LGBTQ Rights Going Forward – Possible Impact of a Trump Presidency

During this campaign cycle, we saw the backlash to broad spectrum of efforts to obtain full equality. While Obama was not perfect, under his administration, movements of the people flourished. Immigrant communities organized, raised awareness, and applied pressure achieving at least a few minor gains, like the DREAM Act. Black Lives Matter flourished. While the president was not as forceful as I would have liked, he did defend the movement and under his leadership investigations occurred into police accountability/abuse and reports were issued that have the power to create some systemic change. He raised awareness of about the abuse of our system of incarceration and took steps available on the federal level.

The LGBTQ movement was also able to thrive under Obama. He appointed several members of our LGBTQ community into key leadership positions. Questions about fair housing, included questions about whether LGBTQ people were discriminated against. He also took a position that the ban on marriage discrimination was wrong. When the Supreme Court finally remedied the long standing practice of denying marriage to same-sex couples, the Obama administration went to work on finding all of the places where the federal government was involved and removing any barriers to equality.

It is hard to believe sometimes that Lawrence v. Texas was decided in 2003. How on earth was it only about 13 years ago that some states still outlawed homosexual conduct (i.e., sodomy)?  When the barriers finally began to fall, full equality felt like it came at a rapid pace. This is why, despite all the growth we have had, in many ways the changing administration doesn’t change the longstanding advice for the LGBTQ community.

The people dedicated to these issues have issued FAQs and information. Lambda Legal has Post-Election Facts – Covering marriage (unlikely to see much change), trans youth, conversion therapy, hospital visitation, HIV and concerns about the repeal of Obamacare and hate crimes. NCLR has several blogs, Shannon Minter, their super smart legal director has this to say about the unlikely outcome of repealing marriage. The NCLR is also one of the best resources out there to understand state-by-state differences. The Transgender Law Center issued this Statement on the election.

In addition to these thoughts, I will add, no president, congress, or court has ever simply given the LGBTQ people rights. It has been a hard fought battle, that was based in some incredible activism changing hearts and minds.

It also doesn’t hurt our cause that LGBTQ people are everywhere. Race, religion, ethnicity, and many other identities find people still segregated, largely due to historic discrimination issues, but also because sometimes it is easier to live in communities where you see yourself, you know you are less likely to be targeted for harassment and violence, you know when you go to the store they will have beauty products for your hair, or a grocery store that will meet your kosher needs. This segregation doesn’t occur in the same way for the LGBTQ people, while as grown-ups we may seek out gayborhoods, we are raised Muslim, Evangelical, atheist, Jewish and every other religion. We are Black, Asian, Latinx, Native American/First Nations/Indigenous, White and every other race and combination of race and/or ethnicity. We come from conservative families to progressive to anarchistic families. It is simply impossible to shield yourself from loving someone, a son, daughter, auntie, uncle, parent, who may come out as LGBTQ and the more accepting world expanded the safety area for people to come out. It is impossible to exist in any identity without also having LGBTQ people as a part of that identity.

However, this change is recent. We have not lived in a post-Obergefell (Supreme Court case affirming the dignity of same-sex marriages and holding discriminating against same-sex people in marriage liscenses violated our constitution) world long enough to have let our guard down. Attorneys advising same-sex clients were still saying, get your documents and don’t delay.

What kind of documents should you get?

Transgender people should make sure their identity documents match their gender identity (to the extent possible as they predominately exist in the male/female binary). One place to turn for information on this available at the Transgender Law Center Identity Document Resources– it’s California focused, but it does have information about federal changes. Looking at the California info may also help you figure out how to look for the same in your own state.

Protect your relationship to your children. If you have read any other blogs I have written or seem me present, you have heard me say marriage equality does not equal parentage equalityGet a court order affirming parents are parents. This can be done a couple of ways. Many people are most comfortable with adoptions. There is case law to support that court orders adjudicating parentage will be given full faith and credit, this is essentially an order of parentage, similar to what has been historically called paternity. In Washington State, our law regarding determining parentage is gender neutral (Uniform Parentage Act / UPA, which despite its name is not uniform and many states haven’t adopted it, or they tweak it. Washington tweaked our UPA to be clear it included same-sex couples).

If you haven’t done this, and your family is splitting up, you can make sure that your parenting plan has a finding that you are the legal parents. Parenting plans have extra security under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA – and unlike the UPA it actually is uniform). There is also something called the Hague convention and signatory countries (countries who have agreed to follow the Hague rules) will also help with the enforcement of parenting plans). There are some concerns with something like this and possible rights and benefits that could flow to your child upon your death, so you should definitely explore other possibilities.

All LGBTQ couples should have estate planning documents – which a way of making you sound wealthy, but really means that you should have a power of attorney, medical directives, a will. These kind of documents are fairly easy to obtain. The reason for having them is mainly to have an additional weapon against discriminatory individuals at important times. These are also the kinds of documents people absolutely needed when there was no marriage. It was the only way that same-sex couples could link themselves in the eyes of the state.

Pay Attention – More Advice Will Come Out Once Trump is in Office with a Republican Congress

There is so much more we will learn in the coming months and years. The hateful rhetoric connected to this election has all of us justifiably nervous. The thing that helps keep me from panicking is remember that our government was set up to thwart major sweeping changes. It took a long time to get where we are and it will not be unwound easily.

Perhaps it means as states that are happy with having the marriage issue decided can try to clean up their statutes that banned marriage and explicitly say that same-sex marriage is allowed in their state (this would mean absent an amendment to our constitution marriages would still have state protection). While states are at it, they should make their laws regarding parentage and have two things clear (1) that families can affirm their parentage if they meet the terms of the UPA (which is basically that you consented to assisted reproduction while married or that you have lived with the child since birth for several years and held the child out as your own) and that the provision apply on a gender neutral basis, i.e., biology is not the only factor in determining parentage.

Also, be sure to reach out when you experience discrimination. The national organizations like Lambda Legal, NCLR, Transgender Law Center, and the Southern Poverty Law Center, need to know what’s happening in people’s lives to respond to it. Also, let your state organizations know. In Washington, groups like Legal Voice and the ACLU have been spearheading many efforts. Our Attorney General created a Civil Rights Division. The QLaw Foundation has a legal clinic that provides free legal advice on civil question (i.e., non-criminal).  Gender Justice League has resources on health insurance issues (among many other things). Ingersoll Gender Center has support groups, resources, and information about providers. There are also many other groups that focus on intersectionality: Entre Hermanos, Trikone NW, NQAPIA, and many more.

I’ll keep trying to update about what’s happening in Washington as several interesting cases concerning LGBTQ people are before our state Supreme Court this week.

Parting thought: Please take care of yourself, legally, socially, and emotionally.

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

Difficulties in Pursuing Bias Claims – Especially when Unrepresented

In April 2016, the Washington State Court of Appeals (Division II), issued an unpublished opinion of a case involving claims of discrimination based on race (African American family) and religion (Muslim family). An unpublished opinion is an opinion that the court believes does not contain facts/law that create a situation where the opinion can be useful in subsequent cases. Until recently, parties could not cite to unpublished decisions, this rule is changing and parties may be able to provide it to a court, but a Court of Appeals may not rely on the case in a subsequent case, meaning an unpublished case does not create case law that must be followed in future cases.

Ahsson And Kari Spry, Appellants V Peninsula School District, Respondent, Docket No. 46782-8; Opinion Author – Melnick; joined by Maxa and Sutton. Attorneys for Appellants – Pro se (no attorney representation). Attorneys for Respondent – Jessie Lee Harris and Marshall Ferguson -Williams Kastner & Gibbs PLLC

Washington Law Against Discrimination 

This case is noteworthy, even though it is not published, because it discusses use of the Washington Law Against Discrimination in filing a claim against a school district. There appears to be no dispute that the WLAD applies to schools as places of accommodation.

The court used the McDonnell Douglas burden shifting framework (McDonnell Douglas is a U.S. Supreme Court case that addressing employment discrimination). The court found that the Sprys carried the initial burden to prove a prima facie case and that they must do more than express an opinion or make conclusory statements. Do this this they must establish, “specific and material facts to support each element of his or her prima facie case.”

The plaintiff must show:

(1) the plaintiff is a member of a protected class;

(2) the defendant’s establishment is a place of public accommodation;

(3) the defendant discriminated against plaintiff by not treating him in a manner comparable to the treatment it provides to persons outside that class; and

(4) the protected class status was a substantial factor causing the discrimination.

 

The parties, represented themselves, and did not provide examples of how the schools treatment, particularly filing CPS reports and discipline measures against the children, compared to other students.

It was not argued, but as soon as the school new there was a complaint regarding racial discrimination, they had an affirmative duty to investigate and provide a report to the parents under the state nondiscrimation in education law. However, this law was not discussed in the case.

Negligence and Negligent Inflection of Emotional Distress

The Sprys argued that the school was also negligent and its actions resulted in negligent inflection of emotional distress. This also demonstrates a problem with the Sprys representing themselves because they did not brief this issue on appeal and at the trial level they did not respond to the school’s motion for summary judgment that the negligence claim should be dismissed.

Conclusion

This case is likely unpublished because the family did not argue their position in the same way as it could have been argued if they had the resources to hire an attorney to argue the case for them. The litigation system is overwhelming and when people represent themselves, they are required to follow the legal and procedural rules in the same way as attorneys. While courts will often provide pro ses with a little leniency when pro se individuals are clearly attempting to do their best to follow the rules, they have the discretion to decide that a side is not properly pursuing its claim and to continue to allow it to proceed is a waste of judicial resources.

 

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.

10 Ways to Respond to Another School Shooting Tragedy

There was a shooting today, Friday, October 24, 2014 at a Marysville-Pilchuck High School (which is about 40 miles away from Downtown Seattle). The details will unfold over time.

At this moment, we know (which can always change as the investigation unfolds) that there are two people, including the student shooter, who were killed by the student shooter. The shooter was a freshman, he was apparently a popular kid and a homecoming prince. The other fatality was a female student. There have been some reports that they may have been cousins or that they were romantically involved. Based on what’s unfolding, it would not surprise me if it is a dating violence or family abuse of some kind.

It happened in the cafeteria at about 10:40 a.m. (about the time police got the call).

There were four additional people known to be injured, two girls and two boys. All of these children are in critical condition.

Barely a heartbeat ago, there was another school shooting, this one in early June 2014, at Seattle Pacific University. One college student was killed in that shooting and two other students were injured.

Over the next couple of days and months, we are going to learn about the student shooter. If this story follows the standard narrative, we will learn if he he was bullied, if he engaged in gender-based violence/dating violence, and/or if he had mental health issues.

We will search for reasons/excuses to understand, which in large part is about attempting to make sure we can feel safe, that feel like this won’t happen in our own community.

I hope we will take this moment to look at a bigger picture. To explore what we as a community need to do to make our world a better and safer place. Below is a list of things to do in the wake of this tragedy:

10. Vote: In Washington State our ballots have arrived or about to arrive. On this ballot are two initiatives about guns, I-591 –  (the bad one) vote no – prevents background checks stronger than federal law. I-594 – (the not enough, but every journey starts with a single step) vote yes – Universal Background Checks.

9. Get out the Vote Activities – To quote an image on Facebook, not voting is not an act of rebellion, it’s an act of submission. Make sure you vote, your friends vote, your co-workers vote, friends from synagogue, church, mosque, feminist critical thinking group, etc., vote. Vote for candidates that care about our schools- funding, bullying, and safety. Vote for candidates who believe that believe that the second amendment, like the first amendment can have time, place, and manner restrictions.

8. Push for better mental health resources – Many shootings or connected to mental health issues, dating violence, or bullying and harassment. There are not nearly enough resources readily and easily available for long-term care. These issues should be a funding priority and a priority for us to find innovative ways to deal with issues.

7. Push your school community to do better – It is not just the responsibility of the school to make sure our students are safe. As a community we must support our students and our schools. Make sure to be involved in your PTO, PTSA or any other parent-teach organization. We must be involved in awareness raising within these groups so that parents understand what behaviors are bullying or harassment and what to do when you learn your child is a victim, perpetrator, or bystander of any of these behaviors.

6. Challenge media – We live in a society where too many shortcuts are taken in media, news, online, etc. where sexist, racist, and other prejudicial just spills out onto t.v. Search for positive images of people of color, all women, religions, etc. Reject terms like “wife-beater” to describe a white-ribbed t-shirt. Reject slut-shaming. Seek out positive images and resources that provide a fuller depiction of our society.

5. Push your schools to do better – October is bullying prevention month. Make sure that you schools are doing activities to build empathy and interrupt bullying. Make sure you are aware of you schools policies. In Washington we have model policies for Bullying, Harassment, and Intimidation, if you cannot find your schools policy, look to the model policies, available on the Office of the Superintendent of Public Instruction’s website. Here’s a federal government resource: http://www.stopbullying.gov/

On top of bullying laws, we also have laws against discrimination on the State and Federal level. This means that schools are obligated to make sure that schools are safe and there is no harassment based on gender, race, sexual orientation, disability and more. Push to make sure your school has policies, including sexual harassment policies. These are often missing.

4. Push the government agencies involved in supervising our schools do better – On the federal level the Office for Civil Rights is in charge of oversight. In the last couple of years they have increased visibility of the issues. They need to continue the push and sustain in regardless of the elected officials.

On the state level, the Office of the Superintendent of Public Instruction (OSPI) is in charge of oversight and they are not doing a great job. The Govern’s office also has an education Ombuds office.

On the local level, the school board has the most power. They adopt/establish the policies and are key for setting the tone of the entire district. Go to school board meetings or at least review minutes and meetings. Submit comments. Make your voice heard.

3. Never stop believing – Never stop believing that the world can change and grow more positive. To quote Margaret Meade:

Never doubt that a small group of thoughtful, committed citizens can change the world; indeed it’s the only thing that ever has.

2. Be Brave – challenge yourself & those around you – Students learn from the caring adults in their lives. Watch your own comments – challenge your own internal racism, sexism, able-bodism, and push yourself to do better. Challenge any exaggerated comments you have about being angry enough to hurt or kill someone.

Do not be a bystander when you witness sexism, racism, able-bodism, etc. Model ways to resolve conflict for your children. Model the idea that we will not stand by when we can provide support.

1. Listen to the children in your life and advocate on their behalf when you hear about things that seem off. 

Remember amazing story a while back about a school administer who saw a child walk in with a gun. She talked and listened to the student and he gave up his gun.

Talking and listening, even at this moment where you would think all hope would be lost, matters. It can be the difference between life and dearth.

People, especially our youth, long to be heard and seen and understood. Take the time to listen and support them. Advocate for them. Get them help when they need it. You never know what kind of a difference just taking a little time to listen could have on someone’s life.

 

Information from the Office of the Superintendent of Public Instruction

Recently JELS ent a letter in response to the WACs that OSPI proposed. In the letter, we pointed out that the proposed WACs were not done in a procedurally fair manner (they only gave a limited number of interested parties notice, and the notice they provided allowed only about two weeks to respond during the summer, when a lot of interested parties would likely be unavailable to respond.

The second point we made was that the WACs were bad. OSPI failed to take into account the comments from the first round of drafting WACs. In the first round, they had solicited the feedback of a lot of interested parties. With their help, the first draft of the regulations actually had some kind of hope to achieve the legislative intent, to end discrimination, to close the achievement gap, to improve the school environment for everyone.

For some unknown reason, instead of adopting meaningful WACs, OSPI simply took the WACs that were created in response to the Sex Equity law and tacked on the additional protected classes.

One of the good things that existed in the original WACs was that OSPI seemed to provide some kind of oversight, even if it was more of an illusion than a reality. The proposed WACs basically remove a lot of the oversight. The revised WACs also remove the fact that schools have been required for a long time (30 to 40 years) to have certain policies.

Bottom line, the WACs represent a failure of OSPI to provide real assistance to schools about ways to eliminate discrimination and inequity in schools.

JELS didn’t send the letter because we think that letter will make much of a difference, if all of the organizations involved in 2010 and 2011 weren’t able to make an impact on the WACs, neither will the letter. If seeing how the clarity on the bullying policy and procedures has improved schools ability to address bullying, hasn’t helped, even though both laws were passed/revised at the same time, neither will this letter. JELS simply wants to pay attention and wants to make sure to apply some sort of pressure.

One positive of sending the letter is the automatic email response provided links that aren’t easy to find on their website.

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.