Department of Education and Sexual Assault/Harassment

On September 22, 2017, the Department of Education issued new guidance on Title IX. Given that the the person who received the majority of electoral college votes bragged about sexual assault, it is no surprise that the guidance appears to weaken interpretations of Title IX.

Before getting into the Dear Colleague Letter, it’s important to set the stage. When I hear people talk about Title IX and sexual assault in schools there seems to be a considerable amount of confusion about when Title IX comes into play.

Violating Codes of Conduct vs. Violations of Title IX

All schools, colleges, and universities have Codes of Conduct. These Codes of Conduct are supposed to have guidance for how to handle allegations of sexual harassment and sexual assault. They also include a variety of other components, they may include civility requirements, explicit prohibitions on plagiarism, dress codes, and attendance policies. The University of Washington Code of Conduct is captured in the WACs (Washington Administrative Code, the state version of the CFR). A sampling of the items included are: academic misconduct, acts of dishonest, alcohol violations, computer abuses, creating a public nuisance in neighboring communities, discriminatory harassment, harassment or bullying, hazing, indecent exposure, sexual assault, theft, and unauthorized recording. The Burden of Proof in “brief adjudicative proceedings” as well as “Full hearings” is the “Preponderance of evidence standard.”

As long as a school, university, or college has a (working) system where students can file complaints and those complaints are resolved in a timely fashion, Title IX likely will not come into play with regard to individual allegations of sexual assault.

Title IX is a ban on sex discrimination in education. This means that it is attempting to address the systemic issues. Title IX complaints are lodged when a educational institution appears to be failing to address the issues in a way that can lead to a situation where the educational institution knew or should have known that problems existed. (The ACLU-WA has a great guide that goes into more detail.) In an individual setting, a complaint is often filed when a person tries to pursue the educational institution’s complaint process and there are significant hurdles (the educational institution having unclear or contradictory methods of complaining, not providing a method of appeal, etc.) Title IX can also be implicated if there is a hostile environment that the school should have known existed. For example, if a significant number of complaints of sexual assault occur during football recruiting and the school does nothing to address student safety, the school could be liable for a Title IX violation. This means that in addition to many other claims students could file against the university, they could include an allegation of a Title IX violation, which allows for monetary damages. It also means, though in the history of Title IX it has never happened, that the Federal Government could rescind federal funding to the educational institution (the entire educational institution, not just the area where the discrimination occurred).

Understanding the Reason for the Recent Dear Colleague letter 

Sexual assault has long been an area where there is a misguided belief that people make false reports at substantially higher rates than other crimes and therefor anyone who claims a sexual assault happened must be looked at suspiciously. In addition, those accused of sexual assault (especially privileged white young men) should be given extra leniency so as to protect the harm that could befall them from a proper punishment. Proponents with this view point believe that anything involving sexual assault allegations should have to reach the highest burden of proof, the standard used in a criminal trial (beyond a reasonable doubt or as it’s labeled in a civil setting “clear and convincing”) even when not there is no deprivation of life or liberty at stake.

The new Q&A issued in connection with the Dear Colleague Letter rescinding the 2011 Dear Colleague letter is a nod towards heading in the direction of the heightened standard because it revokes the preponderance standard articulated in the 2011 Dear Colleague Letter.

Relevant Comparison of the Dear Colleague Letters 

The 2011 letter stated (Note the Department of Education appears to have removed it from the general summary, but it can be found on the archived site :

Title VII prohibits discrimination on the basis of sex.26 OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients. For instance, OCR’s Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX.27 OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings.28 Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

(emphasis added)
Footnotes referenced:

26 See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (noting that under the “conventional rule of civil litigation,” the preponderance of the evidence standard generally applies in cases under Title VII); Price Waterhouse v. Hopkins, 490 U.S. 228, 252-55 (1989) (approving preponderance standard in Title VII sex discrimination case) (plurality opinion); id. at 260 (White, J., concurring in the judgment); id. at 261 (O’Connor, J., concurring in the judgment). The 2001 Guidance noted (on page vi) that “[w]hile Gebser and Davis made clear that Title VII agency principles do not apply in determining liability for money damages under Title IX, the Davis Court also indicated, through its specific references to Title VII caselaw, that Title VII remains relevant in determining what constitutes hostile environment sexual harassment under Title IX.” See also Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (“We look to case law interpreting Title VII of the Civil Rights Act of 1964 for guidance in evaluating a claim brought under Title IX.”).

 

27 OCR’s Case Processing Manual is available on the Department’s Web site, at http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html.

 

28 The Title IX regulations adopt the procedural provisions applicable to Title VI of the Civil Rights Act of 1964. See 34 C.F.R. § 106.71 (“The procedural provisions applicable to Title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference.”). The Title VI regulations apply the Administrative Procedure Act to administrative hearings required prior to termination of Federal financial assistance and require that termination decisions be “supported by and in accordance with the reliable, probative and substantial evidence.” 5 U.S.C. § 556(d). The Supreme Court has interpreted “reliable, probative and substantial evidence” as a direction to use the preponderance standard. See Steadman v. SEC, 450 U.S. 91, 98-102 (1981).

The new regulations state:

The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.19

(Emphasis added).

Referenced footnote:

19 The standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases. In a recent decision, a court concluded that a school denied “basic fairness” to a responding party by, among other things, applying a lower standard of evidence only in cases of alleged sexual misconduct. Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 607 (D. Mass. 2016) (“[T]he lowering of the standard appears to have been a deliberate choice by the university to make cases of sexual misconduct easier to prove—and thus more difficult to defend, both for guilty and innocent students alike. It retained the higher standard for virtually all other forms of student misconduct. The lower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.”). When a school applies special procedures in sexual misconduct cases, it suggests a discriminatory purpose and should be avoided. A postsecondary institution’s annual security report must describe the standard of evidence that will be used during any institutional disciplinary proceeding arising from an allegation of dating violence, domestic violence, sexual assault, or stalking. 34 C.F.R. § 668.46(k)(1)(ii).

Impact of the Dear Colleague letter

This particular Dear Colleague letter will likely have minimal impact. It doesn’t require schools to use a clear and convincing standard. In fact, it requires a consistent standard and educational institutions are unlikely to want to have a “clear and convincing” standard for all the discipline proceedings that come before them.

The real damage with the change in administration of the Department of Education is a regular problem that occurs are the shift of values when there is a Republican president. The President appoints people and outlines priorities that shift away from enforcement of sex discrimination. They do not diligently pursue Title IX complaints, at least not to the same extent as those appointed by Democratic presidents. If they take a Title IX complaint, they are far more likely to pursue a complaint that alleges the educational institution’s practices were unfair to the accused than the vastly greater number of complaints of the unresponsiveness of educational institutions towards targeted students. Knowing that the Office of Civil Rights is likely not going to pursue Title IX complaints often means people are less willing to file them (this is also a trend with the EEOC and sex discrimination claims in the workforce).

It seems odd that ensuring that students are not sexually assaulted is a partisan issue, but for some inexplicable reason Republican administrations actively work to weaken protections against sexual assault, sexual harassment and efforts to overcome sex discrimination as this recent Dear Colleague Letter demonstrates.

More concerning than this particular Dear Colleague letter, which allows educational institutions to use a clear and convincing standard if that’s the standard for all other violations of their codes of conduct, is that the Department of Education is exploring changing the regulations. Nevertheless, the regulations cannot rescind the law, nor can regulations overturn court decisions. While federal enforcement can be weakened administratively and that can have a big impact, Title IX is not going anywhere any time soon.

 

Teenage Sexting, Child Pornography & Harassment

The Washington State Supreme Court just issued a decision in a case that will be over-simplistically referred as to a teenage sexting case. The details of the case reveal the incredible complexity in addressing child pornography and teenage “selfies” and harassment.

Case

State v. Gray; Docket No. 93609-9; Opinion Author – Owens; joined by Fairhurst, Johnson, Madsen, Stephens, and Wiggens; Dissent Author – McCloud; joined by Gonzalez and Yu; Attorney for Petitioners – Kathleen Shea & Washington Appellate Project; Attorney for Respondents Gretchen Eileen Verhoef 

Amicus Curaie: ACLU, Juvenile Law Center, Columbia Legal Services, and TeamChild

Basic Facts

When Eric Gray was 17 years old, he sent an unsolicited picture of his erect penis to an adult woman and invited her to share it with her daughter. (this is a little confusing as the recipient was 22 and it is unclear how old her daughter would have been) Mr. Gray had previously been convicted of a separate offense because at the time of this case, he was already a registered sex offender. Mr. Gray had allegedly been harassing the woman he sent the picture to for a year with unsolicited and repeated phone calls. To further complicate matters, Mr. Gray has an Asperger’s diagnosis, it was not discussed much in the opinion, but Asperger’s is a condition that can impair an individuals understanding of societal norms.

The State dismissed the telephone harassment charge and did not charge  “two counts of misdemeanor indecent exposure stemming from an unrelated incident.” (This is a short sentence that creates the impression there were more complaints regarding his behavior, likely in person).

The Law 

The law at issue is RCW 9.68A.050, which prohibits developing or disseminating sexually explicit images of minors.

 

Appellate Court Opinion

The major question and concern is whether child pornography laws can extend to minors taking sexual selfies. The majority took a textual approach and said the statute was clear and had no exceptions for juveniles. The Majority concluded it could not create the exception in an unambiguous statute.

As noted above, a “person” is any natural person and a “minor” is merely a person who is not yet 18. RCW 9A.04.110(17); RCW 9.68A.011(5). Under this statute, there is nothing to indicate the “minor” cannot also be the “person.” Contrary to Gray’s arguments, we find that had the legislature intended to exclude the depicted minor from the definition of “person,” it would have done so as it has in other sections in this chapter. …Because the legislature has not excluded minors from the definition of “person” here, Gray was properly charged under this statute.

The Majority acknowledged the concerns of amici about the possible consequences for teens engaging in consensual sexting, but stated that those facts were not before the court:

…our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us. Gray’s actions fall within the statute’s plain meaning. Because he was not a minor sending sexually explicit images to another consenting minor, we decline to analyze such a situation.

The Majority also address the Dissent argument about a law not being able to be used to prosecute those who are protected by the law, i.e., not charging a woman who has been trafficked with prostitution – basically arguing that is not what happened in this case, the minor engaged in unwanted behavior when the minor sent the text. The majority noted that this issue not involve the manufacturing of pornography, i.e., a child who was trafficked for pornography is not being charged with the manufacturing of pornography that the child had no choice in creating. The Majority makes a distinction with this case in that Mr. Gray acted alone, in fact, his attention was unwanted.

First Amendment Argument

The Majority rejected the First Amendment argument stating that child pornography does not enjoy First Amendment Protections. Gray attempted to argue that because the Supreme Court has struck down a law that prohibited computer generated child pornography, because it did not involve criminal activity that his selfie should have First Amendment protection.

The majority disagreed:

We find that RCW 9.68A.050 is not overbroad. It regulates only sexually explicit images of actual children, which is speech outside the protections of the First Amendment. Because Gray transmitted such an image, his actions do not fall under First Amendment protection.

 

The Dissent 

The main argument of the dissent is:

…when the legislature enacts a statute designed for the protection of one class—here, children depicted in sexually explicit conduct—it shows the legislature’s intent to protect members of that class from criminal liability for their own depiction in such conduct. … Since the legislature enacted RCW 9.68A.050 to protect those children, it necessarily follows that those children who are depicted and hence exploited are exempt from prosecution under RCW 9.68A.050 for such depictions of themselves.

The dissent goes on to say the majority’s interpretation

punishes children who text sexually explicit depictions of their own bodies to adults far more harshly that it punishes adults who do the same thing. It punishes children who text such depictions of their own bodies to adults even more harshly than adults who text such sexually explicit photos to children. It even punishes the child who is groomed and led into taking such photos and forwarding them to the grooming adult!

(superfluous exclamation point in the original).

The dissent discussed Mr. Gray’s Asperger’s diagnosis and notes that he is a “prime example of someone who would benefit more from treatment and specialized services regarding appropriate social behavior than from incarceration or the social isolation of registering as a sex offender.” (This neglects to acknowledge that regardless of what happened in this case, he was a registered sex offender due to a prior adjudication- the details of what led him to have the initial sex offender registry requirement are not discussed in this case. )

The other points of the dissent were discussed above through discussing the Majority’s response to their arguments.

Additional thoughts on the case

There is a idiom in the law that bad facts make made law. In some ways, that may be a bit of what happened here. This is a case where it is hard to be sympathetic to the minor. He engaged in unwanted sexual conduct. He arguably put the adult woman, who did not want his attention, in a bad position because she had child pornography on her phone. What would have happened if she had not told the police and it somehow came out that she had child pornography? Even if she tried to delete it?

The Dissent focused on the instances where “better facts” may have created opportunities to create exceptions in the law, like grooming and the claim that photos sent in connection with grooming would result in the prosecution of the child. But the ideal facts weren’t before the court, instead the instant case involved a minor who sent unwanted photos as a part of a yearlong harassment of the recipient. This is a crucial difference that would seem to create a situation that does not trigger protecting the child as a possible victim.

In our government that seeks to be a balance of powers, this case is perhaps an important trigger for our state legislature to address this issue and to do so in a more informed way than can be done through case law can do.

Here’s a link to some 2015 research on what states have done regarding sexting. Some of the things this chart included where whether the sexting law addressed issues of minors – sending or receiving, penalty diversion, penalty informal, penalty misdemeanor, penalty felony, and interestingly whether a state has a revenge porn law. It also provides the summary of information about the state’s laws and links to find the statutes. Some interesting examples are:

New York
The two persons involved in sending and receiving the message must both be under twenty and must be within five years of age from each other. They will have to participate in an education reform program that involves a maximum of eight hours of instruction that provides information regarding the legal consequences and non-legal consequences of sexting, and the problems associated with technology and bullying.
http://assembly.state.ny.us/leg/?default_fld=&bn=A08170&term=2011&Summary=Y&Text=Y

 

North Dakota
It is a misdemeanor to create or possess a sexually expressive image without written consent of the individual. It is a misdemeanor to send sexually expressive images with the intent to harm the individual in the image who has a reasonable expectation of privacy; or after being told by the individual, parent or guardian does not consent to distribute the image.
http://www.legis.nd.gov/assembly/62-2011/documents/11-8225-02000.pdf

Interestingly most of the discussion on this chart seems to address a particular issue where something occurs in a nonconsenual manner, i.e., one child has in their possession a photo of another and forwards it on in some way.

The question facing legislatures would be whether to completely remove any criminal penalties when minors send photos to each other. This issue is complicated because consent can be a complicated issue. In 2015, there was sexting scandal in two Bothell junior high schools (Canyon Park and Skyview junior highs). Girls were pressured to send photos, and any who sent a photo were pressured to send more or their initial photo would be disseminated. There was a Degrassi story line that involved a cheer team raising money by sending photos that was incredibly plausible.

There are also pressures about what couples do. “Sexting” is common enough that it has its own Wikipedia entry, which says it was included in 2012 in the Merriam-Wesbster’s Collegiate Dictionary. This Wikipedia entry also says a 2009 study (which is ancient in our evolving world of technology) claims that 4% of teens ages 14-17 have sent sexually explicit photos of themselves. Apparently there’s even a thing called “joke sexting” which may be a form of nonconsensual sexually explicit photos.

Revenge porn is definitely an issue. “Revenge porn” is when you send a sext to one person, like a significant other, you break-up (or they’re just a creep) and they forward it on to friends or even to your friends, teachers, employers, etc. Basically the first photo was consensual, but the future uses are nonconsensual.

Bottom line, sexting isn’t a simple issue. To assume that sexting is primarily photos sent in consensual manner and therefore there should not be any consequences for minors engaging in sexting is short-sighted. That being said, I’m not a fan of criminalizing minors and some of the diversion-type programs that other states have seem far more appropriate than more severe felony or sexual offense charges that could put teens on sexual registries. Perhaps if the laws can come up with some rational and ethical guidelines, they will make enough sense to youth to help them act in responsible ways, taking into consideration that no law will likely stop youth from sending sexually explicit messages to each other.

Washington State Supreme Court Cases – week of 6/30/17

The Sate Supreme Court had four decision this week. The topics ranged from meal breaks, domestic violence orders, forfeiture of property without a conviction, and an appeal of a second degree murder conviction (also domestic violence related).

Jun. 29, 2017 – 93564-5 – Brady v. Autozone Stores, Inc.
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=935645MAJ

When a case is in federal court and there is a state law that is a part of the case that the federal courts feel has not been adequately resolved by the state courts, the federal court will turn to our court to get an answer (“certified questions”).

The first question was whether there could be strict liability for not providing a meal break. The court said no (and noted that neither party supported this position).

The second questions was about who carries the burden to prove that an employer did not permit an employee to take a break. The court held an employee can establish a prima facie case by providing they did not get a timely meal break and then the burden shifts to the employer to rebut.

Jun. 29, 2017 – 93645-5 – Rodriguez v. Zavala
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=936455MAJ

The issue in this case was about whether a parent could petition for a protection order for their child. The Supreme Court found the lower courts read the statute unnecessarily narrowly when it read the statute to preclude a parent from obtaining a protection order for their child. The Supreme Court found that the child should have been included in the protection order.

The Supreme Court also held that exposure to domstic violence is harmful under the Domestic Violence Protection Act. Referencing a prior decision, the court stated, “a child is psychologically harmed or placed in fear by observing violence against a family member.”

“Ample evidence supports the view that direct and indirect exposure to domestic violence is harmful….It strains common sense to think that L.Z. was not somehow exposed to domestic violence given the facts of this case. ”

Based on this, the Supreme Court found that the trial court abused its discretion in failing to grant the protection order.

Conclusion:

Zavala’s violent threats against L.Z. are “domestic violence” under the plain language ofRCW 26.50.010(3), and Rodriguez properly petitioned for a protection order on L.Z.’s behalf based on her reasonable fear for him. Accordingly, we reverse the Court of Appeals. We also conclude that exposure to domestic violence constitutes harm under the DVP A and qualifies as domestic violence under chapter 26.50 RCW. Because the trial court failed to consider the harm to L.Z. based on an incorrect reading of .010(3), it abused its discretion.

Jun. 29, 2017 – 93907-1 – City of Sunnyside v. Gonzalez
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=939071MAJ

Police are allowed to take property if it is connected to drug manufacturing or distribution (there is significant critique of this policy in discussion of criminal justice reform).For law nerd, RCW 69.50.505. The court noted the case is highly fact-specific. In discussing the law, “the court stated the statute generally does not contemplate forfeiture where the only violation is mere possession of a controlled substance; the violation usually must involve drug manufacturing or transactions.”

The “seizing law enforcement agency” (the City in this case) bears the burden “to establish, by a preponderance of the evidence, that the property is subject to forfeiture.” The court noted that there is a difference between the federal and state statutes.

Furthermore, the briefing from both parties appears to assume that forfeiture is allowed pursuant to RCW 69.50.505(1)(g) for personal property if the property is “traced as the proceeds of illegal drug activity.” Pet. for Review at 1 O; see also Answer in Opp ‘n to Pet. for Review at 6. While this assumption may be appropriate as applied to the federal forfeiture statute, 21 U.S.C. § 881(a)(6), it is inconsistent with the plain language of Washington’s statute, which allows forfeiture of personal property that was “acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter,” RCW 69.50.505(1)(g) (emphasis added).

 

CONCLUSION
Even where the question is limited to whether substantial evidence supports a finding by a mere preponderance of the evidence, appellate review must be sufficiently robust to ensure that an order of forfeiture is in fact supported by substantial evidence so as not to deprive people of significant property rights except as authorized by law. This is particularly important in the forfeiture context because an individual may lose valuable property even where no drug crime has actually been committed, and because the government has a strong financial incentive to seek forfeiture because the seizing law enforcement agency is entitled

to keep or sell most forfeited property. RCW 69.50.505(7).

 

Jun. 22, 2017 – 92816-9 – In re Pers. Restraint of Lui
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=928169MAJ

Petitioner Sione P. Lui challenges his conviction for the second degree murder of his fiancee, Elaina Boussiacos.  The Court of Appeals dismissed each claim as meritless and the Supreme Court affirmed.

The court rejected the claims of ineffective assistance of counsel and related prosecutorial misconduct claims. The court walked through the various claims and analyzed each one concluded there was no basis for the claim. The court rejected the Brady violation claim, the juror misconduct claim, and the newly discovered DNA evidence (there was blood the gearshift the jury new did not belong to the defendant and they later matched the blood).

Conclusion

We affirm the Court of Appeals’s denial of Lui’s claims and dismissal of his personal restraint petition. Lui is not entitled to a new trial due to ineffective assistance of counsel, prosecutorial misconduct, or newly discovered evidence. Nor is he entitled to a reference hearing to determine whether counsel was sleeping at trial or whether the State withheld exculpatory or impeachment Brady evidence, or to prove his juror misconduct claim.

Tragic Consequences of Words – Bullying Words Led to Involuntary Manslaughter Conviction

Can mean words create allow a court to hold someone responsible in criminal court for the suicide of another person? According to a recent article by the New York Times on a case in Massachusetts, the answer is yes.

According the article, teenagers in an opposite-sex relationship were dating. The boyfriend had previously had suicidal ideation and friends and family had helped him overcome the feelings. Years later, when he had similar feelings and turned to his girlfriend, she told him to do it. When he got out of a truck he was filling with a lethal gas, she told him to get back in the truck. There were also many other texts, not discussed in detail in the article, but it sounds like they were not supportive.

This case was heard before a judge, not a jury. For the judge, the fact that he got out of the truck and she told him to get back in the truck was  a crucial turning point for her ability to be held criminally responsible.

This is a decision at a trial court level in Massachusetts, which means that it is a case that will require other courts to follow its lead. It does not establish case law (i.e., precedent that courts are required to follow similarly to a statute or written law).

Nevertheless, some cases, in the mere seriousness become part of a cultural identity (i.e., the McDonalds’ coffee burn case) and they influence us. This case could be one of those cases. Words, uttered through technology, miles away from where the suicide occurred were enough to be considered a major factor in why a young man committed suicide.

One of the significant components of this case, from the position of someone who thinks a lot about bullying in schools and how you find ways to address it, is that the girlfriend was struggling significantly with mental health issues. This is consistent with the date from bullying research. Bullies often have greater suicidal ideation than the people they bully.

The issues are rarely ever good guy versus bad guy.  But we use laws to help ensure that we have guidelines to do no harm and for consequences when there is a harm. Technology has altered our lives. Had the boyfriend been alone, without a phone, would he still be alive? Would he, with time to himself and his own thoughts have decided that he wasn’t ready to end his own life? He did get out of the truck.

It would be nice to think that people would not engage in certain behavior because it is harmful. That it wouldn’t matter whether you could “get in trouble” for the behavior, but that you would simply chose not to do things that harm other people. But the reality is, that is not the case. I agree with the parameters the judge applied. The young man got out of his car and she told him to get back in and complete the suicide.

The future is unknown for how we will manage the wild landscape of technology, bad behavior, criminal behavior, and civil liability, but this case and many other laws and pushes for legislation make it clear, that there will be rules that govern the cyber world.

Washington State Supreme Court Case Re: School Negligence

The Washington State Supreme Court just issued a decision regarding school liability in a case where a 14 year female junior high student was raped by an 18 year male high school student who was also a registered sex offender. Approximately two years before, the male student, in the same school district, sexually assaulted a different junior high student. He was charged with indecent liberties and suspended for the rest of the school year. He was required to register as a level one sex offender and was not allowed contact with people two or more years younger than himself.

It is unclear to me whether the same principal was at the school when the original incident happened, but the principal at the time of second incident was notified by the Pierce County sheriff that the male student was registered sex offender. The record indicates that the principal did not inform the male student’s teachers, coaches, or relevant staff of the male student’s sex offender status. The evidence suggested that the principal did nothing to establish a safety plan and to help the male student avoid students two or more years younger than him.

The male student was allowed to participate in track and ran varsity for the Bethel High School varsity team. The high school and the junior high shared the track field. The male student was described as acting like a coach and mentor to the younger students on both schools’ teams. During practice a mutual friend introduced the targeted student and the aggressor. The very next day he invited her to lunch after school and she skipped track practice with the intention of going to Burger King for lunch, instead the male student took her to his home, under the pretense he had forgotten something, and then he raped the female student.

The female student told a friend and the friend told the school and the girl’s parent. The police were called and the male student was charged with third degree rape and plead guilty to second degree assault.

The trial court dismissed the case on summary judgment and the Supreme Court was addressing the questions: (1) Whether the school district’s responsibility to protect the student ended, and therefore its liability ended, when she left campus? And (2) Whether the alleged negligence, as a matter of law, could be the proximate cause of her injury?

A side note about proximate cause

Since the concept of “proximate cause” is central to the court’s analysis I want to elaborate on the issue for clarity for nonlawyers (the majority also did provided a quality description). This is a legal concept that involves two concepts – cause in fact, and legal cause. Cause in fact means that “but for” the A, B would not have happened. Legal cause is a policy determination about how far the consequences of a defendant’s acts should extend. There can be more than one proximate cause of an injury, and something else by a third party does not necessarily break the causal chain from the original negligence to final injury.

A couple of overly simplistic examples:

Proximate cause does not exist: D is texting and inadvertently lets her foot of the gas and rear ends E at a stop sign. D has a hummer and E has smart car, so there’s some damage, but everyone seems fine. A couple days later, E decides to go to E’s doctor because E has a sore neck that doesn’t seem to be going away. While coming back from the doctor, E is robbed. There is no proximate cause for D for the loss of money E sustained in the robbery because it is not a foreseeable consequence that someone could get robbed on the way back from a medical appointment.

Proximate cause exists: A shoots B and B gets in a car and drive to the hospital, and en route to the hospital gets hit by C and is B delayed in getting to the hospital by 25 minutes. A is still responsible for any injuries related to the gunshot, even if the delay possibly exacerbated the injury, because it is reasonably foreseeable that if you shoot someone, they may have a hard time getting to help. Proximate Cause Stops Existing: B gets fixed at the hospital and two weeks later is at a routine follow-up appointment and slips and falls at the doctor’s office. B breaks their arm in the fall. While on some level it is foreseeable that B would have follow-up care and that some people have accidents, as a policy the slip and fall is disconnected enough from the initial gun shot that as a legal matter we are likely to say that the A is not liable for injury related to slip and fall, even though, but for the initial gun shot, B would likely not have been at the doctor’s office.

Back to the School Discrimination Case

The issues in the school negligence case before the Washington State Supreme Court was about whether or not the fact that the incident occurred in the male students home was enough of another factor as to interrupt the school’s potential liability. In the dissent’s view, the school’s responsibility ended because a school cannot control the behavior of students in their homes. Fortunately that was the dissent and their view, that as a matter of law the school cannot be liable for its negligent acts if the injury occurs of school grounds or not at school activities. Instead the majority held that it was reasonably foreseeable and the school district may be liable for a foreseeable injury that is likely a proximate cause for the injury.

This decision doesn’t mean that a jury will find the school district was negligent. The school district will still have an opportunity to try to demonstrate that it was not essentially their fault that the 14 year old student was raped by an 18 year old student. Although, given that the then Superintendent of Public Instruction (OSPI) said that “the haphazard nature of Bethel’s approach to keeping its students safe from registered sex predators frankly boggles the imagination” and that the district “fell unconscionably below the accepted standard of care ‘to protect students from dangers that are known or should have been known,'” I don’t think the school district’s chance of success is very high.

This decision does say that a school district’s liability does not end at the schoolhouse doors (to adopt an expression about student rights). I expect that it will be a high threshold for school district liability, but a situation like this, where a school district has two types of knowledge, their own disciplinary history of the aggressor student and the report by the Sheriff’s office of the aggressor student’s sex offender registry status and the requirement not to be around students who were two years younger and that the day after he met this student at track practice he raped her make this a particularly compelling case. Even with the compelling facts, it was a narrow (5:4) decision.

Additional Case Details: 

N.L. v. Bethel Sch. Dist., Docket No. 91775-2, Counsel for Petitioner: Francis Stanley Floyd and John Armen Safarli at Floyd Pflueger & Ringer PS; Counsel for Respondent: Julie Anne Kays and Robert Connelly Jr at Connelly Law Offices.

Amicus briefs were filed by Gerald Moberg for Jerry Morberg & Associates on behalf of the Washington State School Directors Association, Association of Washington School Principals, and Washington Association of School Administrators. 

Amicus brief on Behalf of the Washington State Association for Justice Foundation was filed by Bryan Harnetiaux, Valerie Davis Mcomie, and Daniel Edward Huntingon (the court Supreme Court Information Sheet references a brief, but the brief was not found on Court website with the links to the briefs in the case).

Briefs in the case can be found on the Washington State Courts website under Supreme Court Petitions for Review

Turning the Bainbridge Island Alleged Teacher Abuse into a Learning Moment

The Bainbridge Island Police Department has arrested 26-year-old teacher Jessica Fuchs for illegal sexual conduct with a 16-year-old sophomore (based on the charges, the student was likely 16 when all incidents occurred). I blogged about this case here. Inside Bainbridge has several articles regarding the case and the arrest. Bainbridge Islander also has articles as does the Kitsap Sun.

According to Inside Bainbridge she was charged with Sexual Misconduct with a Minor in the 1st Degree, a class C felony (RCW 9A.44.093, makes it a crime for a teacher to have sex with a student who is at least 16 years old, when the teacher is at least 60 months older than the student, a Class C felony is a maximum of 5 years in prison); Communication with a Minor for Immoral Purposes, a gross misdemeanor (maximum of 364 days), and Tampering with a Witness, also a Class C felony.  If the student had been 15 when some of the incidents occurred other criminal laws would have also applied regarding rape of child or molestation of a child.

» Read more

Mercer Island School District v. Office of the Superintendent of Public Instruction and parents of B.W.

On April 13, 2015, Division I issued its decision in the Mercer Island racial discrimination case that I previously wrote about here. Division I found that in the the administrative context (i.e., working with the school district and OSPI as opposed to filing a civil suit for damages in court), school districts that have actual or constructive notice (also known as the knew or should have known standard) of racial harassment, the school must take immediate and appropriate action to investigate or otherwise determine what occurred. It further requires that every investigation should be prompt, thorough, and impartial. Finally, it imposes upon the school the duty to take prompt and effective steps reasonably calculated to end harassment, eliminate any hostile environment and its effects, and prevent harassment from recurring.

The knew or should have known standard is a lower standard than the deliberate indifference standard. The court noted that even though the deliberate indifference standard creates a lower burden for a school district, to avoid administrative liability the school district still failed to meet the deliberate indifference test. The court likely went into this discussion to make sure that if the case was appealed to the State Supreme Court that the justices would not doubt how Division I would have ruled. This would mean if the State Supreme Court eventually reverses the knew or should have known standard, the overall holding of this case will not be reversed, because the court of appeals clearly demonstrated that they would have ruled the same way using the higher threshold.

Mercer Island School District, Res. V. N.W. And R.W., On Behalf Of B.w., Apps., Docket No. 71419-8-I, File Date: April 13, 2015; Opinion: Dwyer, Concurrence in part: Verellen; Counsel for Appellant: Ernest Saadiq Morris; Counsel for Respondent Parker a Howell and Jeffrey Ganson Counsel for OSPI and Amicus on behalf OSPI: Justin Kjolseth; Amicus on behalf of the ACLU: Sara Dunne and La Rond Baker

Oversimplified facts: A student targeted B.W., calling him names on multiple occasions. B.W. The targeted student’s grades dropped in that class. Part of the reason the grade dropped was that instead of writing on topic, he submitted two papers describing a random and violent accident happen to the aggressor student. Once the targeted student transferred out of the class, he began earning “A’s” and there were no more concerns about his behavior.

The court first focused on the deliberate indifference standard. In order to satisfy the deliberate indifference standard, the parents were required to establish: (1) racial discrimination; (2) knowledge by an appropriate person of the discrimination; (3) deliberate indifference by the district; and (4) discrimination that was sufficiently severe, pervasive, and objectively offensive that it can be said to have deprived the targeted student of access to the educational opportunities or benefits provided by the school.

Per the opinion, the school made several mistakes in dealing with this situation. Based on the deliberate indifference standard, these include:

  • The school district looked at the incidents involving the harassment separately instead of holistically. A school district acts with deliberate indifference when it responds to report of a discriminatory act that is clearly unreasonable in light of all of the known circumstances. 
  • The  school failed to properly investigate the claim of discrimination, which resulted in a clearly unreasonable response to the harassment. 
    • Failed to have compliance coordinator/officer and failure to update its policies to reflect the nondiscrimination law and OSPI’s May 2011 regulations.
    • Co-principals conducted inadequate investigations, failing to follow even their own out-of-date policy and doing the following:
      • The school and the District only interviewed two of the four students working on the group project where the racial harassment incidents occurred. The reasons for not interviewing additional students were not credible, specifically that an Apserger’s diagnosis would have made B.W. mishear the racial comment. The District didn’t provide any any evidence to support that conclusion that an Asperger’s diagnosis would make B.W. unable to accurately hear and report a racial epithet.
      • The school failed to discover basic information that contextualized B.W.’s complaint and gave further credence to B.W.’s allegations.
      • The school continued to informally investigate the report after the parents told him they wished to file a formal complaint, which would have been handled by the District as opposed to the school.
      • The District did not discuss B.W.’s essay. The teacher expressed concern that if the parents saw the essay, the parents would see it as confirming the racial harassment allegations.
    • Formal investigation by the school’s frequently used outside counsel was “fraught with inadequacies.”
      • Attorney investigator did not ask B.W. about the two essays, nor did she ask the teacher or co-principals to explain why they withheld the existence of the essays from the parents. The reports weren’t even included in the text of the report, but they were appended to the report, which is the first time the parents learned of the existence of one of the essays.
      • She did not account for the conspicuous discrepancy between B.W.’s grades in other classes and his grades in the class he shared with his harasser.
      • She did not address the ostensible connection between the discussion of Mexico and the racially charged comments between two students and B.W.
    • District failed to meaningfully and appropriately discipline the aggressor student. He was only told not to use race as the basis for angry comments and to sign an “anti-harassment contract.”
    • District refused to consider any scenario in which B.W. was not to blame for the conflict with the aggressor student, believing the conflict was due to B.W.’s social deficits. Apparently the school was frustrated because shortly after entering this school district, B.W.’s IEP was withdrawn at the parent’s request.

Having satisfied the first three prongs of the deliberate indifference test, the next question is whether it was sufficiently severe, pervasive and objectively offensive so that it can be said to have deprived B.W. of access to educational opportunities or benefits provided by the school. The court said the racial comments were beyond simple teasing and name-calling, the student made it clear that it wasn’t that his skin color made him different, but that it made him stupid. It was also done in the context of group setting, increasing the humiliation B.W. felt. B.W. was new to this school, he cried in public, he wrote disturbing essays, and he received uncharacteristically low grades in this class.

Based on that, the court held that harassment was sufficiently severe. Then the question is – did it interfere with equal access to educational opportunities or benefits? The “dropoff” in grades can provide “necessary evidence of a potential link between” a students diminished educational opportunities.” B.W. was also forced to remain in the class with the harassing student. Once B.W.’s parents transferred him out of the class, his grades immediately went up to match his high achievement in his other classes.

Lower Standard Analysis 

After stating that the facts support a finding that the school district failed to meet the deliberate indifference standard, the court turned its discussion to the question of whether in the administrative context deliberate indifference applies. The Office of Civil Rights (of the U.S. Department of Education, the administrative agency tasked with enforcement of the Federal counterparts to the Washington nondiscrimination laws) requires “upon receiving actual or constructive notice of racial harassment, the school ‘take immediate and appropriate action to investigate or otherwise determine what occurred.'” Then the  District is required to take “prompt and effective steps” to end the harassment.” Applying this more lenient standard the court found that “it is abundantly clear that the District’s response violated the EEOL.” (EEOL is the Equal Education Opportunity Law prohibits discrimination on a several protected classes, including race.)

Concurrence

Verellan concurs that the District failed to meet the deliberate indifference standard in addressing the discrimination. Verellan would not take the next step and determine whether the OCR know or should have known standard should have been applied.

Take Away Points

When parents complain to the school district, or the school district knew or should have known about discrimination based on any of the of the protected classes identified in RCW 28A.642.010:

  • race,
  • creed,
  • religion,
  • color,
  • national origin,
  • honorably discharged veteran or military status,
  • sexual orientation including gender expression or identity,
  • the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability.
  • Sex (is covered under the Sex Equity Law RCW 28A.640)

a school must take immediate and appropriate action to investigate or otherwise determine what has occurred. The investigation should be prompt, thorough, and impartial. If discrimination exists (including harassment) the District must take prompt and effective steps to end the harassment.

Missing Parts of the Opinion

Difference between Federal and State Laws

I would have liked to see a greater discussion on state vs. federal law and whether or not the deliberate indifference standard is truly required in state discrimination cases. The other case decided by Division I on this issues, S.S. v. Alexander, 143 Wn. App. 75, 177 P3d 742 (2008) also did not discuss this issue. The court mentioned Title IX and Title IX, which are interpreted consistently with each other. Both are based on the Congress’s power under the Spending Clause. Basically compliance with nondiscrimination rules are ensured because the federal government can place conditions on the receipt of federal funds. If schools take federal funding, they agree to abide by the rules, in “what amounts essentially to a contract between the Government and the recipient of funds.”  (Citing Gebser v. Lago Visto Indep. Sch. Dist. 524 U.W. 274, 286 (1998). 

There is no express right to a private suit in Title VI or Title IX, but the Supreme court has held that both statutes are enforceable through an implied right of action. The Supreme Court clarified that this private right of action is only available when a school acts with deliberate indifference. It would be inconsistent with the SPending Clause origins of Title IX and Title CI to impose damages liability unless a school authority with the power to remedy the discrimination had actual notice of and was deliberately indifferent to the conduct.

Despite discussing the above reasoning and pointing out that Title IX and Title VI require a deliberate indifference standard, the court doesn’t discuss the state statues and how they are not based on the Spending Clause. States get to tell schools what kind of nondiscriminatory standards they must comply with without basing it on any condition of funding. Plus our state statutes have express rights to pursue actions in civil courts. It’s not implied. Schools are on constructive notice that the must not discriminate and if they discriminate there may be administrative and judicial consequences. This distinction seems very important but it isn’t discussed. (See Pages 32-34 of the court’s decision for more discussion on this).

Multiple Identities 

The court likely limited its discussion to race because that was the issue before it, but since there was so much discussion about the targeted student’s Asperger’s diagnosis, I would have like to have the court point out that the failure of the school district to believe the targeted student because of his Asperger’s diagnosis was also a form of discrimination. Students who have multiple identities are often targeted for bullying because of the fact that they have multiple identities and the decision was remiss to spend so much time discussing the way the Apserger’s diagnosis interfered with the District’s handling of the case without stating that was also discriminatory.

Distinction between harassment, intimidation and bullying (HIB) and discrimination.

I was disappointed that there was no discussion about the difference between harassment, intimidation and bullying (“HIB”) and discrimination. There has been a lot more emphasis put in schools about HIB, there are state model policies and procedures. On Page 12, the court noted that the District’s November 4 decision was pursuant to the District’s Harassment, Intimidation, and Bullying policy. This flags for me that it was the wrong policy as it is in connection with a different law. The distinction between generalized HIB and HIB targeted at a student based on one of the protected classes identified in the state statue trigger different requirements for action. HIB targeted based on a protected class is likely going to be discrimination. Generalized HIB require individualized responses. HIB against a student because of a protected class requires schools to address the school atmosphere/climate and review their policies and procedures to make sure the school is not contributing to the issue of discrimination. HIB based on federally protected classes may overlap with federal nondiscrimination laws and may require a concurrent Title VI or Title IX investigation.

 

Pending Education Discrimination Case

On February 26, 2015, Division I heard Mercer Island School District v. N.W. and R.W. (Case no. 71419-8 – follow this link and type the case number to find all materials related to this case).

The rough outline of the case is that a student of color was targeted with racial comments by one main student and a couple of that students friends. The school district did respond, but there seems to be questions of whether the school district responded in a timely and appropriate manner.

When the parents complained about the students behavior and the school’s response, the school said there was no discrimination. The parents appealed to the school board and the school board denied the existence of discrimination. The parents then appealed to the Office of the Superintendent of Public Instruction (OSPI) and there was a hearing before an administrative law judge (ALJ). The ALJ found the school had acted in a discriminatory manner. The school district appealed in Superior Court and the Superior Court overturned on the ALJ’s major findings. The parents appealed the Superior Court decision to Division I.

At oral arguments, the judges honed in on what standard should be used in the administrative context when determining the liability of a school district. The School District argued for a high standard of “deliberate indifference” and the attorney for the parents, Ernest Saadiq Morris, noted that the Administrative Law Judge did use the deliberate indifference standard but that even under this standards the school district did not prevail with the ALJ and that based on administrative law, the ALJ findings should be upheld. In response to the specific question regarding the appropriate standard, the parents agreed that in the administrative context it should be the lower standard known or should have known standard is more appropriate, although I got the impression there was a concession that the higher standard should apply in a monetary damages setting.

In the guidance that exists on this question of the standard in the administrative context, both the Department of Justice and OSPI have stated that the known or should have known standard should apply and that schools are required to take prompt action to correct the discrimination and the effects of discrimination.

The deliberate indifference standard the school district advocated is based on the case law regarding when a individual files a suit against a school district for monetary damages. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), while the U.S. Supreme Court found a school district could be liable under Title IX for peer based sexual harassment, the standard was deliberate indifference – recipients response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.

Based on oral arguments – it seems that the main question the court will answer in its opinion is – in the administrative context can schools be held liable in the sense of requiring administrative fixes, improving policies and procedures, based on the known or should have known standard?

An important distinction that I did not feel was teased out is the reason that the court found reached the deliberate indifference holding. Title IX is considered a spending clause law, meaning that in order to receive federal funds a school district has to agree not to discriminate. However, the statutes at play here are state statutes, not federal statutes. States do not have to rely on spending clauses or anything else. They get to make rules within their borders and the rules have to be followed. The nondiscrimination laws, coupled with our laws against harassment, intimidation and bullying, make it clear that our legislature intends on schools having an affirmative duty to make sure that kids are safe in schools, even for peer harassment issues.

One of the Judges on the panel hearing this case was Judge Dwyer. Judge Drwyer wrote the majority opinion in one of the only state based discrimination appellate decision, a 2008 Title IX case by the name of S.S. v. Roe/University of Washington, 143 Wn. App. 75 (Wash.App. Div 1 2000)(case involved a student football player raping a student and the University’s poor response). In this context, Division I upheld the deliberate indifference standard. This was a suit for monetary damages and there was not a significant discussion on and Division I cited the Davis court that “funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school.”

Division I follows the deliberate indifference theory when looking at the University’s potential liability. Again, this was a Title IX case, not a case based on the state nondiscrimination or sex equity laws.

It will be interesting to see what the court decides and whether either of the parties will appeal the decision to our state supreme court.

High School teachers and coaches and sexual acts with students

A recent article in the Seattle Times, “Interlake High teacher charged in sex case with female student” involves an issue that Justice & Equality Legal Services seeks to address – sexual harassment, which includes sexual assault in the school setting. A teacher having sex with a student in the K-12 setting is considered a criminal act and so there are criminal penalties that exist.

In 2003, the Seattle Times did a series titled “Coaches who Prey, The Abuse of Girls and the System that Allows it.” The series Times found 159 coaches who were disciplined or fired because of sexual misconduct; yet 98 of them continued working with children. According to this series:

Even when school officials find wrongdoing, they often bow to pressure from the teachers union, handing out mild punishments or none at all.

Districts routinely keep investigations secret by failing to document them or by signing agreements with accused coaches promising not to tell. In fact, the Times found 29 coaches who were passed on to new school districts after being disciplined, pushed out or fired for sexual misconduct.

O’Hagan, Maurneen, and Christine Willmsen, “Misconduct often goes unpublished by districts.” The Seattle Times (December 15, 2003). 

The series prompted the 2004 state Legislature to require school districts to disclose information about sexual-misconduct allegations and forbid the districts from entering into agreements to conceal such information — a practice that had been all too common. “Tardy efforts at troubling coaches.” Seattle Times Editorial (July 12, 2006).

 

The investigative report of the Seattle Times did not create a sea change in the policies of school districts in Washington. An Oak Harbor Swim coach made 20/20 when he was convicted of rape in 2010. Over his 30-year career he molested at least a dozen girls.

Now there is the Interlake High School case.

At JELS, we believe that this can change, but it requires the diligence and a the same commitment we ask of our kids around not being bystanders to bullying. The Times 2003 series included an interesting list of “How Parents can spot trouble before it’s too late.”  The recommend be wary of full-body hugs, rides home alone, being aware of cards and gifts, sleepovers at the couches house, even babysitting can be used for grooming, long or repeated phone calls to and from the coach (in today’s age, that should include instant message, snapchats, burnotes, emails, etc.), Out-of-town trips where it is difficult for parents to come along, a child suddenly quitting or losing interest, and coaches who jump from team to team or district to district.

I would also take it a step further and note that if you see these things, whether or not is happening to your child, you have an ability to file a complaint. In fact, since sexual predators typically look for a target that has fewer safeguards, so a student-athlete who has a parent who has to work and misses most practices and/or games, would be an easier target than a student whose has a parent present at practices or games.  You can file a complaint. Title IX complaints specifically can be filed by community members.

If you are aware of allegations of sexual assault, for instance your child tells you that a friend was touched by a couch, contacting police is something else parents should feel empowered to do.

For some reason, with regard to sexual assault more than other issues, people worry about false reporting and the possibility of destroying someone’s reputation more than other offenses. Studies show false reporting is similar to other crimes, which is to say it is very low. In addition, there are protections that exist, police will have to do an investigation, schools will do an investigation. If they feel like there is not enough evidence no report gets filed.

The reality is that kids far more often than not, don’t tell adult figures when sexual assaults occur. There is self-blame, minimizing, shame, and fear, often fed by the perpetrator that when it is their word against the perpetrator that no one will believe the student over the coach. Or that even if they do, if the coach is well-liked in the community that people will chose not to believe the child.

This means, when you hear little things, and you wonder if it’s worth being concerned about, the answer is yes. Put the concern first and figure out if there is anything of substance behind the concern. Most coaches and teachers aren’t sexual predators. Most care passionately about students and would never want to see any harm come to the child. But those who are sexual predators have access to lots of children and are likely repeat offenders, or will be, especially when they realize that their behavior has minimal consequences.

Title IX, Harassment, Bullying, and Illegal Acts

In 2011, an important and still relevant article was written by Nan Stein, Ed.D. & Kelly A Mennemeier, B.A., “Addressing the Gendered Dimensions of Harassment and Bullying: What domestic and sexual violence advocates need to know.” The point of the article was that in the recent wave of concern over bullying, the concept of harassment is often folded into this. The problem with folding these two issues together is that there are federal bans on discrimination in education, bans that already include harassment.

The problem is, in the pressure over bullying, the stronger tool of the federal law prohibitions against discrimination are often ignored. Citing an Office of Civil Rights “Dear Colleague” letter to school districts across the country, the article points out:

The label (used by the School District) used to describe an incident (e.g., bullying, hazing, teasing) does not determine how a school is obligated to respond. Rather, the nature of the conduct itself must be assessed for civil rights implications. So, for example, if the abusive behavior is on the basis of race, color, national origin, sex, or disability, and creates a hostile environment, a school is obligated to respond in accordance with the applicable federal civil rights statutes and regulations enforced by OCR

The article discusses how state laws can vary. In Washington, our anti-bullying law contains an anti-harassment provision, making it even more likely that civil rights violations will be lumped into the general policy of bullying. For example, I was looking at the website for Bainbridge Island Schools. On that they reference a case, Webster v. Bainbridge Island School District, Kitsap County Sup. Ct. Cause No. 10-2-00346-2. In the Supplemental Letter to Verdict provided by the School District, it is clear that Title IX issues came up (the Title IX claim was dismissedby the court because it did not find, “deliberate indifference” but the special verdict form found the school district negligent.  In the thoughtful press release of November 6, 2013, the link provided by the school district is the report form for Harassment, Intimidation, and Bullying.

On the “For Families Directory” there is no information about Title IX. In fact, when doing a search for “Title IX” in the menu bar the search result returns, “There are no records.” A search for Title IX without quotes returns a few items, but nothing about Title IX. This is with a school district that has been found negligent and is attempting to remedy issues. While I only looked at Bainbridge Island for this particular post, I have no doubt that if I looked at other school districts it would be the exception that provides a clear explanation of when students behaviors violate state laws, when they violate federal laws, and when they are criminal behaviors.

Back to School Basics on Harassment & Bullying in K-12 Public Schools

School starts in Washington State for most public schools this week. In Washington, we have almost 300 school districts and they educate more than one million students by more than 51,000 classroom teachers.

In each school district there are multiple schools (often referred to within the school administration culture as buildings). Each district is supposed to create its own policy for dealing with issues around discrimination and bullying. The Office of the Superintendent of Public Instruction (OSPI), which is the agency that oversees K-12 public education in Washington, has established model policies and procedures (more details below).

Each school district is supposed to identify a compliance office, both for Title IX and for bullying, harassment, and discrimination (you are correct if you think there are overlaps between Title IX and harassment and bullying). The compliance officer is supposed to be the primary contact regarding the anti-harassment, intimidation, and bullying policy, and the person who receives copies of all complaints. They are responsible for insuring the implementation of the HIB policy and procedure. As of the writing of this post, the list of compliance officers available is for the 2013-14 academic year. Technically this information is supposed to be provided in materials that go out to parents, but the reality is that it is often not provided. In fact, all too often, compliance officers do not even know that they are compliance officers. Despite the existence of a compliance officer, all staff are responsible for receiving oral and written reports.

Each school district is required to have their own policy and their own set of procedures for how to deal with bullying and harassment. The district policy has to either mirror the State Model Policy and the State Model Procedures or somehow improve upon the state policies. The District Policies can be incredibly hard to find. One tip that can help, is that they often use the same naming convention as the Statewide Policy (Policy No. 3207) and Procedure (Procedure No. 3207P). This means they have to have mechanisms for reports of harassment and bullying to be reported. They must have procedures for investigating the reports, timelines for investigating and reporting – the model policy requires a timely response – the whole process of complaint, investigation (5 days), report (2 days after the report), and appeals (file within 5 days, response within five to ten days). The focus and commitment is on making sure that schools are safe learning environments.

State Model Policy Highlights: 

“Harassment, intimidation, or bullying” means any intentionally written message or image—including those that are electronically transmitted—verbal, or physical act, including but not limited to one shown to be motivated by race, color, religion, ancestry, national origin, gender, sexual orientation, including gender expression or identity, mental or physical disability or other distinguishing characteristics, when an act:

  • Physically harms a student or damages the student’s property.
  • Has the effect of substantially interfering with a student’s education.
  • Is so severe, persistent or pervasive that it creates an intimidating or threatening educational environment.
  • Has the effect of substantially disrupting the orderly operation of the school.

Nothing in this section requires the affected student to actually possess a characteristic that is a basis for the harassment, intimidation, or bullying.

State Model Procedure Highlights: 

  • Any school staff who observes, overhears, or otherwise witnesses harassment, intimidation, or bullying or to whom such actions have been reported must take prompt and appropriate action to stop the harassment and to prevent its re-occurrence.
  • Reports may be filed anonymously, confidentially, or non-confidentially, meaning the student may chose to disclose her/his identity.
  • Anonymous reporting is a situation where a someone witnesses issues within the school, but for a variety of reasons, including not wanting to become a target of the bullying, the student wants to do it anonymously. When a report is anonymous, the possible responses to the bullying will be enhanced monitoring of an area (i.e., a locker room during 5th period). Unless something is discovered through this enhanced monitoring no discipline will be done based on anonymous reporting.
  • Confidential reporting allows a student to keep their identity secret while discussing the specifics of an incident. Similarly to anonymous reporting, the school may respond by enhancing monitoring of problem areas. The school may also do safety planning with the student being harassed or bullied and seek to come up with more individualized responses, but no discipline will occur unless something is discovered through the enhanced monitoring.
  • Non-confidential reporting allows for the possibility of discipline to occur based on the reporting.  School districts still need to be descrete with the information, restricting the information to those who need to know.

State Model Policy Investigation Requirements (quoted from the Model Policy):

All reports of unresolved, severe, or persistent harassment, intimidation, or bullying will be investigated with resonable promptness. Any student may have a trusted adult with them throughout the report and investigation process.

a. Upon receipt of the Incident Reporting Form that alleges unresolved, severe, or persistent harassment, intimidation or bullying, the school or district designee will begin the investigation. If there is potential for clear and immediate physical harm to the complainant, the district will immediately contact law enforcement and inform the parent/guardian.

b. During the course of the investigation, the district will take reasonable measures to ensure  that no further incidents of harassment, intimidation, or bullying occur between the complainant and the alleged aggressor. If necessary, the district will implement a safety plan for the student(s) involved. The plan may include changing seating arrangements for the complainant and/or the alleged aggressor in the classroom, at lunch, or on the bus; identifying a staff member who will act as a safe person for the complainant; altering the alleged agressor’s schedule and access to the complainant, and other measures.

c. Within two (2) school days after receiving the Incident Reporting Form, the school designee will notify the families of the students involved that a complaint was received and direct the families to the district’s policy and procedure on harassment, intimidation, and bullying.
d. In rare cases, where after consultation with the student and appropriate staff (such as a psychologist, counselor, or social worker) the district has evidence that it would threaten the health and safety of the complainant or the alleged aggressor to involve his or her parent/guardian, the district may initially refrain from contacting the parent/guardian in its investigation of harassment, intimidation, and bullying. If professional school personnel suspect that a student is subject to abuse and neglect, they must follow district policy for reporting suspected cases to Child Protective Services.

e. The investigation shall include, at a minimum:

• An interview with the complainant.
• An interview with the alleged aggressor.
• A review of any previous complaints involving either the complainant or the alleged aggressor.
• Interviews with other students or staff members who may have knowledge of the alleged incident.

f. The principal or designee may determine that other steps must be taken before the investigation is complete.

g. The investigation will be completed as soon as practicable but generally no later than five (5) school days from the initial complaint or report. If more time is needed to complete an investigation, the district will provide the parent/guardian and/or the student with weekly updates.

h. No later than two (2) school days after the investigation has been completed and submitted to the compliance officer, the principal or designee shall respond in writing or in person to the parent/guardian of the complainant and the alleged aggressor stating:
• The results of the investigation.
• Whether the allegations were found to be factual.
• Whether there was a violation of policy.
• The process for the complainant to file an appeal if the complainant disagrees with results.

Appeal Process – must appeal to the district superintendent within 5 days of receiving the written decision. Can then appeal to the school board by filing a written notice to the secretary of the school board on or before the fifth school day following the superintendent’s decision. The appeal must be heard on or before the 10th school day after the notice of appeal is filed.

Seattle Schools Under Investigation for Title IX sexual violence issues

A July 2014, article in Al Jazeera discussed the problem of rape in high school and school obligations. noting that high schools are even worse than colleges in dealing with sexual assault.

Last month the Department of Education’s Office of Civil Rights agreed, making Seattle Public Schools, which covers all of Seattle, one of 23 elementary and secondary school districts currently under federal investigation for Title IX sexual violence issues. The number of colleges under investigation recently reached 64.

The article also noted that the vast majority of high schools did not understand that Title IX applied to them. This is a well-known problem to those of us in the field. While schools are required to have a Title IX coordinator and they do at least have someone in name, because they submit that information to OSPI (Office of the Superintendent of Public Instruction). The reality is that many Title IX coordinators do not even know that they are the Title IX coordinator. Of those that are aware, many of them have little understanding of the important role their position plays in making sure our children are safe.

It is this ignorance that makes it so important for parents to have a knowledgeable advocate on their side who can push the school to comply with the laws and create a safe space for students.