Saturday, May 22, 2010

Moral and Legal Obligation to Prevent Student on Student Harassment

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. 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.

Federal anti-discrimination laws require school districts to take reasonable steps to prevent harassment of certain protected classes of students, because we are recipients of federal funds. But educational institutions want to take steps to prevent harassment of students whether they are in a protected class or not, because we want students to come to school in an environment that is humane and that promotes an accepting learning environment. In this post I want to describe some of the federal legal obligations that we have as school board members, but as I do that, I don't want to imply that we work on these issues simply because the law requires us to do so: when you invite someone into your home, you aren't nice to them because the law makes you. You do it because your religious and ethical code demands it of you, and well, because your mother raised you with good manners.

The basis of the federal legal obligation in the harassment area is found in Title VI, which protects the right to be free from discrimination under a program that receives federal funding. 42 U.S.C. § 2000d. Title VI provides in part that "no person . . . shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Id. Section 601 prohibits intentional discrimination based on race, color, or national origin in covered programs and activities. Alexander v. Sandoval, 532 U.S. 275 (2001).

Notice that in harassment cases in the school, the school isn't directly doing the harassment. We are talking about student on student harassment here. So the legal question is when should a school district be legally responsible for what one student does to another.

In the 1999 case, Davis v. Monroe County Bd. of Educ., the Supreme Court held that "recipients of federal funding may be liable for gender discrimination for 'subjecting' their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student harassment and the harasser is under the school's disciplinary authority." This standard has been applied to racial harassment cases as well.

In law, we start with looking at whether there is a prima-facie case of discrimination. A prima facie case exists when the complaining party can get to “first base” as it were. You get to first base when it can be shown that there is a body of credible evidence which, if believed, would establish the violation. To establish a prima facie case of student-on-student racial harassment, Plaintiffs must demonstrate each of the following elements.:

(1) the [racial 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 (school district) had actual knowledge of the harassment, and

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

As with every "prima facie" case, just about anyone can allege facts and get someone to hear them. So I don't want to create the impression that the legal standard is easily satisfied. But when a complaining person puts forward a prima facie case, it means that the school district has to convince that the evidence is wrong, that the harassment did not occur, that it wasn’t severe, or that the District was not deliberately indifferent. Remember also that we are dealing with the legal standard here. As a community of moral people, we should not be motivated primarily by the desire to avoid legal trouble. We don't drive carefully to keep our insurance rates down--we drive carefully because we don't want to run over a pedestrian or cause some terrible harm to a real live person.

An example of the application of these principles is found in the Oklahoma Bryant case. There, the students, and possibly the teachers, acted in a racially discriminatory way towards other students. The principal was aware of racial slurs, graffiti inscribed in school furniture, and notes placed in students' lockers and notebooks. White males were allowed to wear T-shirts adorned with the confederate flag, swastikas, KKK symbols, and hangman nooses on their person and their cars. The students and parents complained to the principal about the racist environment, but the principal took no action to remedy the situation. The 10th Circuit held the school administrators' lack of response constituted intentional action which could subject them to liability under Title VI. Bryant v. Indep. Sch. Dist. No. I-38, 334 F.3d 928 (10th Cir. Okla. 2003)

Notice that the harassment was severe, pervasive and objectively offensive. The principal was aware of ongoing practices. Complaints were lodged, but the principal took no action, and so liability was found warranted.

One Court has described the standard as follows:

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).

The Office of Civil Rights, Department of Education says: "Harassment of students due to race, color, and national origin is a disturbing phenomenon in elementary and secondary education as well as at colleges and universities as shown by the growing number of complaints the Office for Civil Rights (OCR) receives on this issue. This trend is a major concern because of the profound educational, emotional and physical consequences for the targeted students."

A racially hostile environment may be created, the OCR explains “by oral, written, graphic or physical conduct related to an individual's race, color, or national origin that is sufficiently severe, persistent or pervasive so as to interfere with or limit the ability of an individual to participate in or benefit from the recipient's programs or activities.”

What are school districts doing to address these concerns. There are a number of strategies that can make a tremendous positive difference in school environments. School Board members have an obligation to take these issues seriously and to become informed about the strategies that work and to monitor the strategies that are being utilized within their own district. These issues are not simply a matter of adopting the right policy--they represent major policy challenges for school districts today. But none of these strategies can have their maximum impact, unless the larger community, from religious leaders, political leaders, law enforcement, service clubs, and just plain citizens make an effort to create a community environment that promotes a welcoming environment, what I would call a community with good manners. I'll post a bit more on the things that school districts are doing, or can do, to comply with the legal and moral obligations to create a welcoming environment to all students.

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