     Congress and to the Secretary of Education--
       (1) a report of the Commission's findings under section 2; 
     and
       (2) any policy recommendations developed by the Commission 
     based upon the study carried out under section 2.
       (b) Dissemination.--The report and recommendations shall be 
     disseminated, in a manner that is easily understandable, to 
     the public by means that include the Internet.

     SEC. 4. COOPERATION OF FEDERAL AGENCIES.

       (a) In General.--The head of each Federal department or 
     agency shall cooperate in all respects with the Commission 
     with respect to the study under section 2.
       (b) Information.--The head of each Federal department or 
     agency shall provide to the Commission, to the extent 
     permitted by law, such data, reports, and documents 
     concerning the subject matter of such study as the Commission 
     may request.
       (c) Definition.--In this section, the term ``Federal 
     department or agency'' means any agency as defined in section 
     551 of title 5, United States Code.

     SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--There are authorized to be appropriated to 
     carry out this Act, such sums as may be necessary for fiscal 
     year 2002.
       (b) Availability.--Any amount appropriated under the 
     authority of subsection (a) shall remain available until 
     expended.
                                 ______