Ask Matt - December 2010 - Bullying and Harassment

1. Ask Matt - December 2010 - Bullying and Harassment Matt Carver, J.D., Director of Legal Services tel - 515.267.1115 fax - 515.267.1066

2. Bullying and Harassment • Basis of this month’s webinar and column in the SAI Report - October 26 “Dear Colleague” letter, U.S.D.E.’s Office of Civil Rights (OCR) • OCR (The Federal Government) enforces: • Title VI of the Civil Rights Act of 1964 (Title VI), which prohibits discrimination on the basis of race, color, or national origin; • Title IX of the Education Amendments of 1972 (Title IX), which prohibits discrimination on the basis of sex; • Section 504 of the Rehabilitation Act of 1973 (Section 504); and Title II of the Americans with Disabilities Act of 1990 (Title II). Section 504 and Title II collectively prohibit discrimination based on disability.

3. Bullying and Harassment • Standard for school officials • School officials are likely in violation of these statutes, as well as corresponding regulations, “when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.” (emphasis added) • Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school. • Harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.

4. Bullying and Harassment • Federal civil rights laws do not expressly cover harassment on the basis of sexual orientation or religion. • However, these areas are, at times, indirectly covered.

5. Bullying and Harassment • For example, consider the student of Middle Eastern descent who is being harassed by other students. • The comments may all refer to Muslims, however, they are tying the religion to the student because of his national origin or ancestry, and the perception that all individuals from the Middle East are Muslims. • Title VI would cover such harassment, and school officials should take action, even if the student is not a Muslim. • As another example, Title IX would protect a student, regardless of sexual orientation, if the student is being harassed because he is not displaying the traits associated with his gender.

6. Bullying and Harassment • Common school district mistakes in the area of harassment and bullying include: (1) Being unresponsive or under-responsive when alleged harassment or bullying occurs; (2) Requiring the target to change classes; (3) Relying solely on discipline to address the situation. This often does little to fix underlying systemic problems; (4) Requiring a student to confront her harasser. This should only be done if the parties agree to such an informal approach on a strictly voluntary basis; or (5) Failing to conduct regular training with students and staff.

7. Bullying and Harassment • Reasonable steps school officials may take to remedy problems with harassment may include: (1) Separating the accused harasser and the target, while minimizing the burden on the target’s educational program (e.g., not having the target change classes, unless it is done at the target’s request). (2) Providing counseling for the target and/or harasser. (3) Taking progressive disciplinary action against the harasser(s). (However, the OCR noted in its “Letter to Colleagues” that schools sometimes rely too heavily just on discipline, without taking actions that may be necessary to address a more systemic problem.)

8. Bullying and Harassment • Reasonable steps school officials may take to remedy problems with harassment may include:(cont.) (4) Providing training or other interventions for the larger school community, so staff, students and families know how to identify harassment, and know how to respond and report harassment. (5) Training staff on constructive responses to conflict between students, whether racial or otherwise. (6) Hosting class discussion about bullying, harassment, and being sensitive to students of varying backgrounds and characteristics. (7) Involving parents and students in an effort to identify problems and improve the school climate.

9. Bullying and Harassment • Reasonable steps school officials may take to remedy problems with harassment may include: (cont.) (8) Removing promptly any harassing graffiti from school premises. (9) Reaffirming the school district’s anti-bullying and harassment policy. (10) Creating an age-appropriate program to educate students about the history and dangers of discriminatory and harassing behavior. (11) Offering targeted students tutoring, other academic assistance, or counseling as necessary to remedy the effects of harassment.

10. Bullying and Harassment • Reasonable steps school officials may take to remedy problems with harassment may include:(cont.) (12) Monitoring more aggressively the places where harassment occurs in your buildings (e.g., hallways, lunchroom, etc.), as well as additional monitoring of the alleged harassers. (13) Ensuring wide distribution of the contact information for the district’s Title IX and Section 504/Title II coordinators. (All school districts are required to designate persons responsible for coordinating compliance with Title IX, Section 504, and Title II, including investigation of any complaints of sexual, gender-based or disability harassment. See 28 CFR § 35.107(a), 34 CFR § 104.7(a), 34 CFR § 106.8(a).) You do not have to take all of these steps, just those reasonably calculated to serve as a solution.

11. Bullying and Harassment • Iowa Code § 280.28, harassment or bullying in Iowa schools covers actual or perceived “[t]rait[s] or characteristic[s] of the student” includ[ing] but . . . not limited to age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status. • Iowa’s law pretty much covers everything. • Your district must have an anti-bullying policy based on Iowa Code § 280.28.

12. Bullying and Harassment • Iowa Code § 280.28(2)(b) • b. 'Harassment' and 'bullying' shall be construed to mean any electronic, written, verbal, or physical act or conduct toward a student which is based on any actual or perceived trait or characteristic of the student and which creates an objectively hostile school environment that meets one or more of the following conditions: (1) Places the student in reasonable fear of harm to the student's person or property. (2) Has a substantially detrimental effect on the student's physical or mental health.

13. Bullying and Harassment • Iowa Code § 280.28(2)(b) • b. 'Harassment' and 'bullying' shall be construed to mean any electronic, written, verbal, or physical act or conduct toward a student which is based on any actual or perceived trait or characteristic of the student and which creates an objectively hostile school environment that meets one or more of the following conditions: (cont.) . . . (3) Has the effect of substantially interfering with a student's academic performance. (4) Has the effect of substantially interfering with the student's ability to participate in or benefit from the services, activities, or privileges provided by a school.

14. Bullying and Harassment • Other practical points to consider: (1) Not every isolated incident of name-calling equates to a violation of your school’s bullying policy and/or federal law. • Determine whether one of the conditions under your policy has been met. (2) Err on the side of protecting the target, while still providing the alleged harasser his/her due process rights. (3) If the bullying occurs online, consider contacting the applicable social networking site or other website used to perpetrate the bullying.

15. Bullying and Harassment • Other practical points to consider: (4) I encourage you to have anti-bullying and anti-harassment training for students and staff at least once per year. You may decide that this is best accomplished with students in a smaller, classroom setting. • Even an hour of training is better than nothing, so staff and students know how to report bullying and where to go to get help. (5) Consider adding citizenship expectations to your Good Conduct Policy, to help prevent inappropriate postings online. • This may provide you with the basis to discipline a student under your Good Conduct Policy, even if the behavior does not rise to the level of violating your Anti-bullying policy.

16. Bullying and Harassment • Other practical points to consider: (6) This is one of the most common areas where parents of the target want to know what you did to discipline the harasser. • Remember that sharing such information is a breach of the privacy rights of that student. (7) Inform parents if a student is allegedly being bullied or harassed, whether it reportedly took place at school or away from school. (8) Regularly follow up with the target, to ensure everything is going alright.

17. Bullying and Harassment • Other practical points to consider: (9) Remind staff that they should report bullying or harassment against a student, and not just rely on the student to make the report. • However, it is appropriate for the staff member to first encourage the student to make a report. (10) School officials are most culpable when they fail to take action altogether, or take such little action that it would be considered an unreasonable level of response to the situation. (“Deliberate Indifference”) (11) Remember, unless it is truly an isolated incident, your response should not be just about disciplining the harasser.

18. Bullying and Harassment • Other practical points to consider: (12) Often, bullying now occurs online. Educate students about online bullying and why they might to stay clear of pages or discussions where bullying often occurs. Also, educate parents about this problem and ask them to consider how early their child needs a social networking page.

19. Bullying and Harassment - Questions