RESPONDING TO INCIDENTS OF PEER BULLYING AND HARASSMENT Andrea R. Kunkel CCOSA Staff Attorney (918)

Bullying and Harassment According to the Office for Civil Rights (OCR), “... [B]y limiting its response to a specific application of its anti-bullying policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment.” -Dear Colleague Letter (10/26/10) This means that compliance with the state School Bullying Prevention Act and your District policy may be insufficient to satisfy the District’s legal obligation 2

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What Does OCR Do? OCR has enforcement responsibility for complaints of discrimination based upon – Race, color and national origin under Title VI of the Civil Rights Act of 1964 – Disability under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act – Sex under Title IX of the Education Amendments 4

What Does OCR Have to Do with Peer Harassment? OCR handles complaints alleging discriminatory harassment (what we may call “bullying”) based on the 5 protected categories of race, color, national origin, disability and sex 5

What Else Does OCR Say in the 10/26/10 Dear Colleague Letter? Districts must consider whether alleged “bullying” may also constitute discriminatory harassment of the student based upon his/her protected category – race, color, national origin, disability or sex If so, the District must do more than impose discipline upon the perpetrator; it must provide an effective remedy to the target and an effective end to the harassment 6

What About Religious Discrimination? In the 10/26/10 Dear Colleague Letter, OCR states that harassment based upon religion may constitute discrimination based upon national origin or ethnicity (see example), over which OCR has jurisdiction – OCR does not enforce laws concerning religious discrimination, but the DOJ does 7

What About Sexual Orientation? In the 10/26/10 Dear Colleague Letter, OCR notes that some anti-gay actions constitute sexual harassment that violates Title IX (see example) – OCR does not have jurisdiction of claims of discrimination based upon sexual orientation unless that discrimination implicates Title IX 8

What Acts Constitute Peer Harassment? Harassing conduct takes many forms, such as verbal acts, calling names, graphic or written statements, and conduct that may be physically threatening, harmful or humiliating Need not include intent to harm, be directed at a specific target, or involve repeated incidents 9

When Do Districts Violate Civil Rights Laws Concerning Peer Harassment? Districts violate the law when peer harassment based on one of the 5 protected categories is “sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.” - Dear Colleague Letter (10/26/10) 10

What Is a Hostile Environment? “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.” - Dear Colleague Letter (10/6/10) 11

For What Incidents of Harassment Are District Responsible? A District is “responsible for addressing harassing incidents about which it knows or reasonably should have known.” A District has “notice of harassment if a responsible employee knew or in the exercise of reasonable care should have known about the harassment.” - Dear Colleague Letter (10/26/10) 12

Who Is a Responsible Employee? A responsible employee includes any employee who has authority to take action to redress harassment, who has the duty to report harassment to appropriate school officials or any other misconduct by students or employees, or an individual who a student could reasonably believe has this authority or responsibility 13

When Is a District on Notice of Bullying/Discriminatory Harassment? If bullying/harassment is in plain sight, widespread, or well-known to students and staff, then the District is on notice If the District becomes aware of misconduct (by report, etc.) that triggers an investigation that could lead to discovery of additional incidents that, taken together, may constitute a hostile environment, then the District is on notice 14

How Should Districts Respond When Notified of Bullying/Harassment? Conduct an investigation or otherwise determine what happened Steps in investigation vary depending upon nature of allegations, source of complaint, age of student(s) involved, size and administrative structure of school, etc. Investigation/inquiry should be prompt, thorough, impartial 15

What If the District’s Investigation Confirms that Discriminatory Harassment Occurred? The District must take prompt and effective steps reasonably calculated to end the harassment The District must eliminate any hostile environment and its effects The District must prevent the harassment from recurring 16

But What If...? It doesn’t matter whether the misconduct is covered by the school’s Bullying policy; the District must still satisfy requirements of federal law It doesn’t matter whether a student ever complained, asked the District to take action, or identified the harassment as a form of discrimination 17

How Does the District End Harassment, Eliminate Hostile Environment/Effects and Prevent Recurrence? OCR suggests these possibilities: – Separate the perpetrator(s) and the target (action shouldn’t penalize the target, so target shouldn’t be required to change class schedule) – Provide counseling for the target and/or perpetrator – Take disciplinary action against the perpetrator – Depending on extent of harassment, provide training/interventions for perpetrator(s) and larger school community 18

What Other Remedies Does OCR Suggest? – Provide additional services to the target to address effects of harassment (particularly if there was a delay in responding or inappropriate/inadequate initial response) – Issue and widely publicize new policies against harassment and/or new procedures for reporting allegations of harassment – Widely publicize existing policies/procedures – Widely distribute contact information for Compliance Coordinators 19

What Else Must Districts Do When They Confirm Discriminatory Harassment? At a minimum: – Make sure target(s), their families and persons who provided information as witnesses know how to report subsequent problems – Conduct follow-up inquiries to see if new incidents or retaliation has occurred – Respond promptly/appropriately to continuing or new problems 20

What Else Do Administrators Need to Know? What you or someone else calls the incident (like bullying, teasing, hazing) doesn’t change federal requirements for the District’s response If abusive behavior is based on 1 of the 5 protected categories and creates a hostile environment, then the District must respond according to federal requirements 21

What Else? When behavior implicates civil rights laws, look not only at discipline for perpetrator(s), but at other possible actions Remember, the District is obligated to eliminate the hostile environment caused by harassment, address effects of harassment and take steps to ensure that harassment does not recur – discipline alone may be insufficient 22

Don’t Do This! Fail to adopt and publicize adequate nondiscrimination, grievance and bullying/discrimination prevention policies Fail to identify Compliance Coordinators and publicize contact information Fail to follow policies Fail to adequately educate staff, students and parents about District policies, including prohibitions against bullying/harassment and retaliation 23

... Or This! Fail to document, document, document all aspects of your investigation and your response Fail to conduct prompt investigations Dismiss complaints without real consideration Do too much or too little (in out-of-school situations, for example) Fail to take short-term action to address situations while investigating complaints 24

... Or This! Fail to keep parents in the loop Fail to consider and address the impact of harassment (on attendance and school performance, for example) on the student target Fail to take any action other than imposition of discipline Fail to follow up and monitor, including individuals making complaints, targets and witnesses Fail to seek legal assistance when needed 25