OCR's Guidance on Bullying and Sexual Harassment in Schools: Compliance and Suggestions, Slides of Law

Download OCR's Guidance on Bullying and Sexual Harassment in Schools: Compliance and Suggestions and more Slides Law in PDF only on Docsity! Legal Corner By Michael I. Levin, Esq., PAESSP General Counsel Continued on next page40 Administrator September 2011 Responding to Bullying and Sexual Harassment in Light of Recent Guidance Provided by the U.S. Department of Education’s Office for Civil Rights1 I. Introduction The purpose of this article is to provide an overview of the recent guidance on bullying and harass- ment (hereafter “bullying”) and sexual harassment matters that has been provided by the U.S. Department of Education’s Office for Civil Rights (“OCR”), and to offer some suggestions for how to comply with that guidance. In that regard, in 2010 and 2011, OCR issued two comprehensive letters that describe how a school should deal with bullying and sexual harassment issues. OCR enforces key federal laws2 that apply to “all state education agencies, elementary and sec- ondary school systems, colleges and universities, vocational schools, proprietary schools, state voca- tional rehabilitation agencies, libraries and museums that receive U.S. Department of Education funds”3 (emphasis added).4 Therefore, OCR’s views have to be accounted for in a school’s responses to incidents of bullying and sexual harassment. This is true even though school administrators may view OCR’s guid- ance as setting a very difficult standard to meet in dealing with bullying and harassment, particularly given the reduced dollars and resources schools have in the current economic environment. Indeed, as explained in this article, OCR suggests that even timely and good faith efforts to detect, deter and punish bullying and harassment may not be sufficient to meet OCR’s standards of how schools should re- spond to such conduct or avert OCR enforcement actions. Nonetheless, given OCR’s role in enforcing key federal anti-discrimination laws, school adminis- trators should understand OCR’s guidance on bully- ing and sexual harassment and take reasonable measures to meet the standards. II. OCR’s Guidance Letters as to Bullying and Sexual Harassment OCR’s guidance as to bullying and sexual harass- ment is contained in two letters, one from October 2010 that deals with bullying (“Bullying Letter”), and one from April 2011 that deals with sexual harass- ment (“Sexual Harassment Letter”).5 A. OCR’s Bullying Letter OCR’s Bullying Letter “focuses on the elementary and secondary school context.”6 OCR’s definition of the bullying and harassment at issue in its letter is as follows: . . . [V]erbal 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, per- vasive or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities or op- portunities offered by a school. When such harassment is based on race, color, national origin, sex or disability, it violates civil rights laws that OCR enforces.7 OCR states that a school is “responsible for ad- dressing bullying incidents about which it knows or Continued on next page Administrator September 2011 41 Legal Corner - Continued from previous page reasonably should have known,”8 and expects schools to promptly and thoroughly investigate such conduct. OCR does not set any definite standards for investigations of bullying or even discuss the charac- teristics of what OCR considers to be a sufficient investigation. Rather, OCR advises only that “the specific steps in a school’s investigation will vary depending upon the nature of the allegations, the source of the complaint, the age of the student or students involved, the size and administrative structure of the school and other factors.”9 Schools 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,”10 and must process com- plaints of discrimination even when they origi- nate from acts that do not occur on school property.11 OCR states that schools are responsible for pro- viding training to students and teachers as to the schools’ discrimination policies, and may be required to issue entirely new policies as to bullying, harass- ment and discrimination in response to a single in- cident of such conduct.12 Finally, OCR emphasizes that schools can be held accountable for discriminatory conduct of students, even when schools address that conduct with disci- pline and other measures if, in OCR’s view, the schools did not adequately address discrimination.13 B. OCR’s Sexual Harassment Letter OCR defines sexual harassment as “unwelcome conduct of a sexual nature.”14 OCR instructs that it will view as sexual harassment “. . . sexual advances, requests for sexual favors and other verbal, nonver- bal or physical conduct of a sexual nature.”15 In the letter, OCR states that “[i]f a school knows or reason- ably should know about student-on-student harass- ment that creates a hostile environment, Title IX re- quires the school to take immediate action to elim- inate the harassment, prevent its recurrence and address its effects.”16 According to OCR, schools must, among other things, promptly investigate complaints of sexual harassment, proceed with investigations even when the conduct at issue is also the subject of a criminal investigation; process complaints of sexual harass- ment even as to incidents that occur away from school;17 provide sexual harassment training to employees at all levels;18 provide sexual harassment training for athletes and others;19 and take immediate steps to eliminate a hostile environment.20 OCR suggests that schools should take a number of other steps as to sexual harassment such as providing a collection of services including having an employee who is “on-call” to assist sexual harassment victims21 and conducting periodic assessments of student conduct as to whether it violates sexual harassment policies.22 As with bullying, OCR does not give any spe- cific guidance as to the investigation of sexual harassment, stating that the requirements for an investigation hinge on “. . . the nature of the allegations, the age of the student or students involved (particularly in elementary and secondary schools), the size and administrative structure of the school and other factors.”23 Similarly, OCR does not provide any concrete information as to what it views as sufficient training on sexual harass- ment and simply recommends that such training should “include practical information about how to identify and report sexual harassment and violence.”24 III. Complying With OCR’s Standards There is no definitive list of recommendations that, if followed, will guarantee that a school will avoid an OCR investigation or other action. However, the following suggestions take into account some of the issues OCR focuses on in its Bullying and Sexual Harassment Letters and, if incorporated in a school’s strategy for addressing bullying and sexual harass- ment, may assist a school in meeting OCR’s require- ments and in defending itself if legal action is taken against the school. A school should keep its solicitor informed of bullying and sexual harassment incidents as the solicitor may be able to assist the school in avoiding legal problems and may detect legal issues that are not immediately apparent to schools.