Preventing Bullying & Harassment

Bullying and the Law

Title VI of the Civil Rights Act of 1864 (prohibiting discrimination on the basis of race, color, or national origin)
Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA (prohibiting disability discrimination).
Title IX – Prohibiting discrimination on the basis of sex and/or gender.
42 U.S.C. Section 1983 (Equal Protection Clause of the 14th Amendment, Substantive Due Process Clause of the 14th Amendment).

Who oversees this?

The Office of Civil Rights (OCR) of the United States Department of Education has enforcement authority over Section 504, Title VI and Title IX.

Federal requirements

Federal Regulations require all recipients of Federal financial assistance to:

Disseminate a notice of nondiscrimination;
Designate at least one employee to coordinate its efforts to comply with and carry out its Title responsibilities;
Adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee discrimination complaints.

Who is Protected under Sections 504, Title VI, and Title IX?

When Must a District Take Action?

When a district “knows or reasonably should know” about student-on-student harassment that creates a hostile environment, the school must take immediate action to eliminate the harassment.
A law enforcement investigation does not relieve the school of its independent obligation under Section 504, Title VI or Title IX.

Where May the Conduct Occur Triggering a Duty to Take Action?

Regardless of where the incident occurred, whether on school grounds or in connection with a school activity or not, the obligation to respond to student-on-student harassment may be triggered “if a student files a complaint with the school” or in any instance where the school knows or reasonably should know about the harassment.

(Note: Different than Davis standard for financial liability which requires actual knowledge and deliberate indifference)

Initiating an Investigation

If the complainant, or parents, request that a complaint not be pursued, the school should still take all reasonable steps to continue with the investigation consistent with that request for confidentiality. Refer the incident(s) to the appropriate compliance officer (See list on District website) who will weigh the request for confidentiality against:

Seriousness of the alleged offense;
The complainant’s age;
Prior complaints against this alleged perpetrator;
The alleged harasser’s rights to “education records” under FERPA if the victim’s information is maintained within the school.

Notice of Non-Discrimination

States that the district does not discriminate on the basis of sex, race, gender or disabilities in its educational programs and activities;
Defines sexual violence and sexual harassment, disability and race based discrimination;
Notifies readers where inquiries should be directed;
Provides examples of the kind of conduct prohibited under Section 504, Title VI and Title IX;
Is widely distributed to parents, students, and employees;
OCR recommends that it be posted on the school’s website and also published in the school.

Definitions of “Sexual Violence” and “Sexual Harassment”

Sexual Violence: “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability.”

Sexual Harassment: “unwelcome conduct of a sexual nature. It includes sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature.”

“When a student harasses another student, the harassing conduct creates a hostile working environment if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.”

Note: The more serious the conduct, the less need there is to show repetitive conduct.

Section 504 and Title Coordinators

Grievance Procedures

Every recipient of Federal funding must adopt and publish grievance procedures providing for the prompt and equitable resolution of sex discrimination complaints. They should:

Provide for prompt and equitable resolution of harassment complaints.
Tell students/parents/employees where to file complaints;
Designate time frames for disposition (Based on OCR experience, a typical investigation takes 60 calendar days following receipt of the complaint.)
Provide adequate and impartial investigations
Give notice to all parties of the outcome; (FERPA permits that a school may disclose to the victim the sanction, if any, imposed, so long as it directly relates to the victim.)
“A school may not absolve itself of its Section 504, Title VI or Title IX obligations to investigate and resolve complaints of harassment complaints by delegating … the responsibility to … school resource officers or “contract” law enforcement officers.” See 34 C.F.R. § 106.4
A school should not wait for a criminal investigation to be concluded before investigating itself.
The grievance procedures involve voluntary, informal mechanisms, such as mediation. In a case of sexual assault, mediation is never appropriate.
They should not allow a student who complains of harassment to be required to work out the problem directly with the alleged perpetrator.
Schools should use a “preponderance of the evidence” standard. (i.e. it is more likely than not that improper harassment or violence occurred.) The clear and convincing standard is a higher standard of proof, and using that standard does not comport with federal law.
Every opportunity given to the perpetrator should be given to the victim. (i.e. The perpetrator should not be given a pre-hearing conference to tell his/her story unless the victim has the opportunity as well. The perpetrator should not review the victim’s statement unless the victim can review the perpetrator’s statement.)

Prevention and Enforcement: Best Practices

Create comprehensive education and training programs and victim resources for administrators, teachers, staff and students to help hem recognize warning signs of harassment, understand that it will not be tolerated, and familiarize them with the procedure for filing complaints.
- Incorporate these training programs into:
- Orientation programs for new students, faculty, and staff
Training for student athletes and coaches
Develop specific discrimination and sexual violence materials which include school policies, rules, and resources for students, faculty, coaches and administrators.
If a school determines that prohibited harassment occurred, it must take immediate action to prevent its recurrence and address its effects. Appropriate actions may include:
- Disciplinary Action and/or Counseling for the Alleged Harasser
- Counseling for the Complainant
- Changes to the School’s Overall Services and Policies
- Providing an “escort” to the complainant between classes and activities
- Separating the complainant and perpetrator in class or move them to separate schools within the district
- Providing counseling and medical services
  Providing academic supports (such as tutoring)
  Arranging for the complainant to “re-take” a course without penalty, where appropriate.
  Reviewing any disciplinary actions taken against the complainant and/or the perpetrator
When a school receives notice of prohibited harassment or violence it should:
- Notify the complainant of his/her option to avoid contact with the perpetrator (Allow students to change academic or living situations)
- When taking steps to separate the complainant and the alleged perpetrator pending an investigation, take care to minimize the burden on the complainant.
- A school must have policies in place to protect the complainant or third parties from retaliation
According to OCR, relevant factors in determining harassment include:
- Age of victims;
- Frequency, duration, repetition, location, severity and scope;
- Nature and context of incident(s);
- Whether others joined to perpetrate it;
- Direction at more than one person;
- Creation of offensive, hostile or abusive atmosphere at the school or school related locale.

Liability

School districts may violate these civil rights statutes when peer harassment based on race, color, national origin, sex or disability creates a hostile environment and is either encouraged, tolerated, not adequately addressed or ignored by school employees.

Bullying/Harassment Actionable Pursuant to the IDEA

Students with IDEA disabilities have the “right to be secure” in school. Un-remedied bullying may constitute the denial of a free appropriate public education (FAPE) and parents may secure a tuition reimbursement award. The lower court provided a four-2 part test to determine whether bullying resulted in the denial of a FAPE:

Was the student a victim of bullying;
Did the school have notice of substantial bullying of the student;
was the school “deliberately indifferent” to the bullying, or did it fail to take reasonable steps to prevent the bullying; and
did the bullying “substantially restrict” the student’s “educational opportunities”?

T.K. v. N.Y.C. Dep’t of Educ. 779 F. Supp. 2d 289, 316, 318 (E.D.N.Y. 2011). Affirmed (2nd Cir. 1/2015)

Severity of Conduct

New York State Law: Dignity for All Students Act

Purpose

foster civility in public schools;
prevent and prohibit discriminating and harassing conduct (bullying) on school property and at school functions
establish additional “protected classes,” and designate many forms of bullying as unlawful discrimination.

Facts

Signed into law by Governor Patterson on September 8, 2010.
The Dignity for all Students Act (“DASA”), as amended effective July 1, 2013, prohibits harassment or bullying, as well as to prohibit discrimination based upon a student’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (including gender identity and expression) or sex, of a student by employees or students on school property or at school functions.

District Requirements

The Dignity Act is embodied in Sections 10-18 of the Education Law and the Commissioner has adopted regulations, at 100.2(c)(1), (jj) and (kk) that implement the statutory requirements that:
- At least once during each school year, provide all school employees, students and parents with a written or electronic copy of the school district’s policies created pursuant to Section 13 of the Education Law or a “plain-language summary” thereof.
- District implementation policies must be posted on the District’s Website.
Section 12(2) of the Education Law will require the Code of Conduct, commencing with the 2013-14 School Year, to contain an age appropriate version of the anti-discrimination policy set forth in the law.
Designate at least one staff member in each school to handle human relations in the area of race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender and sex (Dignity Act Coordinator).
Develop guidelines related to the development of nondiscriminatory instructional and counseling methods.
Districts are required to establish policies and procedures to address cyberbullying, harassment, bullying and discrimination that do the following:
- identify the Principal, Superintendent, or their designee, charged with receiving reports of such acts;
- enable parents and students to make a report.
The building principals will have to make regular reports on data and trends related to harassment, bullying and discrimination to the Superintendent of Schools (e.g., monthly)
The building principals shall also have the duty to report to local law enforcement agencies conduct constituting a crime under DASA law and policy. (13[i])
Establishes a mandatory reporting duty of alleged policy violations by “employees who witness harassment, bullying or discrimination” to promptly orally notify the building principal, the superintendent or one of their designees no later than one (1) school day after witnessing or receiving a report of such conduct.
After making the oral report, it must be followed by the school employee’s written report within two (2) school days after making such oral report.
Investigatory Rigor: the principal or superintendent (or one of their designees) must lead or supervise a thorough investigation of all reports to prompt conclusion.
Remediation in Founded Cases: must be prompt actions reasonably calculated to end the harassment, bullying or discrimination. Such action must be measured to eliminate any hostile environment, create a more positive school culture and climate, prevent recurrence and insure the safety of the student(s) who was or were targeted.
Remediation efforts are specifically required to be consistent with the provisions of Section 13(4) of the Education Law, that include:
- measured, balanced and age appropriate responses;
- a progressive model that makes appropriate use of intervention, discipline and education;
- Vary the method of remediation to fit the nature of the behavior, the developmental age of the student, his or her history of problem behaviors; and
- Have the remediation consistent with the provisions of the school district’s Code of Conduct. (Section 13[4] Education Law)
The law requires training that addresses social patterns of harassment, bullying and discrimination, as defined in Section 11 of the Education Law for each of the classifications of discrimination. [Section 13(5) Education law]

Instruction in Civility, Citizenship and Character Education

The instruction currently required by Education Law §801-a will now need to include instruction on “tolerance”, “respect for others” and “dignity”, including awareness and sensitivity to discrimination and/or harassment and civility in relations of people of different races, weights, national origins, ethnic groups, religions, religious practices, physical or mental abilities, sexual orientations, genders and sexes.

Harassment & Bullying Under DASA

Harassment and bullying under DASA are described as the creation of a hostile environment by:

conduct
threats (verbal and non-verbal)
intimidation (verbal and non-verbal) or
abuse (verbal and non-verbal)
including cyberbullying

Under DASA, harassment and bullying also consider what or would have the effect of unreasonably and substantially interfering with a student’s:

educational performance
opportunities
benefits
mental, emotional or physical well-being
that reasonably causes or would be expected to cause a student to fear for his or her physical safety or cause physical injury or emotional harm to a student

According to DASA, harassment and bullying can occur off school property and must be considered when it creates or would foreseeably create a risk of substantial disruption within the school environment; where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property; and when it includes acts based on discrimination.

Discrimination under DASA

Discrimination under DASA is defined as action related to a person’s actual or perceived:

Race
National origin
Ethnic group
Weight
Religion
Color
Religious practice
Disability
Sex
Sexual orientation
Gender (including gender identity & expression)

School Property under DASA

School property means any:

Building
Structure
Athletic playing field
Playground
Parking lot
School land
School bus

“School function” means a school-sponsored extra-curricular event or activity.

Sexual Orientation & Gender under DASA

DASA defines “sexual orientation” as actual or perceived heterosexuality, homosexuality or bisexuality.

“Gender” is defined as actual or perceived sex and shall include a person’s gender identity or expression.

Cyberbullying under DASA

“Cyberbullying” is defined as any harassment, bullying, or discrimination where such occurs through any form of electronic communication.

The use of information and communication technologies (such as instant messages, email, text message and blogs) to support deliberate, repeated and hostile behavior by an individual or group that is intended to harm others.

This may take on many different forms, including:

Cyberstalking: Harassment that includes threats of harm or intimidation.
Masquerading: Pretending to be someone else when sending or posting material that makes the person look bad or placed that person in potential danger.
Phishing: Engaging in deceit or tricks to solicit embarrassing information to enable the information to become public.
Flaming: Sending angry, mean or vulgar messages to a person on line.
Harassment: Sending a person offensive messages repeatedly.
Denigration: Sending or posting untrue or mean statements about a person.

Sexting under DASA

Sexting is a word formed by combining the words “sex” and “texting”. It is the act of sending sexually explicit or sexually provocative photos or video electronically, primarily between cell phones. The photos may also thereafter be transmitted by computer through email, and/or posted to a website like Facebook or MySpace.

Recommended Actions

Consult with administration and legal counsel on speech, discipline or search issues before taking action, if possible.
- First Amendment issues.
- Fourth Amendment issues.
- Ability to impose discipline for off-campus misconduct.
- Evidentiary/evidence collection issues.
Consider alternatives to discipline (separating students, counseling, training).
- Note: victim should not be penalized by separation.
Teachable moments and curricular considerations.
Parental notification and meetings.
Contact with local law enforcement authorities when appropriate.
Consider your response in terms of changing the climate in the building, as opposed to responding to the specific acts of misconduct in an ad-hoc basis.

Legal Implications for School Districts