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1 DIGNITY FOR ALL STUDENTS ACT Legal Implications of Bullying for School Districts Presented by Garrett L. Silveira, Esq. Shaw, Perelson, May & Lambert,

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Presentation on theme: "1 DIGNITY FOR ALL STUDENTS ACT Legal Implications of Bullying for School Districts Presented by Garrett L. Silveira, Esq. Shaw, Perelson, May & Lambert,"— Presentation transcript:

1 1 DIGNITY FOR ALL STUDENTS ACT Legal Implications of Bullying for School Districts Presented by Garrett L. Silveira, Esq. Shaw, Perelson, May & Lambert, LLP Council of New York Special Education Administrators

2 Dignity for All Students Act On September 8, 2010, Governor Paterson signed the Dignity for All Students Act (“DASA”) which prohibits harassment and/or discrimination of students by employees or other students on school property or at school functions based upon a student’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex On September 8, 2010, Governor Paterson signed the Dignity for All Students Act (“DASA”) which prohibits harassment and/or discrimination of students by employees or other students on school property or at school functions based upon a student’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex 2

3 Dignity for All Students Act The Commissioner will develop regulations which will create a system for reporting incidents of bullying or bias based harassment to the New York State Education Department. At its January 2011 meeting, the Board of Regents authorized the development of a Task Force to assist in the implementation of the Law and creation of regulations The Commissioner will develop regulations which will create a system for reporting incidents of bullying or bias based harassment to the New York State Education Department. At its January 2011 meeting, the Board of Regents authorized the development of a Task Force to assist in the implementation of the Law and creation of regulations 3

4 District Requirements Revise their codes of conduct and adopt policies intended to create a school environment free from harassment and discrimination Revise their codes of conduct and adopt policies intended to create a school environment free from harassment and discrimination The Code of conduct must include an age- appropriate version of the District’s policy against bullying written in plain-language The Code of conduct must include an age- appropriate version of the District’s policy against bullying written in plain-language 4

5 District Requirements Adopt guidelines to be used in school training programs to raise awareness and sensitivity of school employees to these issues and to enable them to prevent and respond appropriately Adopt guidelines to be used in school training programs to raise awareness and sensitivity of school employees to these issues and to enable them to prevent and respond appropriately 5

6 District Requirements 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 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 Develop guidelines related to the development of nondiscriminatory instructional and counseling methods Develop guidelines related to the development of nondiscriminatory instructional and counseling methods 6

7 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 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 7

8 “Harassment” Under DASA The creation of a hostile environment by The creation of a hostile environment by conduct conduct or by verbal threats or by verbal threats intimidation intimidation or abuse or abuse 8

9 “Harassment” Under DASA That has or would have the effect of unreasonably and substantially interfering with a student’s That has or would have the effect of unreasonably and substantially interfering with a student’s educational performance educational performance opportunities opportunities benefits benefits or mental, emotional or physical well-being, or or mental, emotional or physical well-being, or 9

10 “Harassment” Under DASA Conduct, verbal threats, intimidation, or abuse that Conduct, verbal threats, intimidation, or abuse that reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety 10

11 “Harassment” Under DASA Such conduct, verbal threats, intimidation or abuse includes but is not limited to conduct, verbal threats, intimidation or abuse based on a person’s actual or perceived: Such conduct, verbal threats, intimidation or abuse includes but is not limited to conduct, verbal threats, intimidation or abuse based on a person’s actual or perceived: Race Race Color Color Weight Weight 11

12 “Harassment” Under DASA A person’s actual or perceived A person’s actual or perceived National origin National origin Ethnic group Ethnic group Religion Religion Religious practice Religious practice Disability Disability Sexual orientation Sexual orientation Gender Gender Sex Sex 12

13 “School Property” “School property” means any “School property” means any Building Building Structure Structure Athletic playing field Athletic playing field Playground Playground Parking lot Parking lot School land School land School bus School bus 13

14 Off Campus Misconduct DASA does not directly extend to off- campus student on student conduct (including bullying) that occurs via electronic media DASA does not directly extend to off- campus student on student conduct (including bullying) that occurs via electronic media However, DASA charges the Commissioner with responsibility for providing direction to school districts about compliance with DASA However, DASA charges the Commissioner with responsibility for providing direction to school districts about compliance with DASA 14

15 Off Campus Misconduct DASA also requires school districts to revise their codes of conduct to include an age-appropriate, plain language version of DASA’s anti-bullying policy DASA also requires school districts to revise their codes of conduct to include an age-appropriate, plain language version of DASA’s anti-bullying policy Therefore, it is significant that the Commissioner’s “Guidance on Bullying and Cyberbullying” states that school districts “should address such internet and electronic device safety issues such as cyberbullying and sexting in their codes of conduct Therefore, it is significant that the Commissioner’s “Guidance on Bullying and Cyberbullying” states that school districts “should address such internet and electronic device safety issues such as cyberbullying and sexting in their codes of conduct 15

16 “School Function” “School function” means a school- sponsored extra-curricular event or activity “School function” means a school- sponsored extra-curricular event or activity 16

17 “Sexual Orientation” and “Gender” DASA defines “sexual orientation” as actual or perceived heterosexuality, homosexuality or bisexuality 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 “Gender” is defined as actual or perceived sex and shall include a person’s gender identity or expression 17

18 Immunity From Civil Liability Any person with reasonable cause to suspect a student has been subjected to discrimination or harassment by an employee or student on school grounds or at a school function and who in good faith reports such incident or participates in any formal or informal proceedings shall have immunity from civil liability Any person with reasonable cause to suspect a student has been subjected to discrimination or harassment by an employee or student on school grounds or at a school function and who in good faith reports such incident or participates in any formal or informal proceedings shall have immunity from civil liability 18

19 Bullying and the Law The issues involving bullying are complex and often intertwine with numerous anti- discrimination laws The issues involving bullying are complex and often intertwine with numerous anti- discrimination laws Title VI of the Civil Rights Act (prohibiting racial discrimination) Title VI of the Civil Rights Act (prohibiting racial discrimination) Title IX of the Elementary and Secondary Education Act (prohibiting sexual harassment) Title IX of the Elementary and Secondary Education Act (prohibiting sexual harassment) 19

20 Bullying and the Law Title VI of the Civil Rights Act of 1864 (prohibiting discrimination on the basis of race, color, or national origin) 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) Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA (prohibiting disability discrimination) 42 U.S.C. Section 1983 (Equal Protection Clause of the 14 th Amendment, Substantive Due Process Clause of the 14 th Amendment) 42 U.S.C. Section 1983 (Equal Protection Clause of the 14 th Amendment, Substantive Due Process Clause of the 14 th Amendment) 20

21 Recipe for 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 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 21

22 Severity of Conduct Conduct creates a hostile environment when it is so sufficiently severe, pervasive or persistent that it interferes with a student’s ability to participate in or benefit from the services, activities or opportunities offered by a school Conduct creates a hostile environment when it is so sufficiently severe, pervasive or persistent that it interferes with a student’s ability to participate in or benefit from the services, activities or opportunities offered by a school 22

23 Actual Knowledge of Conduct Employees must have “actual knowledge” of the bullying Employees must have “actual knowledge” of the bullying OCR has opined that a school is sufficiently placed on notice of harassing behavior where the harassment occurs in plain sight, is widespread or well-known to students and staff, occurs in the hallways, during academic or PE classes, occurs during extracurricular activities, at recess, on a school bus or through graffiti in public areas OCR has opined that a school is sufficiently placed on notice of harassing behavior where the harassment occurs in plain sight, is widespread or well-known to students and staff, occurs in the hallways, during academic or PE classes, occurs during extracurricular activities, at recess, on a school bus or through graffiti in public areas 23

24 What Does it all Mean? 24

25 “Dear Colleague” Letter On October 26, 2010, OCR issued a “Dear Colleague” letter warning school districts that some student misconduct that falls under a school’s anti-bullying policies may also trigger responsibilities under one or more of the anti-discrimination laws enforced by OCR On October 26, 2010, OCR issued a “Dear Colleague” letter warning school districts that some student misconduct that falls under a school’s anti-bullying policies may also trigger responsibilities under one or more of the anti-discrimination laws enforced by OCR 25

26 “Dear Colleague” Letter This letter provides concrete hypothetical examples of how bullying conduct that we often see in schools can violate the civil rights statutes listed earlier This letter provides concrete hypothetical examples of how bullying conduct that we often see in schools can violate the civil rights statutes listed earlier 26

27 Cyberbullying The use of information and communication technologies (such as instant messages, , text message and blogs) to support deliberate, repeated and hostile behavior by an individual or group that is intended to harm others. The use of information and communication technologies (such as instant messages, , text message and blogs) to support deliberate, repeated and hostile behavior by an individual or group that is intended to harm others. May take on many different forms, including: May take on many different forms, including: 27

28 Cyberbullying Cyberstalking Cyberstalking Harassment that includes threats of harm or intimidation Harassment that includes threats of harm or intimidation Masquerading Masquerading Pretending to be someone else when sending or posting material that makes the person look bad or placed that person in potential danger Pretending to be someone else when sending or posting material that makes the person look bad or placed that person in potential danger 28

29 Cyberbullying Phishing Phishing Engaging in deceit or tricks to solicit embarrassing information to enable the information to become public Engaging in deceit or tricks to solicit embarrassing information to enable the information to become public Flaming Flaming Sending angry, mean or vulgar messages to a person on line Sending angry, mean or vulgar messages to a person on line 29

30 Cyberbullying Harassment Harassment Sending a person offensive messages repeatedly Sending a person offensive messages repeatedly Denigration Denigration Sending or posting untrue or mean statements about a person Sending or posting untrue or mean statements about a person 30

31 Sexting A word formed by combining the words “sex” and “texting” A word formed by combining the words “sex” and “texting” The act of sending sexually explicit or sexually provocative photos or video electronically, primarily between cell phones 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 , and/or posted to a website like Facebook or MySpace The photos may also thereafter be transmitted by computer through , and/or posted to a website like Facebook or MySpace 31

32 District Responsibilities A school district may impose discipline for off-campus misconduct consistent with its code of conduct A school district may impose discipline for off-campus misconduct consistent with its code of conduct Off campus criminal misconduct Off campus criminal misconduct Off campus misconduct that reasonably could have a spill-over effect on the campus Off campus misconduct that reasonably could have a spill-over effect on the campus 32

33 Enter the Lawyers Student bullying Student bullying cases are the up and coming suits against school districts 33

34 Allegations included Allegations included Use of the word “nigger” almost immediately after student moved into the district, and continuing afterwards Use of the word “nigger” almost immediately after student moved into the district, and continuing afterwards Death threats scrawled on bathroom wall Death threats scrawled on bathroom wall Acts of physical violence against student Acts of physical violence against student Parents claimed that the student was the victim of racially-based harassment Parents claimed that the student was the victim of racially-based harassment Attorneys for parents claimed that the District did not respond quickly enough Attorneys for parents claimed that the District did not respond quickly enough 34

35 Jury awarded family $1.25 million in damages, finding that the District did not take sufficient action to address the complaints Jury awarded family $1.25 million in damages, finding that the District did not take sufficient action to address the complaints The decision is currently on appeal. The school district strongly disagrees with the jury verdict The decision is currently on appeal. The school district strongly disagrees with the jury verdict 35

36 Allegation of disability based discrimination and bullying Allegation of disability based discrimination and bullying District alleged to have had actual knowledge of conduct and failed to take appropriate actions to end conduct District alleged to have had actual knowledge of conduct and failed to take appropriate actions to end conduct Compensatory and punitive damages and prevailing party attorney fees sought Compensatory and punitive damages and prevailing party attorney fees sought Same law firm Same law firm 36

37 Notice of Claim served upon school district alleging Notice of Claim served upon school district alleging Electronic threats Electronic threats In school threats In school threats Inadequate District response Inadequate District response Fear and missed services Fear and missed services Claim seeks significant monetary damages and attorney fees Claim seeks significant monetary damages and attorney fees 37

38 Recommended Actions Review current policies and procedures (e.g., code of conduct, acceptable use, cell phones/electronic communications) Review current policies and procedures (e.g., code of conduct, acceptable use, cell phones/electronic communications) Development and review of policies and procedures pursuant to DASA Development and review of policies and procedures pursuant to DASA Ensure policies are well-publicized Ensure policies are well-publicized Educate students, teachers and other staff members Educate students, teachers and other staff members 38

39 Recommended Actions Investigate reports of bullying and cyberbullying immediately, regardless of whether the student has complained, filed a written complaint or otherwise asked the school to act Investigate reports of bullying and cyberbullying immediately, regardless of whether the student has complained, filed a written complaint or otherwise asked the school to act If an investigation reveals bullying or harassment has taken place, take prompt and effective steps reasonably calculated to end the bullying or harassment and prevent it from recurring If an investigation reveals bullying or harassment has taken place, take prompt and effective steps reasonably calculated to end the bullying or harassment and prevent it from recurring 39

40 Recommended Actions Consult with counsel on speech, discipline or search issues before taking action, if possible Consult with counsel on speech, discipline or search issues before taking action, if possible First Amendment issues First Amendment issues Fourth Amendment issues Fourth Amendment issues Ability to impose discipline for off- campus misconduct Ability to impose discipline for off- campus misconduct Evidentiary/evidence collection issues Evidentiary/evidence collection issues 40

41 Recommended Actions Consider alternatives to discipline (separating students, counseling, training) Consider alternatives to discipline (separating students, counseling, training) Note: victim should not be penalized by separation Note: victim should not be penalized by separation Teachable moments and curricular considerations Teachable moments and curricular considerations Parental notification and meetings Parental notification and meetings 41

42 Recommended Actions Contact with local law enforcement authorities when appropriate 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 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 42

43 The Path to Being Sued 43

44 44 QUESTIONS


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