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Bullying & Harassment: Its not just the Students By: Nicole M. Proesch AEA 267 Summit April 2, 2014.

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Presentation on theme: "Bullying & Harassment: Its not just the Students By: Nicole M. Proesch AEA 267 Summit April 2, 2014."— Presentation transcript:

1 Bullying & Harassment: Its not just the Students By: Nicole M. Proesch AEA 267 Summit April 2, 2014

2 Bullying & Harassment in the Workplace

3 Harassment – Iowa Code § 708.7 is a crime when one person “purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person. "Personal contact" does not require a physical touching or oral communication, although it may include these types of contacts.” Iowa Code section 708.7.

4 Bullying & Harassment in the Workplace Harassment – Iowa Code § 718.4 - Harassment is also a crime when “any person willfully prevents or attempts to prevent any public employee from performing the employee's duties.”

5 Bullying & Harassment in the Workplace Civil Suit for Discriminatory Harassment Discriminatory Harassment - When harassment is based on the target’s race, color, religion, creed, national origins, disability, or sex, it is a form of discrimination. Liability - The harasser – and the harasser’s employer – may be sued in civil court for monetary damages. Principles of Sexual Harassment - also apply to race, color, religion or national origin.

6 Bullying & Harassment in the Workplace SEXUAL HARASSMENT There are two broad categories of sexual harassment in the workplace: 1)quid pro quo 2)hostile work environment

7 Bullying & Harassment in the Workplace SEXUAL HARASSMENT - 29 CFR §1604.11 Sexual harassment - as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: –submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, –submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or –such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

8 Bullying & Harassment in the Workplace SEXUAL HARASSMENT IN THE WORKPLACE McElroy vs. State of Iowa & ISU A state university graduate student filed a sexual harassment claim against university and the state, alleging that university failed to protect her from professor's sexual harassment, and that university retaliated against her by changing the terms of her employment. The sexual harassment consisted of –Repeated unwelcome touching –Grossly inappropriate comments –Month long trip – a two room suite with both beds in one room – the student protested and the professor got upset –The student was subjected to massage of her feet against her will while the professor disclosing intimate details of his sex life. –A one point the professor left the room stating he had “messed himself” –The professor threatened to leave her in Russia – he had maintained her passport “for safekeeping.”

9 Bullying & Harassment in the Workplace SEXUAL HARASSMENT IN THE WORKPLACE McElroy vs. State of Iowa & ISU cont. Shortly after the trip the student filed a sexual harassment complaint with the ISU Affirmative Action Office. –The student was reassigned to another professor however, the professor continued to harass the student. –An investigation concluded the professor violated the sexual harassment policy and created a hostile work environment which interfered with the students academic progress. –ISU eliminated contact between the two, required the professor to go through sexual harassment training, and suspended him without pay for one year. Proceeding to fire the tenured professor were stopped after he was diagnosed with terminal cancer. The student filed suit against for sexual harassment in employment and in education.

10 Bullying & Harassment in the Workplace SEXUAL HARASSMENT IN THE WORKPLACE McElroy vs. State of Iowa & ISU Cont. The District Court entered judgment on jury verdict in favor of university. Graduate student appealed. The Supreme Court, 637 N.W.2d 488, reversed and remanded because of an improper jury instruction.637 N.W.2d 488, On remand the District Court entered judgment on jury verdict awarding student over $3 million in damages. The case later settled after the case was remanded back to district court for an undisclosed amount. [McElroy vs. State of Iowa & Iowa State University of Science & Technology, 703 N.W. 2d 385 (2005)]

11 Bullying & Harassment in the Workplace PROTECTION FROM SUCCESSFUL HARASSMENT CLAIMS Educate staff. Written policies staff understand. Investigation of complaints. Document, document, document. Keep the interested parties informed. Discipline appropriately (action must be reasonably calculated to end the harassment). Contact school’s insurer and/or attorney, especially if the complaint comes from the ICRC/EEOC (civil rights – if complainant is an employee) or ICRC/OCR/USED (if complainant is a student).

12 School Anti-Bullying & Anti-Harassment Law

13 School Anti-Bullying, Anti-Harassment Law ( Iowa Code section 280.28 Requires every school district and accredited nonpublic school in Iowa to have a policy that they will not tolerate bullying and harassment. Bullying & Harassment are combined together under this law. I used to say that the worst thing an educator could do was nothing….

14 School Anti-Bullying, Anti-Harassment Law The worst thing an educator can do is to be part of the bullying and harassment.

15 School District Liability

16 Types of Cases There are two lines of student harassment cases against schools and school employees 1)Harassment by school employees and 2)those alleging peer-to-peer harassment. Focus on staff to student harassment – –But schools and teachers can also be accountable for not stopping peer-to-peer harassment.

17 School District Liability Supreme Court Case In 1998, the U.S. Supreme Court first gave students a private right of action for monetary damages for sexual harassment by a school employee against the school if the plaintiff proved the following: 1)That the school had actual notice of the misconduct; and 2)That the school was deliberately indifferent to the misconduct. The plaintiff must show that the school made a deliberate decision not to remedy the misconduct. [Gebser v. Lago Vista School District, 524 U.S. 274, 118 S.Ct 1989 (1998)]

18 Staff on student bullying & harassment

19 Volunteer Sexual Harassment Southern District of Iowa - A student alleged sexual harassment by a school volunteer (same analysis as if the alleged perpetrator were an employee of the district). –A few previous unsubstantiated complaints about this volunteer – a 70+ year old man. –There was no reason for the school district to remove him as a volunteer when its investigation was done in a reasonably thorough manner and did not disclose any problems. Result: Therefore, the district’s motion for summary judgment was granted. [Gordon ex rel. Gordon v. Ottumwa CSD, 115 F.Supp.2d 1077 (S.D. Iowa 2000).]

20 Staff on student bullying & harassment Teacher Verbal, Physical & Sexual Abuse 8 th Circuit – Arkansas - A group of students & their parents sued the school based on a teacher’s alleged verbal, physical, and sexual abuse. Result: The court granted summary judgment in favor of the school because the school was not liable for: –verbal abuse because verbal abuse is not a constitutional violation; –physical abuse because the school had no notice of a pattern of such abuse; and –for sexual abuse, again because the school had insufficient notice of such abuse. [Doe v. Gooden, 214 F.3d 952 (8 th Cir. 2000).]

21 Staff on student bullying & harassment Teacher Sexual Harassment Iowa - A former student of the teacher involved – sued the teacher for their “consensual” sexual relationship. –The teacher was previously discharged from his former district for the same misconduct. –That district impleaded the former school district for not telling it about his prior bad acts. At the time of this lawsuit, “sexual exploitation of a student” was not criminal. Result: the Iowa Supreme Court stated that no crime = no duty to protect the student and others like her from this predatory teacher. The result would not be the same today. [Stotts v. Eveleth, 688 N.W.2d 803 (Iowa 2004).]

22 Staff on student bullying & harassment Teacher Sexual Harassment West Virginia - A West Virginia elementary school student had been sexually fondled by his teacher in the classroom, used drugs and alcohol with the teacher after school hours, and eventually engaged in sex acts with the teacher. The student sued the school board and various school officials. Issue: Whether the school principal was deliberately indifferent to the risk of the teacher sexually abusing his students. –The principal had prior knowledge that the teacher had been seen in the school hot tub with male students, at least one of whom was nude. –The teacher had also been convicted of providing alcohol to male students on a trip in his car, and had allegedly sexually abused them. [Arbaugh v. Bd. Of Educ., County of Pendleton, 329 F.Supp.2d 762 (N.D.W.Va. 2004).]

23 Staff on student bullying & harassment Teacher Sexual Harassment Georgia - By all accounts, a male Georgia high school student had a “consensual” sexual relationship with one of his teachers – a married female. –This was not a crime under Georgia law. –The teacher provided the student with prescription drugs and pain pills, paid his speeding tickets, and gave him clothes, a cell phone, and money. –Anonymous reports of their relationship reached school administrators, who investigated thoroughly. –Their investigation was met with denials from both student and teacher. (In fact, the student used the investigation to extort more materials goods from the teacher to “buy” his silence.) – Once the school was able to make a connection between the student and teacher, it fired the teacher. Result: When the boy’s parents sued, the court determined that the school was not liable because its officials had acted properly. [Sauls v. Pierce County School District, No. 03-16267 (11 th Cir. 2/9/05).]

24 Staff on student bullying & harassment Teacher Sexual Harassment New York - A nonpublic school student’s parents filed a negligent hiring and supervision lawsuit against the school for damages. –The student had been sexually abused by a teacher while the student was in the teacher’s 1 st grade class; –the abuse continued while the student was in 2 nd and 3 rd grades. –The court held that the fact that the teacher removed the student from his 2 nd and 3 rd grade classes on a weekly basis without explanation (and with the other teachers’ consent) was sufficient to raise a triable issue as to whether those teachers breached a duty of ordinary care toward the child. Result: The school itself was granted summary judgment on the negligent hiring claim, as there was not a sufficient showing that the school was or should have been aware of the proclivities of the teacher. [Doe v. Whitney, 779 N.Y.S.2d 570 (N.Y.A.D. 2 Dept. 2004).]

25 Staff on student bullying & harassment Teacher Sexual Harassment North Carolina - A North Carolina teacher is alleged to have encouraged and facilitated a sexual relationship between two students – and then videotaping the students having sex. –The teacher made his home, car, and office available to the students. –The school resource officer knew of the teacher’s actions but did not inform school officials and did nothing to put a stop to the abuse. Result: In denying the motion to dismiss filed by the school employees, the court stated that the employees were not entitled to statutory immunity because their actions were beyond the scope of their public duties. The case will proceed to trial. [Smith v. Jackson County Bd. of Educ., 608 S.E.2d 399 (N.C. App. 2005).]

26 Staff on student bullying & harassment Administrator Sexual Harassment Illinois - The dean of students at a public middle school in Illinois attended a delinquency hearing in juvenile court on behalf of a student. –The educator persuaded the juvenile court judge to release the student to his custody, stating that he would take the student to register for school. –Instead, he took the student to his home and sexually abused him. Result: Because the dean used his authority as a public school educator to deceive the court, the lawsuit against him under a federal law authorizing court action against “state actors” may proceed to trial. Furthermore, the lawsuit against the school district is proceeding for a jury to determine whether the district’s failure to put any restrictions on the dean regarding his contact with students during police and state agency investigations constituted deliberate indifference toward the welfare of the student. [Doe v. Smith, 470 F.3d 331 (7 th Cir. 2006).]

27 Staff on student bullying & harassment Substitute Teacher Sexual Harassment South Carolina – A complaint filed against a school by the parents of a student who was involved in a sexual relationship with a substitute teacher will proceed to trial. The parents allege that the school acted with gross negligence in failing to protect their child from the known danger of a substitute teacher’s inappropriate interest in young girls. [Doe v. Greenville County School District, 2007 WL 2415751 (S.C. 8/27/07).]

28 Staff on student bullying & harassment Coach Sexual Harassment North Carolina - A male coach’s alleged behavior of asking female students (on his soccer team) about their sex lives, if proven, constitutes sexual harassment. This behavior creates a hostile or abusive environment for the female students, given the disparity of power between coach and students. [Jennings v. University of North Carolina, 2007 WL 1040592 (4 th Cir. 4/9/07).]

29 Staff on student bullying & harassment P.E. Teacher & a Disabled Student 11 th Circuit – A P.E. teacher entitled to qualified immunity where his conduct did not shock the conscience. Teacher was alleged to have shoved disabled student head-first into a trash can and then pulled the student out by his legs. Investigation indicated that the teacher and student frequently engaged in horseplay in a joking manner. Supt concluded that the teacher was not being malicious or mean- spirited, and only counseling was provided to the teacher not to engage in horseplay with his students. [Mahone v. Ben Hill County Sch. Sys., 54 IDELR 183 (11 th Cir. 2010)]

30 Staff on student bullying & harassment Ethical Violations Board of Educational Examiners can also file ethical charges against a licensed practitioner for being in violation of Iowa Administrative Code 282 IAC 25.3(6)”c” and “d” –Failing to make reasonable efforts to protect the health and safety if the student or creating conditions harmful to student leaning; and –Conducting professional business in such a way that the practitioner repeatedly exposes students or other practitioners to unnecessary embarrassment or disparagement.

31 Staff on student bullying & harassment Special Education Teacher A students mother recorded 27 hours of audio that occurred in the teachers classroom. The recordings revealed the teacher: –mocking a student when he was told to go “home” and he went to his seat and sat down. –treating a student like a dog giving him commands to drop dead, roll over, shake, and jump – then laughing –yelling at a student to stop screaming –After a student went to the restroom the teacher commented “does it smell stinky,” “Smell your butt.” –repeated a trigger word over and over to a student to get him to scream. –Inappropriately placed students in timeouts for up to 90 minutes –Minimal instruction was taking place – The BOEE found that the teacher violated 282 IAC 25.3(6) “c” & “d.” –Indefinite suspension for not less then five years [In the matter of Kristi Bottoms, 12BEE024 (Bd. Of Educ. Exam’rs, April 23, 2013)]

32 Staff on student bullying & harassment Elementary Education Teacher A complaint received alleging the teacher created a hostile learning & working environment. The investigation revealed that the teacher: –Called students names and used intimidating and aggressive behavior toward students and coworkers. The BOEE was charged with violating 282 IAC 25.3(6) “c” & “d.” Settlement – –The teachers licenses were expired and she agreed not to renew them until undergoing an evaluation and any treatment recommendations, counseling for anger management & training in leadership strategies. –Added to the National Association of State Directors of Teacher Education and Certification (NASDTEC). [In the matter of Gayle Tucker, Case No. 12-61 (Bd. Of Educ. Exam’rs, April 5, 2013)]

33 Staff on student bullying & harassment High School Coach A complaint received alleging the coach violated professional ethics code. The investigation revealed that the coach: – forced a student athlete to undergo threatening and derogatory remarks from the coach and other student athletes. –Required student athletes to complete an unreasonable amount of conditioning drills after practice as physical punishment for protected speech –Delegated coaching duties to an individual not licensed to practice –Used language with student athletes that was profane, demeaning, and or inappropriate. The coach was charged with violating 282 IAC 25.3(6) c, d, j, & l. Settlement – –The coach completed a course on Theory and Ethics of Coaching –Received a Written Reprimand –Added to the National Association of State Directors of Teacher Education and Certification (NASDTEC). [In the matter of Tom Mihalovich, Case No. 12-136 (Bd. Of Educ. Exam’rs, June 18, 2013)]

34 Parent bullying & harassment

35 Scenario: An angry parent upset with the school about a situation affecting their child. The parent does not get the answers they want so they continue to call the school and harass employees over the phone. The parent then shows up demanding to speak with the principal. –Bullying - Is this bullying and harassment under 280.28? No. Because they are not an employee or student. –Harassment - This could be harassment under Iowa Code §§708.7 & 716.7. No Contact Order - The school can seek an NCO a under a criminal proceeding –Trespassing – Iowa law prohibits a person from entering or remaining on property without justification after being asked to leave or stay away by a public employee with the duty to supervise the property. Administrators have the right to ask a person to leave if they are aggressive or threatening or otherwise disruptive at school or school activities.

36 Lessons Learned: Staff to Student Bullying & Harassment

37 Lessons Learned SO, WHAT HAVE WE LEARNED FROM THE ABOVE CASES? The Legal Standard is (probably) deliberate indifference If a school employee knows of harassment and does nothing, this is deliberate indifference. If a school employee should have known of harassment and does nothing, this is deliberate indifference. Therefore, to avoid liability – take steps that are reasonably calculated to alleviate or to prevent harassment. Even if the steps are not successful, you will be protected. “Protected” does not mean you will not be sued; it means you will not be sued successfully.

38 Lessons Learned Best Practices Know and follow your written policy. Make sure staff knows the lines of communication. Staff should be required to report harassment. Make sure students know how to report incidents. Separate the harasser from the victim, but don’t ostracize the victim in the process. Follow up with the target to make sure s/he has not suffered retaliation for making a report or complaint. Document, document, document. Tell the parents of their own child what steps you are taking (in other words, do not violate FERPA, the federal Family Educational Rights and Privacy Act).

39 Lessons Learned Best Practices - Sexual Harassment Allegations In addition to the above: –Launch an immediate investigation into the allegations. –Involve law enforcement if the allegations suggest possible criminal activity, or make sure the target and target’s family know about this option. –Respond immediately to any new information.

40 Lessons Learned BUT, OUR RELATIONSHIP WAS CONSENSUAL Recognizing that there is truly no such thing as a “consensual” relationship when the authority positions between teacher and student are so different, the Iowa legislature amended Iowa Code section 709.15 two years ago to create a new crime, sexual exploitation by a school employee. Key elements: –BOEE licensed –Attended within 30 days

41 Lessons Learned Related laws: License Revocation - Licensed school employee convicted of sexual exploitation of a student will have license revoked. Report to BOEE - School district MUST report to Board of Educational Examiners if a licensed employee resigns or is fired or whose contract is not renewed because of allegations of sexual exploitation of a student (or any incident or allegation of misconduct that, if proven, would be a sex crime or a forcible felony). Required reporting: –Board of School Districts or AEA –the superintendent of the school district or the chief administrator of AEA –Authorities in charge of a nonpublic school

42 Lessons Learned IF YOU DO GET SUED… –Know that Iowa Code chapter 670 (Municipal Tort Liability Act) provides three protections for public employees who are acting within the scope of their employment or duties: 1.Legal representation (this does not mean, however, that the employee gets to choose his/her own attorney) 2.Payment of any settlement/verdict 3.Protection from disciplinary action by the employer

43 By: Nicole M. Proesch Legal Counsel Iowa Department of Education Nicole.proesch@iowa.gov 515-281-8661


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