principal leadership workshop bullying, cyberbullying...

Principal Leadership WorkshopBullying, Cyberbullying, Harassment, HazingJ O C E LY N P. K R A M E R , E S Q . F E B R U A R Y 2 0 , 2 0 1 8

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BULLYING

Bullying is an intentional electronic, written, verbal or physical act or series of acts directed at another student or students, which occurs in a school setting, that is severe, persistent or pervasive and has the intent or effect of:

1. Substantial interference with a student’s education; or

2. Creation of a threatening environment; or

3. Substantial disruption of the orderly operation of the school.

Bullying includes Cyberbullying.

Refer to your Board’s Policy for specific definitions.

© WBK LEGAL 2017 THIS PRESENTATION IS INFORMATIONAL ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. 2

BULLYING• Reports of bullying are to be made to the school principal, counselor or social worker,

teacher or any school employee – verbally or in writing.

• School employees must report to the principal or designee and may be subject to discipline for failing to report.

• School principal or designee will investigate, maintain a confidential record of the matter in the files for the victim and the alleged bullies, contact the parents of all parties and administer appropriate consequences and remedial actions.


Morrow v. Balaski (3d Cir. 2013)

◦ The Blackhawk School District was recently successful in defending a bullying case involving 2 sisters. The sisters had been subject to threats, assaults and racial intimidation by peers. One incident involved an assault in the school cafeteria for which the perpetrator was suspended for 3 days. She was charged in juvenile court and a no-contact order was issued. Despite the order, the perpetrator was permitted to return to the school. The family filed suit claiming that the perpetrator should have been expelled.

◦ The Court held that school officials do not have a constitutional duty to protect students from bullies, but they can still be liable if they create or enhance a danger in violation of a student’s substantive due process rights.

BULLYING


CYBERBULLYING

Cyberbullying is any cyber-communication or publication posted or sent by a minor online, by instant messenger, email, web site, blog, online profile, interactive game, handheld device, cell phone, or other interactive device that is intended to frighten, embarrass, harass, or otherwise target another minor, and:

1. the communication is repeated;

2. a threat of bodily harm issued; OR

3. there is a public posting designed to hurt, embarrass or otherwise target a child.

© WBK LEGAL 2018 THIS PRESENTATION IS INFORMATIONAL ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE.6

CYBERBULLYING: WHAT ABOUT THE RIGHT TO FREEDOM OF EXPRESSION?

• Students’ First Amendment interests are weighed against the school’s interests in preventing disruption and fostering the educational environment.

• Student speech rules must be viewpoint and content neutral.

• Exceptions where school may regulate speech:• Grave threat to physical safety

• School-sponsored speech (i.e., school newspaper, use of school logo)

• Lewd and indecent speech; obscenity

• Reasonable anticipation of substantial disruption (Tinker analysis)

• Incitements to violence

• True threats/fighting words – R.I. v. Central York Sch. Dist. (M.D.Pa. 2016)

• False statements of fact made with reckless disregard for falsity

• Other illegal behavior


Although there may not be a clear duty to protect a student from bullies, there is a clear statutory obligation to investigate and take remedial actions to address harassment based on a student’s protected status.

Protected status extends to situations when the conduct relates to theindividual’s race, color, national origin/ethnicity, gender (including genderidentity or expression), age, disability, sexual orientation or religion.

HARASSMENT: PROTECTED STATUS


• Harassment: verbal, written, graphic or physical conduct relating to an individual's race, color, national origin/ethnicity, sex, age, disability, sexual orientation or religion when such conduct:

1. Is sufficiently severe, persistent or pervasive that it affects an individual's ability to participate in or benefit from an educational program or activity or creates an intimidating, threatening or abusive educational environment;

2. Has the purpose or effect of substantially or unreasonably interfering with an individual's academic performance; OR

3. Otherwise adversely affects an individual's learning opportunities.

• Sexual Harassment is further defined by your Board Policy (and Slide 15).

HARASSMENT


What laws are implicated?

Title VI of the Civil Rights Act of 1964

Title IX of the Education Amendments of 1972

Section 504 of the Rehabilitation Act of 1973

Title II of the Americans with Disabilities Act of 1990

HARASSMENT: PROTECTED STATUS


1. When harassment is sufficiently serious so as to create a hostile environment, AND

2. Conduct is encouraged, tolerated, ignored, or not appropriately addressed by school staff.

Once a school knows or reasonably should know of student on student harassment, it must investigate and implement corrective action for violations.

PEER HARASSMENT: DISTRICT LIABILITY


Title IX: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected

to discrimination under any education program or activity receiving Federal financial assistance…”

• Title IX prohibits discrimination on the basis of sex, including peer-to-peer sexual harassment and sexual violence.

• Discrimination on the basis of sex includes gender stereotyping and sexual orientation discrimination.

• Title IX requires the school to take immediate effective steps to comply with requirements.

HARASSMENT: SEX DISCRIMINATION


Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.

Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations. Indeed, lesbian, gay, bisexual, and transgender (LGBT) youth report high rates of sexual harassment and sexual violence. A school should investigate and resolve allegations of sexual violence regarding LGBT students using the same procedures and standards that it uses in all complaints involving sexual violence.



Harassment can occur even when the victim and perpetrator are of the same sex.

A school’s obligation to respond appropriately to sexual violence complaints is thesame irrespective of the sex or sexes of the parties involved. Title IX protects allstudents from sexual violence, regardless of the sex of the alleged perpetrator orcomplainant, including when they are members of the same sex. A school mustinvestigate and resolve allegations of sexual violence involving parties of the same sexusing the same procedures and standards that it uses in all complaints involving sexualviolence.



Sexual harassment is sexual advances, requests for sexual favors, and other inappropriate verbal, written, graphic, or physical conduct of a sexual nature.

Sexual harassment violates Board policy and/or Title IX when such conduct denies or limits a student’s ability to receive educational aid, benefits, services, or treatment; or when such conduct is sufficiently severe, persistent or pervasive that it has the purpose or effect of substantially interfering with the student’s ability to participate in or benefit from the school’s program (i.e., creating an intimidating, hostile or offensive educational environment).

HARASSMENT: SEXUAL HARASSMENT


Scenario:

Some students anonymously inserted offensive notes into Hispanic students’ lockers and notebooks, used racial slurs, and threatened Hispanic students who tried to sit near them in the cafeteria. Some of the targeted 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.

HARASSMENT: RACE, COLOR OR NATIONAL ORIGIN


•Section 504 prohibits any entity that receives federal financial assistance (such as grants or student loans) from discriminating against persons with disabilities.

•Title II of the Americans with Disabilities Act at prohibits state and local governments (such as public school districts, public colleges and universities, and public libraries) from discriminating against persons with disabilities.

•In general, Section 504 and Title II nondiscrimination standards are the same, and in general, actions that violate Section 504 also violate Title II. However, where Title II requirements exceed Section 504 requirements, public school districts, colleges and universities, and libraries must also comply with the Title II requirements.

HARASSMENT: DISABILITIES


•Students with disabilities are disproportionately affected by bullying. Twyman & Saylor, et al. (2010).

•Bullying of students with disabilities may constitute discriminatory harassment prohibited under Section 504 and/or Title II of the ADA, BUT

•“Bullying of a student with a disability that results in the student not receiving a meaningful educational benefit constitutes a denial of a free appropriate public education (FAPE) under the IDEA.” ◦ This is true whether the bullying is related to the child’s disability or not.

◦ School has responsibility to ensure that the child continues to receive FAPE in accordance with his/her IEP.



Specific strategies suggested to prevent and respond to bullying, include:

• Reconvening the student’s IEP Team to determine whether, as a result of the bullying, the student’s needs have changed and the IEP needs to be revised accordingly

• Ensuring that any change in placement is due to a verified, documented safety concern or because the child can no longer receive FAPE in the current LRE placement. A placement in a more restrictive “protective” setting to avoid the bullying may constitute a denial of the IDEA’s requirement that the school provide FAPE in the LRE.

• If the student engaged in the bullying behavior is a student with an IEP, the student’s team should review the IEP to determine if additional supports and services are needed to address the inappropriate behavior.



T.K. v. New York City Dep't of Educ., 779 F.Supp.2d 289 (E.D.N.Y.2011)

Generally, a deprivation of FAPE has been found when school personnel are deliberately indifferent to the bullying or fail to take reasonable steps to prevent bullying that substantially restricts educational opportunities.

K.R.S. v. Bedford Community S.D., 109 F.Supp.3d 1060 (S.D. Iowa 2015)

Case moved beyond summary judgment where incidents of name-calling and football throwing were based on high school student's intellectual cognitive disability and student claimed school permitted the discrimination in violation of Section 504.

Wright, et al. v. Carroll County Bd. of Educ., 2013 WL 4525309 (D. Md. 2015)

Plaintiffs did not demonstrate that the disability based harassment was sufficiently severe and pervasive, and failed to show that the school had knowledge of the harassment and bullying and was deliberately indifferent.



Investigating Bullying and Harassment


This Photo by Unknown Author is licensed under CC BY-ND

http://theconversation.com/changing-workplace-bullying-laws-will-not-open-floodgates-21153

https://creativecommons.org/licenses/by-nd/4.0/

BULLYING AND HARASSMENT: COMPLAINTS AND INVESTIGATIONSAll complaints of bullying and harassment shall be investigated promptly and corrective action

taken when complaints are substantiated!

RESPONSE – When a complaint is received:1. Notify principal or designee of complaint (and compliance officer if protected class is involved)

2. Principal or designee determines whether conduct complained of, if true, is bullying and/or harassment as defined by your Board Policy;

3. Contact the parent/guardian of alleged victim and alleged perpetrator;

4. Principal or designee (e.g., asst. principal, school counselor, social worker) conducts prompt investigation and compiles an investigation report (see sample report);

5. Summary of investigation and outcome must be provided to the parents of both the victim and the perpetrator; and

6. Appropriate discipline, interventions and corrective actions must be implemented if there is a finding of bullying or harassment.


• The investigation must be timely, adequate, reliable, and impartial.

• The victim must be notified of the right to file a criminal complaint.

• Both the complainant and the alleged perpetrator must have the opportunity to offer statements and evidence.

• The standard is “preponderance of the evidence” (i.e. more likely than not to have happened).

• Both parties have the right to appeal.

• Both parties must be notified in writing of the outcome.

BULLYING AND HARASSMENT: COMPLAINTS AND INVESTIGATIONS


The investigation should include:• Interviews of both the complainant and the alleged perpetrator (except in sexual

abuse or violence cases that have been referred to law enforcement / ChildLine –victim interview may be delayed or prohibited)

• Interviews of potential witnesses and collection of witness statements

• Review of student files

• Review of law enforcement reports

• Gather and examine other documents and/or relevant evidence



Seek immediate assistance from your solicitor if:

• Principal, school employee or independent contractor of the District is the alleged perpetrator of the conduct.

• The parent/guardian and child are represented by an attorney in relation to the allegations.

• The parent/guardian is alleging discrimination related to the bullying/harassment (e.g. bullying or harassment because of the child’s sex, disability or race).



• Conduct is particularly severe in nature, for example: ◦ Sexual assault and/or inappropriate touching of a sexual nature

◦ Severe physical violence

◦ Victim has been hospitalized or threatened suicide due to the purported incident

◦ Where the parent/guardian is withholding the student from his or her school program due to the alleged conduct

• The school makes a determination and the parent disputes the conclusion



ANTI-HAZING LAW: ACT 31 OF 2016

Prior to June 2016, Pennsylvania’s Anti-Hazing Law only extended to institutions ofhigher education.

The state legislature amended the Anti-Hazing Law of 1986 to add a definition of“secondary school” to the Law.

The Anti-Hazing Law now covers secondary schools and their students in grades 7-12.


DEFINITION OF HAZING

Hazing is defined under the Law as, “[a]ny action or situation which recklessly orintentionally endangers the mental or physical health or safety of a person orwhich willfully destroys or removes public or private property for the initiation oradmission into or affiliation with, or as a condition for continued membership in,any organization.”


SCHOOL RESPONSIBILITIESUnder the Law, “any public or private school within this Commonwealth providing instruction in grades 7 through 12 or any combination of those grades” must now:

1. Adopt a written anti-hazing policy which includes rules prohibiting hazing;

2. Provide a copy of its written anti-hazing policy, rules, penalties and program of enforcement to all athletic coaches at the school;

3. Post its written anti-hazing policy on its publicly accessible website.

Schools must also adopt procedures to enforce the rules against hazing and penalties for the violation of such rules.


IMPOSING PENALTIES ON VIOLATORSThe Law specifically states that schools may, as a penalty:• impose fines;

• impose probation, suspension or expulsion upon students who violate the school’s anti-hazing policy;

• disband sports teams or groups that operate on school property or under the sanction of the school.

Furthermore, any penalties imposed by the school shall be in addition to criminal penalties that may be imposed on violators.


ENSURE YOUR SCHOOL’S COMPLIANCE: RECOMMENDATIONS

• Maintain and implement your anti-hazing policy. The policy, or accompanyingadministrative regulations, should include, at a minimum:• the definition of hazing;

• the procedure for investigating a claim that a hazing incident has occurred;

• the penalties that the school will impose on individuals or organizations whoviolate the policy.


ENSURE YOUR SCHOOL’S COMPLIANCE: RECOMMENDATIONS

• Provide a copy of the written anti-hazing policy to all coaches or activitysponsors at the school.• If an individual is involved in more than one sport or activity, provide a copy of the

handout at the beginning of each season.

• Have the individual sign-off that he/she has received a copy of the policy and hasread and understands the policy.


COMPLIANCE QUICK-CHECKBullying, Harassment and Anti-Hazing PoliciesDefine relevant terms

Advise students of their responsibility to avoid such conduct

Advise students, parents and third parties how and to whom they may make a bullying/harassment complaint

Set forth investigation procedures

Student Code of Conduct/Handbook includes these policies

Administrators and staff understand the school’s responsibility to investigate and take appropriate corrective action

Policies are posted as required

Compliance Officer designated and posted

Nondiscrimination notice posted


Stopbullying.govAvoid these common mistakes:

Don’t ignore it. Don’t think kids can work it out without adult help.

Don’t immediately try to sort out the facts.

Don’t force other kids to say publicly what they saw.

Don’t question the children involved in front of other kids.

Don’t talk to the kids involved together, only separately.

Don’t make the kids involved apologize or patch up relations on the spot.


Thank You!Additional comments or questions:

Jocelyn P. Kramer, [email protected]

Weiss Burkardt Kramer LLC445 Fort Pitt Blvd., Suite 503Pittsburgh, PA 15219Phone: (412) 391-9890


mailto:[email protected]

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