Sunday, May 23, 2010

Moral and Legal Obligation to Prevent Student on Student Harassment Part II

Yesterday, I wrote that one of the moral, professional, or legal obligations of school boards is to implement policies and programs which seek to protect students from harassment based on race, color, national origin, and gender. I said that harassment occurs among young people as an expression of insecurity, in part. Young people who feel stressed by the social challenges of growing up, and who worry about whether they are, well, going to be ok, sometimes think that pushing other kids around is a way of proving that they are somebody important. Harassment occurs among young people as an expression of the prejudices that they hear at home, or amongst their close peers, or on television and today on the Internet. Usually the target of harassment will be children who we perceive as being vulnerable. That is, children who lack the prestige or power to protect themselves. That's why often the target of harassment will be students who are otherwise socially unpopular, or minority students, or immigrants, or students with different sexual orientations.

One of the major definitive guiding documents for school districts is a publication titled “Protecting Students from Harassment and Hate Crime, a Guide for Schools. It is a ten-year old publication of the Office of Civil Rights (OCR) of the Department of Education and the National Association of Attorneys General. It’s endorsed by the National School Board’s Association. It was authored when Richard Riley was the Secretary of Education . These are guidelines, of course. The law does not require that a school district adopt or implement any of these in particularized format. But the guide provides an excellent sense of best practices which can be utilized to identify possible areas for improvement.

The Guide says that school districts can address these issues best by:

• developing a comprehensive written anti-harassment policy;
• identifying and responding effectively to harassment;
• establishing formal reporting and complaint procedures;
• creating a safe and supportive school climate;
• responding to hate-motivated violence through cooperation and partnerships between school and law enforcement officials; and
• developing crisis intervention plans to avoid disruption of the educational process.

These are positive things that school districts can do, but in order to do them well, it requires a long-term commitment and collaborative involvement by stakeholders in the community: parents, advocacy groups, the media, political and civic leaders. Creating a welcoming community environment is an ongoing never ending task. One cannot accomplish perfection overnight. But the OCR guide represents a blueprint for action, and ideally, the community would focus on each of these points, on a regular basis, to determine which bullet points are working and which need more work. This approach requires an ongoing positive collaborative effort based on a continuous progress philosophy.

That brings me to an important point. Advocates can focus on trying to prove that educational institutions are not meeting their responsibilities, or they can focus on trying to engage in teamwork, but at times it can really be hard to do both at the same time. When an advocacy organization decides to lower the boom on an school district by filing an OCR complaint, the organization is locking itself into the contention that the district is willfully indifferent to student on student harassment. It becomes committed to proving that high standard and part of the proof involves trying to show that the board, the superintendent, administrators and faculty, well, just don't seem to care about students. Once an advocacy group becomes committed to proving that, it virtually forces the organization to hyperbolize, to vilify, and to create an environment that fulfills the contention first made.

Just look at the standard required for proof of a federal civil rights violation:

In describing the proof necessary to satisfy the deliberate indifference standard, the Supreme Court stated that a plaintiff may demonstrate defendant's deliberate indifference to discrimination "only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." The recipient is not required to "remedy" [racial discrimination] nor ensure that students conform their conduct to certain rules, but rather, "the recipient must merely respond to known peer harassment in a manner that is not clearly unreasonable." The deliberate indifference standard "does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action." The standard does not mean that recipients must expel every student accused of misconduct. Victims do not have a right to particular remedial demands. See id. Furthermore, courts should not second guess the disciplinary decisions that school administrators make. See id. Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253 (6th Cir. Ky. 2000).


As I have said, when an advocacy group decides to make an OCR complaint against a school district, in order to overcome the high hurdle found in the law, they are compelled to assert that the school district is "deliberately indifferent to harassment." Having made this contention, the advocacy group now must now prove its contention by minimizing any efforts the district has made, by treating leadership as insensitive pariahs, and even by undermining efforts to collaborate. The OCR complaint is a blunt instrument.

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