BULLYING & CYBERBULLYING · application of an anti-bullying or other disciplinary policy, they may...

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BULLYING & CYBERBULLYING:SCHOOL DISTRICT DUTIES ACCORDING TO OCRPresented by: Teresa T. CombsKSBADirector of Legal & Administrative Training Services

FEDERAL OVERREGULATION▪ Per the National School Boards Association (NSBA) 7,637 new federal

regulations were published between October 6, 2012 and November 29, 2015.

No portion of this document is to be reproduced or shown without the express permission of Teresa T. Combs .

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OCR JURISDICTION

▪ OCR has jurisdiction over:

▪ Title VI Civil Rights Act of 1964 (Title VI);

▪ Title IX of the Education Amendments 1972 (Title IX);

▪ Section 504 of The Rehabilitation Act 1973 (Section 504), and

▪ Title II of the Americans with Disabilities Act of 1990 (ADA) (as amended).

▪ OCR says school staff have a duty to recognize and address a hostile environment situation even if no complaint is filed.

▪ Schools sometimes forget that if the conduct also constitutes harassment under federal laws like Title IX and Section 504, the district must complete the investigation and documentation pursuant to OCR’s guidance documents.


FEDERAL TITLE IX REGULATIONS

▪ The Title IX regulations are found at 34 C.F.R § 106, et seq.

▪ They apply to recipients of federal funding.

▪ The federal Title IX regulations generally provide for the following:

▪ Remedial action

▪ Affirmative action

▪ Self-evaluation

▪ Availability of self-evaluation and related materials.


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MOVING TARGET AGENCY MANDATES▪ Guidance documents

▪ Agency Notices

▪ “Dear Colleague Letters”

▪ FAQs

▪ Fact Sheets

▪ Blogposts


MOVING TARGET AGENCY MANDATES CONTINUED

▪ Hard to fight city hall

▪ Takes a full time person to keep up with all the guidance “mandates”

▪ More time spent making the agency staff happy than in addressing a complaint


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LEGISLATIVE RULES V INTERPRETIVE RULES

▪ Perez v. Mortgage Bankers Association, 135 S.Ct. 1199 (2015).

▪ Administrative Procedures Act (APA)

▪ Legislative rules – require notice and comment

▪ Interpretive rules do not

▪ U.S. Department of Labor (USDoL) letters on employees exempt from over-time pay under Fair Labor Standards Act.

▪ New regulations in 2004 after 1999 and 2001 letters say loan officers are not exempt

▪ In 2006, USDoL issued letter saying loan officers are exempt.

▪ In 2010, USDoL withdrew the 2006 letter, without notice and comment by the public, and issued new letter that loan officers are not exempt.


LEGISLATIVE RULES V INTERPRETIVE RULES CONTINUED

▪ Mortgage Bankers Association sued, asserting agency cannot change interpretation of its regulations without notice and comment period.

▪ The Supreme Court held under the APA interpretive rules do not require a notice and comment period.


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AGENCY INTERPRETATION V CLEAR REGULATION LANGUAGE

▪ Compare G.G. v. Gloucester, 2015 WL 5560190 (U.S.D.C. E.D. Va.).

▪ Challenge to recently adopted school district policy requiring use of restrooms and locker rooms of a student’s biological sex.

▪ Plaintiff argued a Title IX violation.

▪ USDoJ filed a Statement of Intent, arguing the court should defer to a USED guidance letter on the topic – such letter supported the position of the student plaintiff.

▪ Court cited a specific Title IX regulation, 34 C.F.R. § 106.33, that says schools may provide separate bathroom and locker room facilities based on sex.

▪ Court held an agency’s interpretation cannot supplant regulation language that is not ambiguous.

▪ Decision is on appeal to the Fourth Circuit.


BULLYING AND HARASSMENT U.S. SUPREME COURT

▪ Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).

▪ A school may be liable for monetary damages if one student sexually harasses another student in the school’s program and the district’s response to harassment has been “deliberately indifferent.”

▪ In this case, the school district had no policies about peer-to-peer harassment.

▪ The Supreme Court adopted the “deliberate indifference “standard from Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), a Title IX case of staff-to-student harassment.


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DELIBERATE INDIFFERENCE STANDARD

▪ Vance, et al. v. Spencer County Public School, et al., 231 F.3d 253 (6th Cir. 2000).

▪ Student alleged she was repeatedly sexually harassed by other students during her middle and high school years, and that she continually reported the incidents to school officials.

▪ Plaintiff’s mother alleged she also wrote letters to the principal on several occasions.

▪ Mother filed a Title IX court complaint on behalf of the student, alleging the district failed to take appropriate action to address the alleged hostile environment created by peers.

▪ The jury returned verdict in favor of the plaintiff on all counts and awarded her $220,000 for Title IX violations. Defendant appealed.

▪ While this action was being litigated, the U.S. Supreme Court handed down the Davis,decision that said recipients of federal funds may be liable for damages under Title IX for peer-to-peer sexual harassment.


DELIBERATE INDIFFERENCE STANDARD CONTINUED

▪ The Sixth Circuit held the plaintiff established all three elements to support a sexual harassment claim :

▪ (1) the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school,

▪ (2) the funding recipient had actual knowledge of the sexual harassment, and

▪ (3) the funding recipient was deliberately indifferent to the harassment.

▪ The Vance decision noted the Davis case held the deliberate indifference standard is met when the conduct of the school district officials is “clearly unreasonable in light of known circumstances.”

▪ Patterson v. Hudson Area Schools, 551 F.3d 438 (6th Cir. 2009).

▪ Sixth Circuit said whether the district officials were deliberately indifferent is a factual issue for jury.


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BULLYING VERSUS FEDERALLY-PROTECTED-AREA HARASSMENT

▪ On October 26, 2010, OCR issued a Dear Colleague Letter (2010 Bullying Letter) to clarify the relationship between bullying and discriminatory harassment.

▪ The letter reminds schools that by limiting their responses to a specific application of an anti-bullying or other disciplinary policy, they may fail to properly consider whether the student misconduct also resulted in discrimination.

▪ For federal-area harassment OCR requires schools to notify victims of outcome of the complaint.

▪ 2 or more sets of forms may need to be completed.


CYBERBULLYING

▪ Shanley v. Northeast Ind. School District, 462 F.2d 7960 (5th Cir. 1972) at 15.

▪ To impose discipline for off-campus conduct or cyberbullying, schools must find a nexus to the school environment.

▪ First Amendment

▪ Jurisdictional issues

▪ Must balance the legal rights of the perpetrator of bullying or harassing with the school’s interest in maintaining a school atmosphere free of substantial disruption.


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OFF-CAMPUS MISCONDUCT DISCIPLINE

▪ Wisniewski v. Weedsport Central School District, 494 F.3d 34 (2nd Cir. 2007).

▪ Student used a home computer to send messages to friends with a drawing suggesting the student’s eighth grade teacher be shot, although the message was not sent from a school computer the court upheld school discipline.

▪ The court found the student should have reasonably foreseen the message would come to the attention of school authorities and create disruption within the school, and upheld the discipline.


OFF-CAMPUS MISCONDUCT DISCIPLINE OVERTURNED

▪ J.C. v. Beverly Hills Unified School District, 711 F.Supp.2d 1094 (C.D. Cal. 2010).

▪ A federal district court ruled the school’s suspension of a student who created a vulgar derogatory video about another student off-campus and posted it from her home computer on YouTube violated the perpetrator’s First Amendment free speech rights.

▪ The court did not find any evidence that the video either caused, or was reasonably likely to cause, a “material and substantial” disruption of the educational process.

▪ A perpetrator met students at a restaurant where she videotaped a conversation during which other students made vulgar and derogatory remarks about a third student.

▪ School officials admitted students could access the video at school on their cellphones if they had internet capability.

▪ According to the evidence, maybe 15 students discussed the video at school. There was no evidence that this disrupted classroom activities.


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OFF-CAMPUS MISCONDUCT DISCIPLINE OVERTURNED CONTINUED

▪ The court noted the Tinker substantial disruption standard applies to both on-campus and off-campus speech, noting the geographic origin of the speech is immaterial if the speech causes actual disruption at school.

▪ No substantial disruption to school activities, nor was there a reasonably foreseeable risk for substantial disruption.


OCR Q&A 2014

▪ If the alleged misconduct took place in the context of an education program or activity of the school, the fact that the alleged misconduct took place off campus does not relieve the school of its obligation to investigate the complaint as it would investigate a complaint of sexual violence that occurred on campus. U.S. Department of Education Questions and Answers on Title IX and Sexual Violence (April 29, 2014) p. 29.

▪ A school must process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity.


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OCR Q&A 2014 CONTINUED

▪ A school must consider the effects of the off-campus misconduct when evaluating whether there is a hostile environment on campus, or in an off-campus education program or activity because

▪ Students often experience the continuing effects of off-campus sexual violence while at school or in an off-campus education program or activity.


BULLYING EFFECTS ON STUDENTS WITH DISABILITIES

▪ October, 2014 Dear Colleague Letter

▪ Bullying can also result in a free appropriate public education (FAPE) violation under the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973. Letter from Catherine Lhamon, U.S. Department of Education, Assistant Secretary of Civil Rights to Colleagues: Bullying and Students with Disabilities (October 21, 2014)

▪ OCR says rather than administrators making a decision as to what measures the school district needs to take to remedy any ill effects of its finding of bullying or harassment, this decision must be made by the Section 504 or IEP team.


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BULLYING EFFECTS ON STUDENTS WITH DISABILITIES

▪ OCR says are no hard and fast rules regarding how much of a change in academic performance or behavior of child is necessary to show some adverse effect that must be remedied by the school due to bullying or harassment.

▪ The October, 2014, Dear Colleague Letter tells the school to look for a sudden decline in grades, the onset of emotional outbursts, an increase or intensity of behavioral interruptions, or a rise in missed classes or IDEA services.


BULLYING EFFECTS ON STUDENTS WITH DISABILITIES CONTINUED

▪ Generally, the IDEA and Section 504 regulations direct the school district to provide specialized services and placement based on the child’s school-related problems that result from the child’s disabling condition.

▪ The bigger legal problem is the decisions of the IEP and 504 teams are subject to due process complaint procedures.


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BULLYING EFFECTS ON STUDENTS WITH DISABILITIES CONTINUED

▪ If parents don’t like the remedy the team puts in the IEP or Section 504 plan, this can be challenged in a due process hearing.

▪ Thus, OCR has created a new area for parents to litigate as denial of FAPEunder the IDEA or Section 504.


ACTUAL NOTICE VERSUS SHOULD HAVE KNOWN STANDARDS

▪ In both the Gebser, and Davis, Supreme Court decisions the court held damages are not available unless a district official who has authority to institute corrective measures has actual notice.


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GEBSER AND DAMAGES

▪ Decision said because the private right of action is judicially implied, the Court had to infer how Congress would have addressed the issue of monetary damages had the action been expressly included in Title IX.

▪ “It does not appear Congress contemplated unlimited damages against a funding recipient that is unaware of discrimination in its programs.”

▪ When Congress conditions the award of federal funds under its spending power, the Court closely examines the propriety of private actions holding recipients liable in damages for violating the condition.

▪ Title IX's express means of enforcement requires actual notice to appropriate officials of the funding recipient and an opportunity for voluntary compliance before administrative enforcement proceedings can commence.


GEBSER AND DAMAGES CONTINUED

▪ Allowing recovery of damages based on principles of respondeat superior or constructive notice in cases of teacher-student sexual harassment would be at odds with that basic objective, as liability would attach even though the district had no actual knowledge of the teacher's conduct and no opportunity to take action to end the harassment.

▪ Absent further direction from Congress, the implied damages remedy should be fashioned along the same lines as the express remedial scheme.

▪ OCR’s 2001 Sexual Harassment Guidance and later guidance documents say the district is responsible for remedying harassment if a responsible school employee actually knew or, in the exercise of reasonable care, should have known about the harassment.


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GEBSER AND DAMAGES CONTINUED

▪ This standard requires the district to hold its staff members accountable for exercising diligence if they have any clue from any source that harassment may be occurring within the school district’s jurisdiction.

▪ Districts that do not train and discipline staff for failing to exercise such diligence are in dire peril of offending the OCR guidance standard.

▪ Thus, school district model harassment policies should contain language requiring all staff to report such activity to officials who have the authority to address it.


INFORMAL COMPLAINT RESOLUTION

▪ In the 2001 Sexual Harassment Guidance, OCR approves of informal avenues to address sexual harassment situations.

▪ OCR extends its own requirement beyond the Title IX regulations language, saying an informal resolution is never permitted in a sexual violence situation.

▪ Note this is not addressed in the regulation, but OCR says this must be in district policy or procedure.


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2008 ADDITION OF NOTIFICATION TO THE VICTIM OF PUNISHMENT OF THE HARASSER

▪ The 2008 Sexual Harassment: Its Not Academic OCR document says the school must notify the victim, and his or her parents depending on the age of the victim, of the outcome of its investigation and of any “punishment” imposed that directly relates to the victim, such as an order for the harasser to stay away from the victim.

▪ This requirement is not found in the Title IX regulations. Also note dictates of the Family Educational and Rights to Privacy Act must be kept in mind.

▪ February 9, 2015 Letter to Soukup – General Counsel to a college association postsecondary provision.


2008 ADDITION OF NOTIFICATION TO THE VICTIM OF PUNISHMENT OF THE HARASSER CONTINUED

▪ OCR insists it applies to k-12

▪ OCR cites 1994 amendments to the General Education Provision Act (GEPA) that nothing shall be construed to affect the applicability of Title IX or other civil rights laws.

▪ Be careful about placing too much information in the notice to the parties of the complaint outcome.

▪ Staff should not, in this document that goes to the parties to the complaint, try to label the conduct as harassment or write in commentary such as, “I don’t believe this was done maliciously”.


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OCR’S EXPANSION OF WHAT IT LOOKS FOR DURING AN INVESTIGATION

▪ OCR’s 2001 Sexual Harassment Guidance. OCR said during an investigation it would look to see if the district had taken the following three (3) actions:▪ (1) disseminated a policy prohibiting sex discrimination under Title IX and effective

grievance procedures;▪ (2) appropriately investigated or otherwise responded to allegations of sexual

harassment; and ▪ (3) taken immediate and effective corrective action responsive to the harassment,

including effective actions to end the harassment, prevent its recurrence, and, as

appropriate, remedy its effects.

▪ Following the decision recognizing a private legal cause of action for peer-to-peer harassment, many school districts used the 2001 Sexual Harassment Guidance principles as the basis for local policies and procedures for addressing harassment complaints.


FEDERAL TITLE IX REGULATIONS

▪ The Title IX regulations are found at 34 C.F.R § 106, et seq.

▪ They apply to recipients of federal funding.

▪ The federal Title IX regulations generally provide for the following:

▪ Remedial action

▪ Affirmative action

▪ Self-evaluation

▪ Availability of self-evaluation and related materials.


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OCR’S 2014 QUESTIONS AND ANSWERS ON TITLE IX AND SEXUAL VIOLENCE

▪ OCR now expects policies and procedures to address the following six (6) elements: ▪ (1) notice to students, parents of elementary and secondary students, and employees of

the grievance procedures, including where complaints may be filed; ▪ (2) application of the grievance procedures to complaints filed by students or on their

behalf alleging sexual violence carried out by employees, other students, or third parties; ▪ (3) provisions for adequate, reliable, and impartial investigation of complaints, including

the opportunity for both the complainant and alleged perpetrator to present witnesses and evidence;

▪ (4) designated and reasonably prompt time frames for the major stages of the complaint process;


OCR’S 2014 QUESTIONS AND ANSWERS ON TITLE IX AND SEXUAL VIOLENCE CONTINUED

▪ (5) written notice to the complainant and alleged perpetrator of the outcome of the complaint; and

▪ (6) assurance that the school will take steps to prevent recurrence of any sexual violence and remedy discriminatory effects on the complainant.


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2011 ADDITION OF SCHOOL INVESTIGATION EVIDENCE STANDARD

▪ In the 2011 Sexual Violence Letter, OCR added another requirement for addressing sexual harassment that does not appear in the Title IX regulations, namely:

▪ (1) A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination

▪ 2011 Sexual Violence Letter was directed toward institutions of higher education. However, OCR takes the view that it also applies to elementary and secondary schools receiving federal funds.


ADDITIONAL OCR GUIDANCE EXPANSION SINCE 2014

▪ OCR now insists districts not allow only law enforcement officers to complete the district investigations into complaints of federally-protected-area harassment.

▪ OCR says even if a criminal investigation is ongoing, a school must still conduct its own Title IX investigation.


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ADDITIONAL OCR GUIDANCE EXPANSION SINCE 2014 CONTINUED

▪ The District Title IX Coordinator must be informed of all reports and complaints raising Title IX issues, even if the report or complaint was initially filed with another individual or office or if the investigation will be conducted by another individual or office.

▪ If a school designates more than one Title IX Coordinator, the school’s notice of nondiscrimination and Title IX grievance procedures should describe each coordinator’s responsibilities, and one coordinator should be designated as having ultimate oversight responsibility.

▪ The Title IX regulation requires only that a school district have a Title IX coordinator.



▪ OCR says certain elements must be in a school’s harassment grievance policy or procedure, stating some are “mandatory obligations”:

▪ (1) a statement of the school’s jurisdiction over Title IX complaints;

▪ (2) adequate definitions of sexual harassment (which includes sexual violence) and an explanation as to when such conduct creates a hostile environment;

▪ (3) reporting policies and protocols, including provisions for confidential reporting;


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▪ (4) identification of the employee or employees responsible for evaluating requests for confidentiality;

▪ (5) notice that Title IX prohibits retaliation;

▪ (6) notice of a student’s right to file a criminal complaint and a Title IX complaint simultaneously;

▪ (7) notice of available interim measures that may be taken to protect the student in the educational setting;

▪ (8) the evidentiary standard that must be used (preponderance of the evidence) (i.e., more likely than not that sexual violence occurred) in resolving a complaint;

▪ (9) notice of potential remedies for students;

▪ (10) notice of potential sanctions against perpetrators; and

▪ (11) sources of counseling, advocacy, and support. No portion of this document is to be reproduced or shown without the express permission of Teresa T. Combs .


▪ In addressing a recent OCR complaint resolution in Kentucky, OCR insisted that all of the above be put into the school district’s sexual harassment policy or procedures.

▪ While OCR notes one school district policy may cover all areas of federally-protected-area harassment, to date in Kentucky, it is requiring these 11 elements only in the sexual harassment ones.


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UNHAPPY CONCLUSION

▪ School districts are currently at the mercy of the whims of federal agency bureaucrats, with the threat of loss of federal funding hanging over their already cash-strapped heads.

▪ School district staff cannot rely on longstanding OCR interpretations of its own regulations, or even on the clear language of federal regulation or U.S. Supreme Court opinions.

▪ This makes it virtually impossible to keep school districts in compliance with OCR requirements in policy development and program implementation.


BULLYING & CYBERBULLYING · application of an anti-bullying or other disciplinary policy, they may...

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