Maree Sneed, Partner Esther Haley Walker, Associate December 2013.

Maree Sneed, PartnerEsther Haley Walker, Associate

December 2013

www.hoganlovells.com 2

AgendaI. Background

a) What is Harassment?b) What are the Risks if My School District Fails

to Address Harassment?c) Context: OCR Enforcement under the Obama

Administration & the U.S. Commission on Civil Rights Sept. 2011 Report

II. How to Investigate Allegations of Harassment

III. How to Write an Effective Investigation Report

IV. Putting Theory into Practice

V. How to Remediate Incidents of Harassment

www.hoganlovells.com

Learner Objectives

The learner will:

1) Review how to identify various types of

harassment.

2) Review the key steps in conducting an

investigation.

3) Learn the key components of an investigation

report.

4) Practice writing a model report.


Why are Our Learner Objectives Important?• Relatively recent developments have made our

learner objectives more important than ever: – U.S. Department of Education’s Office for Civil Rights

(“OCR”) Letter on Bullying and Harassment (October 26, 2010)

– U.S. Department of Education’s OCR Letter on Sexual Violence (April 4, 2011)

– U.S. Commission on Civil Rights Report (September 2011)

– OCR Report to the President and Secretary of Education (FY 2009-2012)

***October is Bullying Prevention Month***


OCR Letters: Bullying and Harassment

• On October 26, 2010, OCR issued a guidance letter on bullying and harassment.

The letter responds to recent, high-profile instances of bullying and harassment that led to student suicides and OCR’s year- long review of federal antidiscrimination statutes, regulations, and case law.

• On April 4, 2011, OCR issued a guidance letter on sexual violence and harassment to clarify the requirements for, among others, adequate grievance procedures.


OCR Letters: Bullying and Harassment

• On April 24, 2013, OCR reiterated that federal law prohibits retaliation against those who report harassment.

• On June 25, 2013, OCR issued a guidance letter addressing harassment of pregnant students.

• August 20, 2013, OSERS issued a guidance letter on addressing school districts’ responsibilities under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., when students with disabilities are bullied or engage in bullying.


OCR Letter: Bullying and Harassment

• The 2010 letter warns that school districts that fail to appropriately identify, thwart, and remedy bullying and harassment risk violating federal civil rights laws and losing federal funds.

“[S]ome student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by [OCR].”

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OCR Letter: Bullying and Harassment

“ED releases bullying-prevention toolkit for teachers”

-Education Daily

“Help Stop Bullying, U.S. Tells Educators”

-The New York Times

“Education Department Cracks Down on Bullying”

-ABCNews.com

“Facebook to beef up efforts to curb bullying”

-The Washington Post

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Sexting and Cyberbullying

• The fastest growing and most difficult-to-monitor forms of bullying and harassment are sexting and cyberbullying.

• With increasing frequency, we hear

horrible stories about students who

have been victimized by their fellow

students through sexting or

cyberbullying. These students are

often prevented from learning or worse…


Sexting and CyberbullyingSexting and Cyberbullying in the news…

• Fourteen-year-old Buffalo boy, Jamey Rodemeyer killed himself after being tormented for the past 12 months by cyberbullies for being gay – “JAMIE IS STUPID, GAY FAT ANND [sic] UGLY. HE MUST DIE!”

“Teenager struggled with bullying before taking his life”

“No one in my school cares about preventing suicide, while you're the ones calling me [gay slur] and tearing me down.”-Jamey Rodemeyer

BuffaloNews.com, Sandra Tan (Sept. 20, 2011)


Sexting and CyberbullyingSexting and Cyberbullying in the news…

•A basketball player in Tulsa, Oklahoma was restrained in a locker room in November 2012, while other students took a picture of her in her underwear – they posted the photos on Twitter, and most of the student body saw the photos through re-tweets. The young woman’s mother sued the school district.

--Tulsa, News On 6


Sexting and Cyberbullying“Parents, beware of bullying on sites you've never seen”

“Why aren't you dead?”

“You should die.”

“Wait a minute, why are you still alive?”

“Go kill yourself.”

Two girls, ages 12 and 14 sent the above text via newer, lesser-known apps called Ask.fm and Kik; they have been charged with felony aggravated stalking after their 12-year old target jumped to her death in September.

(CNN, Oct. 18, 2013)


Recent Documentaries and Books Addressing Bullying

• Bullied (http://www.tolerance.org/bullied)– A 40-minute documentary film chronicling one student’s ordeal

with bullies, focusing on sexual orientation.

• Bully (http://thebullyproject.com/)– A 94-minute documentary film telling the stories of multiple

children in the United States and describing a growing movement to combat bullying behavior.

– Opened in spring 2012; DVD and teacher toolkit now available.

– CNN is running a documentary called “The Bully Effect” about the families profiled in Bully.

• Sticks and Stones, by Emily Bazelon– A parent, lawyer, and journalist attempts to tell a nuanced story,

one that addresses both the bullied and the bully. 13


--American Association of University Women, “Crossing the Line: Sexual Harassment at School” (Nov. 2011).


Why are Our Learner Objectives Important?

In response to OCR’s letter and the increasing

intensity of sexting, cyberbullying, and other forms of

harassment school districts must take steps to protect

their students and themselves. In particular, districts

must ensure they have policies and procedures in

place for:– How to identify harassment;– How to investigate allegations of harassment;– How to write an effective investigation report; and– How to remediate incidents of harassment.


I. Background


a) What is Harassment?


Pop Quiz

• When peer-to-peer bullying occurs in the school environment, it always results in a violation of the federal civil rights statutes?

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Pop Quiz

• FALSE

– As we will review, the federal civil rights laws are implicated only when peer-to-peer bullying is on the basis of a protected category and rises to the level of harassment.

– The investigating, interviewing and report-writing skills you learn today are transferrable to other school violations, including zero-tolerance bullying policies or state law requirements.

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The Universe of Bullying & Harassment

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What is Bullying?

• Connecticut Legislature took action in 2002 (Public Act 02-119) to address bullying public schools, and amended the law in 2011 (Public Act 11-232, “An Act Concerning the Strengthening of School Bullying Laws”).


What is Bullying? • How does Connecticut law define bullying?

– The repeated use by one or more students of a written, oral, or electronic communication, such as cyberbullying, directed at or referring to another student attending school in the same school district; OR

– A physical act or gesture by one or more students repeatedly directed at another student attending school in the same school district, that: • Causes physical or emotional harm or damage to the student's property;

• Places the student in reasonable fear of harm to himself or herself, or of damage to his or her property;

• Creates a hostile environment at school for the student;

• Infringes on the rights of such student at school; or

• Substantially disrupts the education process or the orderly operation of a school.


What is Bullying?

• How does Connecticut law define cyberbullying?– Bullying through the use of devices that transmit signals,

text, images, or sound, such as:• mobile electronic devices

Examples: cell phones, iPads, iPhones, laptops, or pagers

• the InternetExamples: chat rooms, instant messaging, or social

networking

websites

• Is one action enough to qualify as bullying or cyberbullying?– NO – under Connecticut law, bullying requires “repeated”

written, oral or electronic communication.


What is Bullying?

The Toolkit

New resources to help prevent bullying are available from the U.S. Department of Education’s Office of Safe and Healthy Students, in collaboration with the National Education Association and American Federation of Teachers at http://safesupportiveschools.ed.gov/index.php?id=1480

AND

Be More Than a Bystander at http://www.stopbullying.gov/respond/be-more-than-a-bystander/index.html


What is Bullying?

• How is bullying or cyberbullying different from harassment?– Harassment is only a small part of the larger universe of

bullying or cyberbullying activity.


The Universe of Bullying & Harassment

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What is Harassment? OCR enforces the following statutes, among others:

Title VI of the Civil Rights Act of 1964– Prohibits discrimination on the basis of race, color, or

national origin

Title IX of the Education Amendments of 1972– Prohibits discrimination on the basis of sex

Section 504 of the Rehabilitation Act of 1973 and Title II of the

Americans with Disabilities Act– Prohibits discrimination on the basis of disability


What is Harassment? In general

What constitutes “harassment” under these civil rights laws?

• Basically the same legal elements across the board. The misconduct: – (1) Nexus to school; – (2) Based on a protected category – (3) Sufficiently severe or pervasive to create a hostile

environment – (4) Deliberate indifference—a responsible school official had

sufficient knowledge and failed to act.


What is Harassment?

What constitutes “harassment”?

OCR Letter

“Harassing conduct may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating. ”

“Harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. ”

“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.”



• Commonly see three basic types of harassment:

– Sex / race / disability motivated violence;

– Sexual harassment (unwelcome conduct of a sexual nature, including advances, requests for sexual favors, and other verbal and nonverbal conduct of a sexual nature);

– Sex / race / disability stereotyping, mocking, and verbal attacks or shunning or otherwise biased conduct.

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A recent study found that during the 2010/2011 school year:

56% girls

40% boys

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Reported being sexually harassed in class and/or over the Internet

--American Association of University Women, “Crossing the Line: Sexual Harassment at School” (Nov. 2011).


What is Harassment? The nexus to school. Caselaw (private suits)

• The “harassment must take place in a context subject to the school district’s control”– That is, subject to the

authority, direction, or supervision of the school.

ED’s DCL Guidance

• “Schools may have an obligation to respond to student-on-student sexual harassment that initially occurred off school grounds, outside a school’s education program or activity.” – For example, school must

process all complaints.– Off-campus conduct may

inform evaluation of on-campus conduct.

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What is Harassment? Defining “on the basis of” Caselaw (private suits)

• Often it will be obvious that the harassment is on the basis of a protected category.

• Unclear whether name-calling without a biased-motive suffices.– On August 9, 2011, the 8th

Circuit held that Title IX requires proof of sex-based motivation.

ED’s DCL Guidance

• “Harassing conduct may take many forms, including verbal acts and name-calling; graphic and written statements, which may include the use of cell phones or the internet; or other conduct that may be physically threatening, harmful, or humiliating. Harassment does not have to involve intent to harm. . . .”

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What is Harassment? Defining “hostile environment.” Caselaw (private suits)

• The harassment must be “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

– More is required than simple acts of teasing and name calling, even when based on a protected category.

ED’s DCL Guidance

• “[W]hen 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 the school.”

– Suggests that anxiety at school and declining class participation may be sufficient.

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What is Harassment? The requisite level of knowledge. Caselaw (private suits)

• School officials “with the authority to take corrective action to end the discrimination” must have actual knowledge of the conduct.

ED’s DCL Guidance

• A school must address harassment incidents “about which it knows or reasonably should have known.” – A school has such notice

where a “responsible employee knew, or in the exercise of reasonable care should have known about the harassment.”

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What is Harassment? School officials’ response. Caselaw (private suits)

• “Deliberate indifference,” which must at a minimum make students liable or vulnerable to peer-to-peer harassment. – The Supreme Court has

rejected the contention that a particular remedy is required (e.g., expulsion) and cautioned courts not to second-guess the disciplinary decisions of school administrators.

ED’s DCL Guidance

• “[A] school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.” – The 2010 DCL requires

“immediate and appropriate action to investigate”; the 2011 outlines remedies.

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What is Harassment? OCR standards should be your guide.

• Some commentators have attacked the OCR’s 2010 DCL for overreaching. – For example, the General Counsel of the National School Boards

Association stated: “From a legal perspective, OCR has opted to adopt a stricter agency enforcement standard, even though the liability standard under federal laws handed down in Davis very clearly limits a school district’s legal obligations . . . .”

• ED has stated that its 2010 DCL is “consistent” with the standard applied by the courts and in any case explained that it may take a more aggressive stance as regulator.

• Bottom line – follow OCR’s standards or risk enforcement.


What is Harassment?

• What are some examples of the types of bullying and harassment about which school districts should be concerned?

• The OCR letter includes the following hypothetical examples.


What is Harassment?“Some students anonymously inserted offensive notes into African-American students’ lockers and notebooks, used racial slurs, and threatened African-American students who tried to sit near them in the cafeteria. Some African-American students told school officials that they did not feel safe at school. The school investigated and responded to individual instances of misconduct by assigning detention to the few student perpetrators it could identify. However, racial tensions in the school continued to escalate to the point that several fights broke out between the school’s racial groups.”

Is this harassment? If so, what type of harassment?


What is Harassment?

“Shortly after enrolling at a new high school, a female student had a brief romance with another student. After the couple broke up, other male and female students began routinely calling the new student sexually charged names, spreading rumors about her sexual behavior, and sending her threatening text messages and emails. One of the student’s teachers and an athletic coach witnessed the name calling and heard the rumors, but identified it as ‘hazing’ that new students often experience. They also noticed the new student’s anxiety and declining class participation. The school attempted to resolve the situation by requiring the student to work the problem out directly with her harassers.”



What is Harassment?

NEW GUIDANCE•OCR released guidance in June 2013 – harassment of pregnant students is covered by Title IX.

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“Harassing conduct can take many forms, including verbal acts and name-calling, graphic and written statements, and other conduct that may be humiliating or physically threatening or harmful. Particular actions that could constitute prohibited harassment include making sexual comments or jokes about a student’s pregnancy, calling a pregnant student sexually charged names, spreading rumors about her sexual activity, and making sexual propositions or gestures. Schools must take prompt and effective steps reasonably calculated to end pregnancy related harassment, prevent its recurrence, and eliminate any hostile environment created by the harassment. The school violates Title IX if sexual harassment or other pregnancy-related harassment by employees, students, or third parties is sufficiently serious that it interferes with a student’s ability to benefit from or participate in the school’s program, and the harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.” -- ED, Supporting the Academic Success of

Pregnant and Parenting Students


What is Harassment?

“Several classmates repeatedly called a student with a learning disability ‘stupid,’ ‘idiot,’ and ‘retard’ while in school and on the school bus. On one occasion, these students tackled him, hit him with a school binder, and threw his personal items into the garbage. The student complained to his teachers and guidance counselor that he was continually being taunted and teased. School officials offered him counseling services and a psychiatric evaluation, but did not discipline the offending students. As a result, the harassment continued. The student, who had been performing well academically, became angry, frustrated, and depressed, and often refused to go to school to avoid the harassment.”



What is Harassment?

--Dignity Now: The Campaign to Stop Bullying and

Bias-Based Harassment in New York City Schools



What is Harassment? OCR has limited jurisdiction to deal with religion.

• Title VI prohibits discrimination on the basis of race, color, or national origin. Therefore, Title VI does not prohibit discrimination on the basis of religion. – (DOJ can enforce religion-based discrimination under Title

IV)

• OCR and DOJ take the position that Title VI prohibits discrimination on the basis of actual or perceived ancestry or ethnic characteristics, regardless of whether those groups share a common faith.– Title VI therefore reaches harassment targeting students

based on their membership in groups that exhibit both ethnic and religious characteristics.

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What is Harassment?

“A female high school student was spit on, slammed into lockers, mocked, and routinely called names because she did not conform to feminine stereotypes and because of her sexual orientation. The student had short hair, a deep voice, and wore male clothing. After the harassment started, she told some classmates she was a lesbian, and the harassment worsened. The school described the harassment as ‘sexual orientation harassment’ in its incident reports and did not take any action.”

--StopBullying.gov



What is Harassment? OCR has limited jurisdiction to deal with sexual orientation.

• Title IX does not prohibit discrimination on the basis of sexual orientation.

• But Title IX does protect all students – regardless of actual or perceived sexual orientation – from sex-based discrimination and harassment. – Title IX prohibits harassment of students for exhibiting

stereotypical characteristic for their sex or for failing to conform to such stereotypes.

– Title IX prohibits sexual harassment regardless of whether the harasser and the victim share the same gender.

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What is Harassment? Pitfall: Off-campus speech and free speech generally.

• Though not the focus of this session, bullying and harassment – particularly cyberbullying that occurs off-campus – raises thorny First Amendment problems.

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Two big issues:•(1) For off-campus speech: Is there a sufficient nexus to school?

– Courts typically apply the Tinker test. (School can regulate conduct causing a “substantial disruption of or material interference with school activities.”)

•(2) For on-campus speech: Drawing the line between protected opinions, discussions or commentary that may be offensive on the one hand and harassment on the other.

– Fact-intensive question, often resolved under the severe and pervasive rubric.

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Key points for our purposes: •In some cases, off-campus speech will clearly bleed onto campus and create a substantial disruption.

•Off-campus speech can indicate on-campus activities and can be used in investigations to identify on-campus harassment.

•Tread carefully.

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When does bullying or harassment become a criminal act?

• Consider whether to alert local law enforcement authorities if activities include the following:– Assault and Battery – engaging in activities designed to

cause physical injury to another person, resulting in an injury to the target or a third person (Conn. Gen. Stat. § 53a-61(a))

– Larceny – taking another person’s property intentionally and withholding it from its owner (Conn. Gen. Stat. § 53a-119)

– Sexting/child pornography possessed by a student – possessing or sending such pornography on a computer or mobile phone (Conn. Gen. Stat. § 53a-196h)

– Threats – engaging in physical threats that intentionally place or attempt to place another person in fear of imminent serious physical injury (Conn. Gen. Stat. § 53a-62(a))

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When does bullying or harassment become a criminal act?• Consider whether to alert local law enforcement

authorities if activities include the following: (continued)

– Bias and Bigotry (aka “Hate Crimes”) – intentionally intimidating or harassing another person (or group) by damaging/destroying/defacing property or threatening to do because of actual or perceived:• race• religion• ethnicity• disability• sexual orientation • gender identity or expression

Note: If a person advocates or urges others to do these activities, they may face consequences if there is reasonable cause to believe others will carry out these actions.

(Conn. Gen. Stat. § 53a-181l)

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When does bullying or harassment become a criminal act?Straight from the headlines . . .

Felony Charges for 2 Girls in Suicide of Bullied 12-Year-Old

“Two girls, 12 and 14, have been charged with aggravated stalking, a third-degree felony, in the death of a 12-year-old girl who committed suicide last month after being repeatedly bullied in person and online. . . . “Yes, I bullied Rebecca and she killed herself and I don’t give a,” said the 14-year old on Facebook on October 12.

--The New York Times, October 15, 2013

Bullying Attack Leaves Boy in Coma“A Pennsylvania boy is currently in a medically induced coma after a schoolyard fight with classmates who he and his family claims were bullying him.”

--ABC News, February 7, 2013

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b) What are the Risks?


What are the Risks?

• What are the risks if my district fails to appropriately identify, investigate, and remedy incidents of bullying and harassment?– The 2010 OCR letter signals that OCR will (1) monitor, (2)

investigate, and (3) penalize school districts that fail to respond appropriately to bullying and harassment.

– School districts that fail to appropriately address harassment are also at risk of litigation by the U.S. Department of Justice (“DOJ”) and private lawsuits brought by students or their parents.

– National Center for Higher Education Risk Management estimates the average award from sexual assault cases decided by a jury is about $200,000.


What are the Risks?

(1) OCR is now monitoring school districts’ responses to bullying and harassment.

Civil Rights Data Collection (“CRDC”)• Mandatory survey through which OCR collects civil rights data directly

from school districts via a web-based collection tool.• OCR implemented certain changes to its data collection.

– All districts participate in the CRDC (instead of only a representative sample).

– Data is being collected only for one school year (not for two years, as in the past).

– Data will next be collected in fall 2014 (for the 2013-2014 school year).

– Race will be reported using the 7 race/ethnicity categories (instead of having a choice between using 5 or 7).


What are the Risks?

• As with the 2011/2012 data collection, school districts must collect and report data about allegations of bullying and harassment, bullying and harassment policies, and students disciplined for bullying and harassment.

• Types of Data Collected in the 2011/2012 CRDC:– Reported Allegations of Harassment or Bullying– Students Reported to have been Harassed or Bullied– Students Disciplined for Harassment or Bullying

• The CRDC materials describe harassment or bullying on the basis of (i) disability, (ii) race, color, national origin, and (iii) sex.


What are the Risks?

• As a result, OCR will have a database that will assist it in conducting compliance reviews and investigations of bullying and harassment.

• The CRDC website allows the public to view data for specific schools and districts, and compare data across multiple schools or districts.


What are the Risks?

(2) OCR will investigate school districts’ responses to

bullying and harassment.

• OCR can investigate school districts through:– (a) the complaint process; or– (b) compliance reviews.


What are the Risks?

Complaint process:

– Persons or organizations who believe there has been a violation of the civil rights laws enforced by OCR may file complaints. The person or organization may be a victim of the alleged discrimination or may complain on behalf of another person or group.

– OCR receives thousands of complaints each year.

Between 2009 and 2012, OCR received 24% more cases than in the prior four-year period.


What are the Risks?

--OCR, FY 2009-2012 Report


What are the Risks?



What are the Risks?

• Although 54% of complaints may have been based on disability, only some of those were based specifically on harassment or bullying.


Number of Harassment Complaints Presented to OCR, FY 2009-2012

Race/ethnicity = 1,689

Disability = 1,513

Sex = 1,137


What are the Risks? – OCR evaluates each complaint received to determine whether

it can investigate (e.g. whether the allegations constitute a complaint and whether OCR has legal authority to investigate, etc.).

– A complaint must be filed within 180 calendar days of the alleged discrimination. If it is not, a waiver must be requested by the complainant, and OCR can determine whether or not to grant the waiver.

– If OCR determines that it will investigate, it issues letters of notification to the complainant and the school district. Opening a complaint does not mean that OCR has made a determination on the merits. During the investigation OCR acts as a neutral fact-finder.

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What are the Risks?

– The parties may engage in “Early Complaint Resolution” (ECR) – it facilitates the voluntary resolution of complaints by providing an early opportunity for the parties to resolve the allegations with the help of OCR as a facilitator (if requested by the parties).

– OCR staff serving as facilitators will not investigate the complaint as well (if possible).

– If the parties resolve the issue, OCR will obtain a copy of a document stating that the allegation has been resolved (signed by the complainant), or a copy of a settlement agreement.

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What are the Risks?

– REVIEW: If the issues are not resolved through Early Complaint Resolution, OCR will make a finding of noncompliance with Title VI, Title IX, Section 504, or Title II, if OCR determines that:

• The district had control over the harassment;• The district knew or should have known about the

harassment;• The harassment was “encouraged, tolerated, not

adequately addressed, or ignored” by district employees; and

• The harassment created a hostile environment in that the conduct was “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.”

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What are the Risks? – If OCR identifies areas of noncompliance, the district is given

an opportunity to negotiate an agreement.

– If the district refuses to negotiate an agreement, OCR gives the district 30 days to agree to resolve voluntarily the identified areas of noncompliance.

– If the district continues to refuse, OCR will issue a Letter of Finding to the district providing a factual and legal basis for the finding of noncompliance.

– If the district continues to refuse to resolve the complaint, OCR will issue a Letter of Impending Enforcement Action, and again attempt to obtain voluntary compliance.

– If the district still remains unwilling to cooperate, OCR may penalize the district as described later in this section.

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What are the Risks? Compliance reviews:

– OCR also has the authority to proactively initiate compliance reviews.

– According to OCR, “[c]ompliance review sites are selected based on various sources of information, including information provided by parents, education groups, media, community organizations, and the public, and, in certain circumstances, on statistical data, to the extent they are supported by other sources of information.”

– OCR will likely use new information on bullying and harassment gathered through the CRDC to inform its decisions about which school districts will receive compliance reviews.


What are the Risks?

Topics addressed include:– Sexual violence at K-12 level;– Bullying and harassment;– Food allergies; and– Disproportionate discipline rates.

OCR launched more than 100 compliance reviews from 2009-2012


What are the Risks?

(3) Districts that fail to respond appropriately to harassment risk:– (a) OCR penalties, – (b) lawsuits by DOJ, and – (c) private litigation.


What are the Risks?

OCR Penalties• Generally, once OCR determines through the complaint

process or through a compliance review that a violation of Title VI, Title IX, Section 504, or Title II has occurred, OCR will enforce compliance with those civil rights laws through one of the following mechanisms:– monitoring of complaint,– compliance review resolution agreement,– providing technical assistance,– placing conditions upon or terminating grants, or– referral to the DOJ for enforcement.


What are the Risks?

• During a teleconference with school districts and stakeholders about OCR’s letter on bullying and harassment, Russlynn Ali, the former Assistant Secretary for OCR, explained that OCR plans to work collaboratively with districts that fail to respond appropriately to bullying and harassment.

• According to Ali, if that collaboration fails, OCR is prepared to place conditions upon or terminate districts’ federal grants or refer districts to the DOJ.

**Ali left at the end of November 2012; it is unclear if the new Assistant Secretary Catherine Lhamon will hold similar views.**


Example of a DOJ/OCR Settlement

• OCR and DOJ “proactively initiated” an investigation to examine whether the West Contra Costa Unified School District in Richmond, California was promptly and effectively responding to sexual harassment and sexual violence.

• ED announced the resolution agreement November 6, 2013.

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“I am dismayed by the prevalence of sexual harassment and assault occurring at elementary and secondary schools in West Contra Costa,” said Catherine E. Lhamon, assistant secretary for civil rights. “Although the district frequently reported known incidents of sexual assaults to law enforcement for prosecution, the district did not fully comply with its legal obligations under Title IX to take immediate actions to eliminate the harassment, prevent its recurrence, and address its effects, and to put proper procedures and protocols in place. OCR stands ready to work with the district to help it realize its commitments to preventing sexual harassment and sexual violence in its schools through satisfaction of this agreement.”



• The District agreed to:– Designate a Title IX coordinator and ensure that grievance procedures comply with Title IX requirements; – Hire a consultant with expertise in the area of sexual harassment prevention and training; – Revise its policies, procedures, and practices for preventing, promptly investigating, and remediating sexual harassment and sexual

violence;– Develop guidance to help ensure the effectiveness of remedial actions and conduct annual assessments of the climate at district

schools to evaluate the effectiveness of the actions being taken, the students’ attitudes, knowledge and experiences around sexual harassment, and to inform future proactive steps to ensure a safe environment for students;

– Take interim measures to ensure the safety of victims, reporting students and the school community; and address any ongoing harassment and prevent retaliation;

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• The District agreed to (continued):– Create a task force composed of parents, students, community members and representatives of community-based organizations to identify strategies

to improve the school climate, and prevent sexual harassment and sexual violence;

– Develop a comprehensive plan for educating students, parents and employees to ensure that they are aware of Title IX’s prohibition against sex discrimination, including the right to be protected from sexual harassment; how to recognize it when it occurs and how to report incidents. The plan will take into account the results of the climate assessments and recommendations of the task force;

– Provide annual training to all district staff and school resource officers and age-appropriate instruction to students;

– Increase supervision of students at school sites and at all school-sponsored after-school activities, whether held on campus or off campus;

– Implement systems for tracking reports that may constitute sexual harassment, even when no formal complaints are filed, to ensure that incidents are promptly and impartially investigated and resolved; and assess the effectiveness of its efforts to prevent and address sexual harassment and sexual violence.

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What are the Risks?

DOJ Lawsuits

• If OCR determines that a violation of federal antidiscrimination laws has occurred, and the district refuses to resolve the violation, OCR may refer the case to DOJ.

• DOJ will investigate and, exercising its prosecutorial discretion, determine whether or not to initiate litigation against the district.


What are the Risks?

Private Litigation

• Students (and parents on behalf of their children) have a private right of action under Title IX, Title VI, Section 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act.

• Therefore, students and their parents may sue school districts for money damages when those districts fail to adequately address harassment in violation of these federal antidiscrimination laws.

**From the headlines: Recently in Missouri, a state court permitted a plaintiff to proceed with a state tort claim for student-on-student harassment (and thought Title IX was no bar to the state law claim).**


What are the Risks?

• Review: To hold a school district liable for its failure to prevent sexual or racial harassment (under Title IX or Title VI), a student or parent must demonstrate that:– The district had “control” over the sexual or racial

harassment;– The district had actual knowledge;– The district acted with deliberate indifference; and– The sexual or racial harassment was severe, pervasive,

and objectively offensive.


c) Context: OCR Enforcement Under the Obama Administration


Context: OCR Enforcement Under Current Administration

The Secretary of Education and the Assistant Secretary for Civil Rights have stated publicly that OCR will increase civil rights enforcement efforts.


Context: OCR Enforcement Under President Obama

Secretary Duncan

“The Department of Education's Office for Civil Rights has used Title VI to promote equal access to college- and career-preparatory courses and programs and to combat school segregation, discriminatory discipline, harassment, and other barriers to equal education for students of different racial, ethnic and linguistic backgrounds.”

--Secretary's Statement on the Anniversary of the Enactment of Title VIof the Civil Rights Act of 1964July 2, 2013


Context: OCR and DOJ Are Taking Action

• For example:– Circa early 2011, after a string of seven student suicides

in another Minnesota suburban school district, four of which involved students harassed for not confirming to gender stereotypes, DOJ and OCR opened an investigation.

– During the investigation, the Southern Poverty Law Center and National Center for Lesbian Rights filed suit in federal court on behalf of six students alleging severe and pervasive gender-based harassment.

– The school district (the largest in the state) entered into a consent decree with DOJ and OCR in 2012.

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Context: OCR and DOJ Are Taking ActionA Few of the Consent Decree Requirements included:

– hire or appoint a Title IX and Equity Coordinator;– conduct training of all District faculty, staff and students on

the issue of harassment, and clarify District policies for reporting and responding to harassment;

– hire a Mental Health Consultant to assist students who are subjected to harassment;

– create an Anti-Bullying/Anti-Harassment Task Force;– administer an Anti-Bullying Survey once per year;– identify harassment “hot spots” and assign personnel to

monitor these trouble areas; and– develop peer leadership program addressing harassment.

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The U.S. Commission on Civil Rights

• The Commission studied the federal response to peer-to-peer bullying and released a report in September 2011.

• The Commission made 3 findings and offered 6 recommendations.

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Context: The U.S. Commission on Civil Rights

Findings

1. Bullying and harassment, including bullying and harassment based on sex, race, national origin, disability, sexual orientation, or religion, are harmful to American youth.

2. Current federal civil rights laws do not provide the U.S. Department of Education with jurisdiction to protect students from peer-to-peer harassment that is solely on the basis of religion.

3. Current federal civil rights laws do not protect students from peer-to-peer harassment that is solely on the basis of sexual orientation.

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Recommendations

1.The U.S. Departments of Education and Justice should track their complaints/inquiries regarding peer-to-peer harassment separately from complaints/inquiries regarding staff-to-student harassment.

2.The U.S. Departments of Education and Justice should track their complaints/inquiries regarding sexual harassment or gender-based harassment by creating a category that explicitly encompasses LGBT youth.

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Recommendations

3.The U.S. Departments of Education and Justice should track complaints that they receive regarding harassment based solely on sexual orientation that are closed for lack of jurisdiction.

4.The U.S. Department of Education should track complaints that it receives regarding harassment based solely on religion that are closed for lack of jurisdiction.

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Recommendations

5.The U.S. Department of Education should consider issuing a new Dear Colleague Letter regarding the First Amendment implications of anti-bullying, including concrete examples.

6.The U.S. Department of Education should strive to use consistent language when it articulates legal standards, such as its enforcement standards, in its Dear Colleague Letters and guidance documents. It should explain the reasons for any inconsistency.

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• In response to OCR’s increased enforcement efforts, OCR’s renewed focus on bullying and harassment, and the rise in sexting and cyberbullying, school districts should ensure that they have anti-bullying and anti-harassment policies and procedures that provide for: – Identification of incidents of harassment;– Effective investigation of allegations of harassment;– Writing effective investigation reports; and– Appropriate remediation of incidents of harassment.

Context: OCR Enforcement Under President Obama


II. How to Investigate

Allegations of Harassment


Outline

a) Importance of Investigations

b) Investigation Components

c) Tips for Effective Investigations

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How to Investigate Allegations of Harassment

Importance of Investigations• It is the right thing to do!

– Investigations are necessary to ensure equal access to education.

• Legal reasons:– A school district must be able to demonstrate to a

complaining student or parent, OCR, and/or DOJ that it has appropriately investigated and responded to all allegations of harassment.

– If a school district knows about harassment but does not do anything, its failure to act may create liability.

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• Before a complaint is made:

(1) Identify . . .– one school-level and one district-level staff member to whom reports

of harassment may be made.– staff members to serve as investigators when complaints of

harassment are received.

(2) Regularly train . . .– All school personnel to identify harassment they observe or is

reported to them.– All school personnel on district anti-harassment policies, procedures,

and complaint processes. – All investigators on the school district’s anti-harassment policies as

well as the civil rights laws enforced by OCR.

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• Before a complaint is made:

(3) Regularly review and update policies and procedures. – Connecticut’s new bullying law.– OCR guidance (Dear Colleague Letters, etc.).

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• ED’s 2011 DCL focuses on Title IX sexual violence and harassment and reinforces three points. Schools must: – (1) Disseminate an adequate notice of nondiscrimination

(age-appropriate, easily understood, and widely distributed).

– (2) Appoint and adequately train a Title IX coordinator (including on matters of sexual violence, harassment, and confidentiality).

– (3) Develop “prompt and equitable” grievance procedures.

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• Key points the 2011 DCL makes with respect to sexual violence investigations (some of which may only be appropriate in the postsecondary context): – (1) Schools “should” inform and obtain the complainant’s

parent’s consent before opening an investigation.

– (2) Generally, schools should respect a complainant’s request to remain anonymous and communicate with the complainant about the limits.

– (3) When appropriate, schools should notify a complainant of the right to file a criminal complaint and should NOT dissuade a student from doing so at any time.

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• Key points the 2011 DCL makes with respect to sexual violence investigations (continued): – (4) Schools should not wait (unless police mandate it) for

the conclusion of any criminal investigation.

– (5) Schools must use a “preponderance of the evidence” standard.

– (6) During any investigation and at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence.

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• Key points the 2011 DCL makes with respect to sexual violence investigations (continued):

– (7) The complainant and alleged perpetrator must have similar and timely access to any information used at a hearing, though not in violation of FERPA.

– (8) Resolve complaints in a reasonably prompt time-frame.

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• Key points the 2011 DCL makes with respect to sexual violence investigations (continued):

– (9) Give written notice of the outcome of the complaint and any appeal to the complainant and the alleged perpetrator.

• FERPA permits broader disclosure when it rises to the level of a non-forcible sex-offense.

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**Family Educational Rights and Privacy Act**–Federal law that protects the privacy of student education records–An “education record” is:• Directly related to a student; and• Maintained by an educational agency

Note: “Education record” does not include “[r]ecords that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.” See 34 C.F.R. § 99.3.

See generally 20 U.S.C. § 1232g; 34 C.F.R. Part 99.

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**Family Educational Rights and Privacy Act**

–A parent has the right to inspect his/her child’s education record within a reasonable time after his/her request, but no later than 45 days after the request• “If circumstances effectively prevent the parent or eligible student

from exercising the right to inspect and review the student's education records, the educational agency or institution, or SEA or its component, shall--(1) Provide the parent or eligible student with a copy of the records requested; or (2) Make other arrangements for the parent or eligible student to inspect and review the requested records.” 34 C.F.R. § 99.10.

• The school may charge for copies of the record (unless the imposition of a fee effectively prevents a parent or eligible student from exercising the right to inspect and review).

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–“If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student.” 34 C.F.R. § 99.12

–If the parent believes the education record contains inaccurate or misleading information, he or she can ask the school to amend the record and request a hearing if the school declines to amend the record. See 34 C.F.R. §§ 99.20 and 99.21.

–School officials should obtain access to only those education records in which they have legitimate educational interests. See 34 C.F.R. § 99.31.

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–Examples of circumstances when disclosure without consent is needed: • Disclosure “to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex

offense. The disclosure may only include the final results of the disciplinary proceeding conducted by the institution of postsecondary education with respect to that alleged crime or offense. The institution may disclose the final results of the disciplinary proceeding, regardless of whether the institution concluded a violation was committed.”

• Disclosure is in connection with a health or safety emergency

See 34 C.F.R. § 99.31.

–A school should maintain a record of each request for access to and each disclosure of personally identifiable information from the education records of each student. See 34 C.F.R. § 99.32.

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**Connecticut’s Freedom of Information Act**

“Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to

(1) inspect such records promptly during regular office or business hours,

(2) copy such records in accordance with subsection (g) of section 1-212, or

(3) receive a copy of such records” (photocopy, facsimile, electronic or certified copy), provided that the agency shall provide a certified copy whenever requested, and (2) the public agency shall not send the applicant an electronic or facsimile copy if the requester does not have access to such technology.”

--Conn. Gen. Stat. § 1-210.

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**Connecticut’s Freedom of Information Act**

• Important: In general, respond within four business days to a request, otherwise you will be considered to have denied the request.

See Conn. Gen. Stat. § 1-206.

Note: Fees should not exceed what it costs to the public agency to provide the copy. Detailed fee instructions appear in the statute.

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• Once a complaint has been filed, two overarching tasks: – (1) Immediately take steps to protect the alleged victim as needed.

– (2) Investigate the alleged harassment fully and promptly.

• A full investigation includes the following steps and “must always be prompt, thorough, and impartial.”

But please remember each investigation should be tailored to the unique facts, including the age, disabilities, or other sensitivities of the alleged victim, the

alleged harasser, and the witnesses.

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The Story of Tonya Tattle

Tonya Tattle reported to you that she saw racial slurs on several lockers on the main hallway at Happy High School. She says that she knows Michael Mean wrote the slurs. She saw Michael Mean in the main hallway with a can of spray paint just before fifth period ended. Tonya says Allegra Apple was just coming out of the school’s main office as Michael left the hallway and that Allegra must have seen Michael too. Each of the defaced lockers belongs to an African American or Asian American student. Michael Mean says he was dissecting a salamander with his biology lab partners during all of fifth period and was almost late to sixth period because cleaning up took so long.

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Tanya Tattle has reported that she saw racial slurs written in graffiti on several lockers in the main hallway of Happy High School. Tanya also says she knows that Michael Mean wrote the slurs.

1. Review applicable statutes, regulations, and school district policies and procedures. Follow all applicable policies and procedures throughout the investigation.

First Step: As investigator, your first step is to review your school district’s anti-harassment policies and procedures. Follow those procedures throughout your investigation!

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2. Ask the complaining student or staff member for a full narrative of the facts.

• Written complaint forms are very helpful. A written form ensures that the investigator collects all relevant information, including:– Who, what, when, where;– Race, ethnicity, and gender of victim;– Students, teachers, and other staff involved;– Witnesses to the incident; and– The specific nature of the alleged harassment.

As soon as possible, provide Tanya Tattle with a written complaint form. Check to ensure that she provides all the information above. Review her responses carefully before conducting any further interviews.

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3. Review the student/staff files of every individual allegedly involved in the incident.

• Reviewing the files will provide the investigator with key background facts that can inform his or her questioning of the victim, the alleged harasser, and witnesses.

Questions to consider when reviewing the files:• Has Tanya Tattle ever reported a similar incident in the past?• Does Tanya have a history of telling the truth?• What are the races, genders, and disability statuses of the

students whose lockers were defaced? What are the disciplinary backgrounds of those students?

• What is the race and disciplinary background of Michael Mean?

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4. Interview all alleged victims (which may or may not include the complainant).• In addition to the standard factual information listed in #2 above,

the investigator should consider asking the victim(s) the following questions:– How did you react to the harassment?

– How has the alleged harassment affected you and your experience at school?

– Are there any other students, teachers, or staff that might have relevant information?

– Do you have any notes, emails, text messages, documentation, or other physical evidence related to the incident?

– How would you like to see this situation resolved?

Be sure to interview each student whose locker was defaced.

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5. Interview the alleged harasser(s).• First, the investigator should inform the alleged harasser of the

allegations against him or her.• Next, the investigator should ask the alleged harasser about the

basic facts surrounding the incident and give the alleged harasser an opportunity to explain the reasons for his or her actions.

Note: Teachers, as union employees, have a right to union representation in any interview with disciplinary consequences.

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How to Investigate Allegations of Harassment• Finally, the investigator should consider asking the alleged

harasser the following specific questions:– What is your response to the allegations?

– (If the alleged harasser claims that the allegations are not true, are there reasons the victim might lie about such allegations?)

– Have you ever been disciplined for harassment before?

– Do you have any notes, emails, text messages, documentation, or other physical evidence related to the incident?

When interviewing Michael Mean, first carefully explain what he is being accused of doing and why. Then, you must give Michael a full opportunity to explain his side of the story and provide any evidence that might exculpate him.

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6. Interview all other witnesses.

• A full investigation includes interviews with all potential witnesses, even if the first few witnesses interviewed have provided identical information.

• Consider if there is a particular order you think you should interview the witnesses.

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•First, the investigator should explain briefly the reasons for the interview and ask whether the witness has any relevant information about the alleged incident.

•Next, the investigator should consider asking the following questions:

– Describe the alleged harasser’s general behavior toward the victim.

– What, if anything, did the victim tell you about the incident?

– Do you know of anyone else who might have relevant information?

– Are you aware whether the alleged harasser has ever engaged in similar conduct in the past?

Be sure that you have captured all potential witnesses by encouraging your interviewees to list any other students or school personnel who could possibly have information about the incident.

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7. Review the notes from the interviews.• Follow up on any factual inconsistencies. Re-interview witnesses as

necessary.

If Michael Mean says something that directly contradicts what Tanya Tattle reported to you, you must circle back with Tanya to clarify her version of the events.

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• If only a school official is conducting an interview and:

– No school resource officer is present

– No police officer is present

• If a school official is not acting at the behest of the police

• If a school resource officer or police officer joins a school official for an interview but does not ask questions

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Parental consent and/or presence is not required



• If a police officer is present and directing the questioning, the age of the student becomes significant:

– Category 1: Students under 16 years old

– Category 2: Students 16 and 17 years old

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Category 1: If a police officer is present and directing the questioning, any admission, confession or statement, written or oral, made by a child under the age of 16:

– Needs to be in the presence of a child's parent or guardian

– Must be given after the child and his/her parent or guardian have been advised:

• of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child's behalf,

• of the child’s right to refuse to make any statements, and • that any statements the child makes may be introduced into evidence

against the child.

Any admission or confession will be inadmissible in court unless the requirements above are met. See Conn. Gen. Stat. § 46B-137(a).

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How to Investigate Allegations of HarassmentCategory 2: If a police officer is present and directing the questioning, any admission, confession or statement, written or oral, made by a child 16 or 17 years old:

– reasonable efforts must be made to contact the child’s parent or guardian and

– the child must be advised:• of the right to contact a parent or guardian and to have a parent or

guardian present during any interview,• of the right to retain counsel or, if unable to afford counsel, to have counsel

appointed,• of the right to refuse to make any statement, and • of the fact that any statement made may be introduced into evidence

against him or her.

Any admission or confession will be inadmissible in court unless the requirements above are met. See Conn. Gen. Stat. § 46B-137(b).

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8. Keep the victim and his or her family informed.• Subject to the privacy requirements of the Family Educational Rights and

Privacy Act (“FERPA”), school district officials should keep victims and their families informed about the investigatory process as well as any steps the school district has taken to address the harassment.

The students whose lockers were defaced should be kept fully informed of your progress in the investigation.

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Seven Tips for an

Effective Investigation



1) Be strategic. Use your review of the relevant law and policies as a guide to what you need to find out.

2) Be consistent! Follow the same investigative processes for each harassment complaint.

3) Develop a checklist of questions before each interview.

4) Interview questions should illicit the facts but be open-ended so as to allow the interviewees to tell their side of the story.

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5) Take notes either during the interviews or immediately following the interviews. The notes should state the facts, not the investigator’s opinions.

6) Provide interviewees – whether they are the victim, a witness, or the alleged harasser – with appropriate translation services if the interviewee is an English Language Learner.



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7) One of the most difficult aspects of an investigation is determining witness credibility. When confronted with conflicting stories, consider the witnesses’:

– Character;– Prior inconsistent statements;– Bias or motive;– Demeanor; – Opportunity or capacity to observe the events; and/or– Cooperation with the investigation (or lack thereof).



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8) Ask follow-up questions if needed (“Is there anything else you think we should know?”).

Sources:

– Nicholas Fiorenza, Investigating Harassment, Printing Impressions (Mar. 2007).– Melani Kastl et al., How to Assess Credibility in Workplace Investigations, Nonprofit World

(Jan./Feb. 2005).– E. Jason Tremblay, Properly Investigating Complaints of Harassment: How to Limit a

Company’s Exposure, Business Law Today (Sept./Oct. 2008).


III. How to Write an Effective Investigation Report


Outline

a) Importance of Reports

b) Report Components

c) Tips for Writing Effective Investigation Reports



The Story of Veronica Victim

Veronica Victim tells her homeroom teacher, Tessa Teacher, that her 8th grade classmate, Bobby Bully, made sexually suggestive comments to her. Veronica explains that even after she asked him to stop, he kept making suggestive statements to her. Veronica gives Ms. Teacher an email that Bobby sent to her that includes several suggestive statements. Veronica states that she has pretended to be sick sometimes just to avoid her seventh period class with Bobby. Ms. Teacher reports the information to you.

You investigate and learn additional facts. Bobby tells you initially that he didn’t say anything to Veronica, but then says he “might” have made some comments but was “joking.” You know that Bobby has received two in-school suspensions for making sexually suggestive remarks to girls at school, and has lied to school officials twice in the past. In a meeting with Principal Patterson, Harry Highschool confirms that Bobby made suggestive comments to Veronica. Tessa Teacher reports that she heard Bobby make suggestive comments to Veronica also. Bobby’s Facebook page contains suggestive comments about Veronica.

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How to Write an Effective Investigation Report

Importance of Reports

• Investigation reports provide evidence of investigations. In particular, reports:– Detail the processes of the investigation; – Organize and present the factual information collected;– Provide specific factual support for conclusions and

remedies; and– Are used by superintendents, school boards, OCR, the

DOJ, and possibly the court system to determine whether the investigation and response were appropriate.



• Reports help ensure that all participants in the investigation – including the victim, alleged harasser, and other witnesses – receive a fair process by: – Encouraging thorough investigations;– Giving district officials an opportunity to analyze the

information collected to determine whether facts support the allegations; and

– Providing rationale for district decisions.



Report Components

1. Introduction / Origin of Complaint

2. Scope of Investigation

3. Facts

4. Conclusions

5. Recommendations

Note: Each of the components above should be a separate section in the report.



Introduction / Origin of Complaint

• Describe each allegation in detail.– State each as succinctly and clearly as possible.

→ Veronica Victim claims that during a seventh period class on November 1, 2010, Bobby Bully made the following sexually suggestive comments to her: " [insert comments]." Veronica claims that she asked him to stop but that he continued to repeat the statements.



• For each allegation, cite the statutory or regulatory claim and grounds upon which the allegation is based.

→ Title IX prohibits sexual harassment in any public school. In addition, Policy 99.101 of the Main Street Middle School Student Handbook prohibits a student from making statements to another student of a sexually suggestive nature. Policy 99.102 requires . . .



• Describe actions the school has taken prior to your involvement.

→ Prior to the investigation, Assistant Principal John Smith met with Veronica Victim and questioned her about the alleged incident. In addition, Mr. Smith instructed Bobby Bully that he was not to have any conversations with Veronica until further notice.



Scope of Investigation• Explain how you conducted the investigation

→ I began the investigation by reviewing the relevant statute, policies, etc. that address the conduct that allegedly took place. Next, I interviewed the complainant, Veronica Victim. Based upon information provided by Veronica, I reviewed the relevant student files, then interviewed Sam Student, Harry Highschool, and Franny Friend. Based upon the relevant policies, documents and interviews, I presented recommendations to Principal Patricia Patterson.



• Identify the documents you reviewed, including: – written complaints, – emails, – interview notes, – school policies and regulations, – incident reports, – online photos and posts, and– other documentary or physical evidence.



• Attach key documents to the end of the report.

→ I reviewed the following written materials:1. Student Handbook policy no. ____.2. Email, dated May 1, 2010, from Bobby Bully to

Veronica Victim.3. Student files of _____, _____, and _____.4. Facebook page of Bobby Bully printed May 5, 2010.5. Incident report, dated November 2, 2010, prepared

by Assistant Principal Karen Johnson.



• Identify the witnesses you interviewed

→ The following witnesses were interviewed during the investigation:

1. Veronica Victim

2. Bobby Bully

3. Assistant Principal Karen Johnson

4. etc.



Facts• Should rely upon clear, accurate, factual evidence.


How to Write an Effective Investigation Report• Describe ALL facts relevant to the analysis, conclusions, and

recommendations, including:

– Who, what, where, when, why, how;

– Specific actions / incidents that occurred;

– Dates;– Locations of incidents; – Specific quotations of words

used (evidence of motivation, but not statements about motivation);

– Ages of students;

– Specific actions the district has already taken to investigate (but not conclusions the district has drawn);

– Impact of incident on complainant, others, and school;

– Students’ prior relationships and interactions;

– Students’ prior incidents; and– Position of actors (e.g.

student, principal).



• Present the facts in a logical sequence.– Often, it is best to use the chronological order of events.– But, sometimes, you may want to organize the facts

according to complaint or subject matter.



• If some fact is disputed, use the relevant documents and testimony – as well as the strategies described in Section II – to include sufficient factual material to resolve the dispute.

→ Although Bobby Bully denies making any improper statements to Veronica Victim, Bobby has lied to school officials on two occasions in the past, and the email dated May 1, 2010 supports Veronica’s allegations that Bobby made comments of a sexually suggestive nature.



• Be objective; do not use subjective characterizations.

→ Prior to the incident at issue, Bobby Bully had twice received in-school suspensions for making sexually suggestive remarks to female students.

NOT

Bobby Bully is a crude and unlikable student who constantly gets into trouble.



• Cite to specific evidence for support.

→ Statement of Harry Highschool during a meeting with Principal Patterson on November 8, 2010.



• Do not analyze the facts or draw conclusions in the Finding of Facts section.– This section is intended only to establish the factual and

logical basis for the analysis and conclusions.

• If available, use police investigations / reports as you would any other piece of information – they are not necessarily determinative.



For example:

→ Facts:

1. Veronica Victim and Bobby Bully are 8th grade students at Main Street Middle School.

2. Main Street Middle School is a public school located at 123 Main Street.

3. On November 1, 2010, Veronica Victim complained to her homeroom teacher, Tessa Teacher, that Bobby Bully had made sexually suggestive comments to her during their

seventh period class.



Conclusions

• Analyze the facts presented, restating the critical facts and resolving factual disputes.

• Apply the correct standard – preponderance of the evidence under the federal civil rights laws.

→ The comments allegedly made by Bobby Bully are sexual in nature. If the comments were made, they violate the Main Street Student Handbook. Section XX.XXX of the Student Handbook states as follows: [insert].



• Include reasons for accepting or rejecting the allegations.– Apply the preponderance of the evidence standard!

→ I credit Veronica Victim’s version of events. Her allegations are supported by two witnesses, Harry Highschool and Tessa Teacher. Moreover, while Bobby Bully initially denied the allegations, he later conceded that he "might" have made the comments but stated that he was "joking."



• Draw conclusions– Use the facts! – All conclusions must be logical and reasonable reflections

of the facts.– The purpose is to determine if the alleged acts occurred

and why the alleged acts occurred (i.e. motivations).

• Do NOT make legal conclusions



Recommendations• Recommend a resolution of the complaint.

– Describe actions required to make the complainant whole. – Describe actions required to eliminate the discriminatory

practice.

→ Main Street's Student Handbook clearly states that there is "zero tolerance" for sexually suggestive remarks by, or directed to, students. Consistent enforcement of the policy requires prompt and decisive discipline, both to correct Bobby Bully's behavior and to reiterate to others that such conduct is not tolerated.



• Recommend an intervention, such as:– Remedial relief for identified victims;– Prospective relief for the school (e.g. changes in policies,

training for staff); and/or– Progressive discipline for the harasser (which depends on

severity, intent, whether a repeat offender, etc.).

Note: Additional interventions/remedies are discussed in section IV.



For example:→ I recommend the following:

1. Bobby Bully should be instructed to apologize to Veronica Victim in a meeting supervised by

Principal Patricia Patterson.

2. Bobby Bully should be suspended from school for a period of two days.

3. Bobby Bully should be cautioned not to retaliate in any manner against Veronica Victim.

4. Main Street Middle School should conduct a school assembly to review the school's anti-harassment policies.



• Additional key feature:– The report should include information on how to appeal

the report if the complainant is not satisfied.

Sources:• Connecticut school districts (New Canaan Public Schools, Wilton Public Schools, Weston Public

Schools), Bullying / Sexual harassment policies• National Women’s Law Center, How to Protect Students from Sexual Harassment: A Primer for

Schools• Connecticut Commission on Human Rights and Opportunities, Sexual Harassment Prevention

Policy and Complaint Procedure• U.S. Dept. of Educ., Office for Civil Rights, Sexual Harassment: It’s Not Academic• U.S. Dept. of Justice, Civil Rights Division, Investigation Procedures Manual for the Investigation

and Resolution of Complaints Alleging Violations of Title VI and Other Nondiscrimination Statutes

• Maryland County Public Schools, Bullying, Harassment, or Intimidation Reporting Form and Bullying, Harassment, or Intimidation Incident School Investigation Form

• Richard Cole, Connecticut Investigations Workshop



10 Tips for Writing an

Effective Investigation Report



1) Be impartial.– Do not use biased language.– Beware of language that downplays, has certain

connotations, etc.– If available, use the specific language of the actors.

2) Do not mischaracterize facts.



3) Be thorough.– Do not leave out facts that appear damaging to the school

district. This undermines both the credibility of the report and your credibility as an investigator.

– Sometimes, you might need to explain that the district made a mistake.

4) Be specific.– Do not be vague. If you do not know a particular fact, find

it out.– When possible, do not allow witnesses to be vague.



5) Confirm that the investigation was done appropriately.– Interview all appropriate witnesses.– Substantiate claims, investigate credibility, and do not

accept statements at face value.– Use supporting documents and corroborating evidence.– Follow up on all leads.

6) Be prompt.– Follow your district’s policy with regard to deadlines.



7) Comply with legal requirements.– Comply with state and federal privacy laws.– Comply with union contracts.

8) Give yourself enough time! – Allow an appropriate amount of time to conduct a

thorough investigation and write an effective report.



9) Write effectively.– Use short sentences, active voice, and words that convey

full and appropriate meaning.– Proofread.

10) Attach key documents to the end of the report.

*Form documents can help keep the process organized*


IV. Case Studies and Role Plays


Case Study # 1

161

• Link


Case Study # 1

HOW DO YOU RESPOND?

• Is this harassment? • If so, what type of harassment? • Is this incident worthy of an investigation? • Do you need to write a report? • What challenges do you see?

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Case Study # 2

• Link

163


Case Study # 2

HOW DO YOU RESPOND?

• Is this harassment? • If so, what type of harassment? • Is this incident worthy of an investigation? • Do you need to write a report? • What challenges do you see?

164


Case Study # 3

• Handout

HOW DO YOU RESPOND?

• Is this harassment?• If so, what type of harassment? • Is this incident worthy of an investigation? • Do you need to write a report? • Identify flaws in the prior investigative process and

reports. 165


Putting Theory into Practice: Role Play

• You hear rumors that a group of male tenth graders led by Bobby Bully created an elaborate online “fantasy league” involving a quarter of the female students in the tenth grade. You receive an email from Jane Doe, a tenth grader, attaching a scanned copy of the “scoring page” and her “profile page.” The scoring page assigns points to each boy by pseudonym based on the girl’s profile score and how “far” the boy got, including points for so-called “grabs.” Jane’s profile says she is an “ugly slut,” worth only 1 point. Jane’s email says she found a paper copy of the pages printed and stuffed in her locker.

• You call Jane to your office, and commence the interview . . . 166



• In your small groups, outline an investigation strategy, starting with an interview of Bobby Bully or Jane Doe.

• We will ask volunteers to interview “Bobby” or “Jane” in front of the group.

• Based on what you learn, decide who else to interview.

• When satisfied that the investigation is complete, practice outlining an investigation report. Provide specific examples.

167



Straight from the headlines . . .

In October 2012 Piedmont High School in Piedmont, California launched an investigation into a “fantasy” league that may have been operating for five years.

--ABC News

School officials plan to meet with parent clubs to reassure parents, “establish coaching alliance training” for all athletes, and hold an assembly in December 2012.

--Oakland Tribune

168


V. How to Remediate Incidents of Harassment


How to Remediate Incidents of Harassment

Once a school district has determined that harassment has

occurred, the district must take appropriate steps to end the

harassment.

• The nature of those steps will depend upon a number of factors, including the ages of the victim(s) and the harasser(s), the nature of the harassment, and the pervasiveness of the harassment.

• Generally, school districts should consider taking some or all of the following steps:



1. Immediately take reasonable steps to stop the harassment.• This must be your first – and most important – step in response to

any incident of harassment (including alleged harassment).• In certain cases this might require separating the victim and the

perpetrator completely.

2. Discipline the harasser appropriately. • In the 2010 and 2011 OCR letter, OCR emphasizes that, under

many circumstances, disciplining the harasser is a necessary – but not sufficient – step in addressing incidents of harassment.



3. If appropriate, engage in conflict resolution procedures involving the harasser and his or her victim(s).

– The 2011 DCL states that voluntary conflict resolution is permissible when a trained adult facilitates, but never in the context of alleged sexual assault.

4. If necessary, provide services to the victim to address the effects of the harassment (e.g., counseling, tutoring).

5. Avoid retaliation.• Ensure that no teacher, administrator, or other staff member

retaliates in any way against a student, teacher, administrator, or other staff member who, in good faith, reported the harassment.


How to Remediate Incidents of Harassment ***Special Note on Retaliation***

•As noted earlier, OCR issued a Dear Colleague Letter in April 2013 specifically addressing retaliation.

•If an individual (student, parent, teacher, coach, etc.) complains formally or informally to a school about a potential civil rights violation, the school must not retaliate (including “intimidating, threatening, coercing, or in any way discriminating against the individual) because of his or her complaint.

•OCR will pursue a resolution agreement with any school that retaliates.



6. Take reasonable steps to prevent the harassment from recurring.• Depending on the circumstances, the school district should consider the following strategies:

– Provide training or other interventions not only for the harassers but also for the larger school community.– Inform parents and students about the harassment incident and the school district’s response.– Distribute anti-harassment materials to students and parents. – Ensure that the victim and his or her family know how to report subsequent problems with harassment.– Conduct follow-up inquiries to confirm that there have not been any new instances of harassment or instances of retaliation.

Note: All correspondence with and documentation provided to English Language Learners and their parents should be translated into a language the parent and student can understand.


Learner Objectives

The learner will:

1) Review how to identify various types of

harassment.

2) Review the key steps in conducting an

investigation.

3) Learn the key components of an investigation

report.

4) Practice writing a model report.



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Maree Sneed, Partner Esther Haley Walker, Associate December 2013.

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