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.

Bullying on the Bus: Bellevue School Discrimination Case

On August 29, 2016, the Washington State Court of Appeals (Division I) issued a published decision involving claims against the Bellevue School District regarding the bullying and retaliation the school bus. The case itself involves some legal technicalities, specifically around jury instructions. Specifically the question was essentially whether the trial court erred in using the statutory definition in the harassment, bullying, and intimidation statutory statute in a jury instruction and whether that created an improper higher standard for the family to meet in their negligence suit.

Case

Allen & Jennifer Quynn, Appellants v. Bellevue School District, Respondent; Docket No. 73825-9; Opinion Author – Dwyer; joined by Becker and Trickey; Attorney for Appellants – Katherine George; Attorney for Respondents James Baker and Kenneth Masters. 

Basic Facts

Parents sued the Bellevue School District, claiming that the district had been negligent in failing to protect their daughter (while the child is referenced by her name in appeal, to increase her privacy, she will be referred to as “Daughter”) from harassment, intimidation, and bullying that she suffered while riding the school bus during her eighth grade year of middle school. A group of boys where allegedly targeting female students and Daughter reported an especially serious incident. She then became the focus of the boys’ aggression. There was name calling, groping, and having items thrown at her that resulted in welts.

She did not report the harassment, intimidation, and bullying that occurred against her after her report. The claim in the case is that the District knew or should have known that bullying was a likely result from the reporting and the school should have done more to ensure Daughter’s safety.

The Family challenged the decision with regard to a jury instruction regarding the duty of the school district and the definition of harassment, intimidation and bullying. They challenged based on (1) The district owed the child the highest duty of care, one applicable to common carriers, (2) inclusion of the definition of harassment, intimidation, and bullying unfairly limited the reach of their negligence claim, and (3) the instruction improperly articulated the duty and responsibility owed to Daughter by the district.

Appellate Court Opinion

The Court of Appeals agreed that school districts have a special relationship with students that gives rise to a duty of care to prevent a third party from causing physical injury to another.  This case cites McLeod v. Grant County School District No. 128, 42 Wn.2d 316, 255 P.2d 360 (1953), which held that because a child is compelled to attend school and has an involuntary relationship with the school district, the district has a duty “to anticipate dangers which may reasonably be anticipated, and to then take precautions to protect pupils in its custody from such dangers.”

In this case, the  Court of Appeals disagreed with the family that School Districts are required to provide the highest level of care on school buses. Instead the court held that the standard of care on a school bus, regarding the behavior of children, versus how a bus is driven, is the same as it would be anywhere else at school – reasonable care, “as it supervises the pupils within its custody, the district is required to exercise such care as a reasonably prudent person would exercise under the same or similar circumstances…The basic idea is that a school district has the power to control the conduct of its students while they are in school or engaged in school activities and with that power goes the responsibility of reasonable supervision.”

The Court of Appeals distinguished the heightened duty of a common carrier, which they linked to activities related to driving a bus from a lower level of duty, which they believed was more appropriate for behaviors of students on the bus. Basically the heightened duty of car is for driving functions, including making sure you use the stop sign so children can cross safely; reasonable care must be used with regard to the behavior of the children.

The next question involved a jury instruction that used the statutory language of the state harassment, intimidation and bullying law (“HIB Law”). In discussing the use of the statutory language in the instruction regarding negligence, the Court of Appeals noted that the HIB Law does not create a private right of action (meaning the HIB Law doesn’t allow parents to sue, so it’s not appropriate to use that definition when the suit doesn’t arise out of that law). The Court of Appeals found that by imposing the administrative definition of “harassment, intimidation, and bullying” the trial court improperly restricted the scope of the tort claim, which had the impact of requiring enhanced elements of proof in order to prevail.

Translation: the suit was regarding the school’s negligence. Instead of focusing on the question of whether the school was negligent, the jury was instructed to look at the HIB Law definition and determine whether the behavior of the bullying students reached a a level of physical harm, “substantially interfering with a student’s education” or “substantially disrupting the orderly operation of the school.”

The law around negligence not require physical harm. The court stated, “Indeed, to suggest that a bullied student cannot recover for emotional or psychological harm in the absence of actual physical injury runs completely counter to the analysis in McLeod.”

On top of the fact that physical harm is not required, proving that behavior had a “substantial” impact on a student or the school is a much higher burden than proving a school was negligent. The depth of the harm in a tort/negligence action is typically dealt with in determining the amount of damages (if any) and not whether the school was actually negligent.

The Court of Appeals said the error in this case required a new trial. As is all to often the case in cases involving schools, the litigation goes on longer than children are even in school. The incidents in this case occurred around December 2010. Now, in September 2016, the case is being sent down for another trial (that’s if the school district doesn’t appeal this ruling, if this ruling gets appealed and goes to the State Supreme Court and is heard and affirmed by the Washington State Supreme Court, resolution through a litigation process is likely still years off. The child was in the 8th grade when this incident occurred. Hopefully she’s in college now.

 

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.

Parent Guide as Bainbridge Island School District Deals with Teacher’s Inappropriate Conduct

On February 26, 2015, the Bainbridge Island School District sent out an email to the parents and community of Bainbridge Island School District to alert us of allegations of improper conduct of a Bainbridge Island High School teacher towards a student.

February 25, 2015
Dear Bainbridge High School Families,
Late afternoon Tuesday, Feb. 24, Bainbridge High School administrators learned of allegations of inappropriate conduct between a BHS teacher and student. Because the safety and well-being of our students is our top priority, we want to inform you of the steps we are taking at this time.
This morning, BHS administrators reported the allegations to law enforcement. While we are not authorized to provide specifics identifying either the student or the teacher, we can assure you that school and district administrators will fully cooperate with authorities on any investigation. We will also retain an independent investigator. The teacher is now on administrative leave pending the completion of the investigation.
The Bainbridge Island School District is taking the allegations very seriously. Because the incident involves members of our school community, any investigation may draw attention to our school. Situations of this nature can be upsetting to students and staff who hear about this at school, from friends or media. In the weeks ahead, our staff will pay additional attention to students for any signs of distress. Counselors will also be available to speak with students and listen to their feelings and their concerns.
We are committed to fully understanding the situation and working with authorities and the community until this matter is resolved. Thank you for your support and understanding.
Sincerely,
Mary Alice O’Neill
Principal

 

The email limits the information that it provides. From a legal standpoint limiting information provided is appropriate because the school district and the police must investigate the facts of the case. Limiting comment reduces the rumors and innuendo that are most assuredly going to follow. Rumor and innuendo are not inherently bad for a community as they are a method of community investigation, but they are not reliable for trying to figure out the facts surrounding an incident.

The vacuum of information leaves parents and community members searching for answers. This blog post is designed to provide a little understanding about what the process may look like.

First, the email is unclear as to what the conduct it, it simply says “inappropriate conduct.” That could be a wide variety of things, they could have been gambling, or the teacher could have slapped the student, but “inappropriate conduct” is usually code for sexual conduct. There is also a long history in education of teachers, especially coaches, behaving in sexually inappropriate ways towards students (see my November 14, 2014 blog post which links to the Seattle Times story). There is also a long history of media romanticizing student-teacher sexual relationships, one somewhat recent example was the Pretty Little Liars plot line of the student-teacher affair.

Second, it was referred to the police, which means the activity was criminal, lending support to the theory that it was sexual conduct.

The point of this blog post is to provide a information on the responsibilities of the school and the police, and to provide information for students and parents parents regarding their rights and ways to advocate for themselves when something like this happens to one of our children.

School District Responsibilities

When something happens in a school setting, whether in school, on a field trip, or by an employee of the school district, the school district is has a responsibility to take actions to protect students, and when, despite their efforts to protect students, something happens anyway, they have a responsibility to immediately get the student(s) safe, then to investigate, and then to make whatever structural changes necessary to reduce the possibility of a similar incident occurring in the future.

The school also need to make sure they monitor the atmosphere after-the-fact. It is common for the perpetrators of sexual assaults to be charismatic. It is likely that the teacher is well-liked. There is a possibility there could be back lash against the targeted student and a school has a duty to protect against this possibility.

While the school district has involved the police, they are not allowed to wait for the police to investigate before performing their own investigation. The email noted that the school district would be performing its own independent investigation.

Meanwhile, the school must take immediate action to increase the safety of the targeted student and all students. In this instance, the school has immediately put the teacher on administrative leave and that is and important first step, regardless of the outcome of the investigation. They have also noted that they are going to paying particular attention to the school climate and will have counselors available to talk to students.

If the incident that occurred is of a sexual nature then there are state and federal responsibilities that apply. The federal law is Title IX, which bans sex discrimination in schools, including sexual harassment and sexual assault. The state law is our state Sex Equality law. If it it isn’t a sexual incident but it is related to certain protected classes, there are also federal and state laws which create heightened responsibilities for the school, the state protections are broader and cover race, creed, color, national origin, honorably discharged veteran or military status, sexual orientation, 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.

When an issue occurs that involves what is often referred to as “protected classes” a school must go beyond the specific incident and look at its climate, its policies, its procedures and determine if there is anything they can do to decrease the possibility of something happening in the future. If the school realizes that there is a culture or climate that contributed to the incident occurring they must take remedial action and work to improve the climate beyond simply disciplining the perpetrator of this particular incident. Essentially, a school district must turn it into a learning moment.

One important change BI should make is around the lack of transparency for the BI school district policy on sexual harassment and discrimination. While you can find their harassment, intimidation and bullying policy here, I have never been able to find their policies and procedures that are connected to protections against discrimination based on the protected classes. While the additional protected classes are relatively new (law passed in 2010), the Sex Equity law and associated responsibilities to have sexual harassment policies have been around since 1975 on the state level and since 1972 on the federal level. The state administrative regulations that provide school districts with some guidance are available here. These administrative regulations were recently get revised (in December 2014), but those changes relate more to when the matter gets appealed to the Office of the Superintendent), but the initial WACs came out in 1976. When the additional protected classes were added in 2010, OSPI simply tacked those unique issues onto the Sex Equity WACs, which means that schools have had plenty of time to have policies and procedures.

In addition to the WACs, OSPI issued Guidelines in February 2012. The WACs and Policies make it clear that each school district is supposed to have policies on sexual harassment and that these policies are supposed to be conspicuously posted throughout each school building, and provided to each employee, volunteer, and student and that a copy of the policy must appear in any publication of the school or school district setting forth rules, regulations, procedures, and standards of conduct for the school or school district.

Police Responsibilities

The police will have to perform an investigation. Their responsibility is limited to the specific criminal acts that may have occurred. They must determine whether there is probable cause for an arrest and the Prosecutor’s office will make a determination as to whether there is enough evidence to prove beyond a reasonable doubt that conduct violated a law. If they make this determination, then they will charge the perpetrator and the case will either settle or go trial.

Again, based on the presumption that this involves sexual conduct, the statutes that govern are under RCW 9A.44. The way our criminal law works is that there are degrees of a crime and they are classified as different levels of felony or misdemeanor and they are a different level of felony, so first degree is a felony A, which then means there is a higher sentencing range. There are also misdemeanors which carry a lower penalty the felonies.

Rape of a child and child molestation in the first degree require that the child is under 12, second degree is when the child is between the ages of 12 and 14, and third degree is when the child is between 14 and 16.

Since the student is in high school, there’s a good chance he or she is over 16. In that case, the law that the teacher may have violated would be the sexual misconduct with a minor. It’s a crime in the first degree for a school employee to have sexual intercourse with an enrolled student of the school who is at least sixteen years old and not more than 21 years old, if the employee is at least 60 months (5 years) older than the student. This is a Class C felony. If it is sexual contact as opposed to intercourse it is a second degree offense and a gross misdemeanor.

There are a variety of other laws that could apply, but those are the ones that would most likely apply.

 

Responsibilities of the Parents and the Young Adult/Child

Whenever a person has been a target of sexual violence, it is important that he or she and, when the person is a minor, their parents, advocate on their behalf. The process can be confusing and scary. Police, prosecutors, and the school do not represent the targeted students, even though there is overlap in concern. Parents and students need to get informed about the process, both with the school district and with the police.

One place that parents and students can turn is the Sexual Violence Law Center. This is a great resource to learn about what additional protections might exist for the targeted student, from protection orders, to understanding the confidentiality of records, to understanding rape shield laws (designed to prevent blaming the targeted student because of clothing choices or prior sexual relationships), this website is a great resource and a great resource of resources, including their Know Your Rights Guide (available in English, Spanish and Chinese)

Also, it is incredibly important to communicate in writing. Even if you have a call or in person meeting, follow up that call or meeting with an email confirming what you understood the content of the call or meeting and the next steps. This is important for you, because it will make sure you are clear on the process, but it is also important because written documentation is more likely to produce results partially because it creates a heightened fear of future liability. Hopefully the school district will take all the proper steps, but if they don’t and you follow-up with OSPI or file a civil suit, written documentation will be able to be evidence. Telling someone what someone else said is not typically admissible evidence because it’s hearsay. In addition, Washington State law provides that a “personal representative of the victim’s choice” may accompany him or her to the hospital and to proceedings concerning the alleged assault, including police and prosecution interviews and court proceedings.

As a quick overview, the way the school hierarchy works is (1) responsible employee within the school, (2) school board, (3) OSPI. A report needs to be made to a responsible employee. Who the “responsible employees” are can be unclear, it is not necessarily just a teacher or even a counselor, but unquestionably, the compliance coordinator and Title IX officer are responsible employees. OSPI has a list on their website. For the Bainbridge Island School District, the compliance coordinator and Title IX Coordinators is Peter Bang-Knudsen, 206-780-1072, pbangknudsen@bisd303.org. OSPI’s website also provides a general overview about a complaint process here.

The general overview is that a parent/student can try to deal with the complaint through the school district. Since Bainbridge Island doesn’t have that information posted, it is hard to know what their procedure is, but they are supposed to have an internal appeal process. Once that decision is made, a student can appeal to OSPI. If it gets to OSPI, OSPI will perform its own investigation and issues its own findings. Please note there are some tight deadlines for appealing, 20 days within your final complaint to OSPI. 

An alternative administrative process is filing a complaint with the Office for Civil Rights U.S. Department of Education (OCR). OCR will pursue issues connected to race, color, national origin, sex, disability, and age. Their process for filing a complaint can be found here (and it is available in multiple languages).  Again, there are timelines, typically 180 days (about six months) from the discriminatory incident.

When the Department of Education gets involved they do an investigation and the investigation will typically result in a Resolution Agreement. An example of a resolution agreement can be found here (follow the link under the paragraph to see the resolution letter). The Resolution Agreement involves actions the school needs to take to resolve the structural deficiencies that created a culture and climate that allowed discrimination to occur.

When parents/students pursue resolution through the school, OSPI or the Department of Education, they are pursuing what are called administrative remedies. There is also a private right to sue encompassed in Title IX and the sex equity law, the lawsuits include a right to monetary damages if the school acted with deliberate indifference. A suit can also be filed for negligence on the school district’s part, which is an easier claim to establish than the “deliberate indifference” standard. Civil claims (a lawsuit) can also be made against the perpetrator.

*Note on language: You may have noticed that instead of “victim” or “survivor” I used “targeted student.” I use this language for a variety of reasons, including, but not limited to the reality that many people who have been the target of sexual violence do not like the word “victim” or even “survivor.” But perhaps more importantly, using the word “targeted student” more accurately conveys what happens. Many perpetrators are repeat offenders, they actively target/groom the person they want to attack, they do it consciously and one targeted student could easily be replaced by another. It also places the responsibility of the violence on the person committing the violence and not the person who is targeted by the violence. 

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.

 

Federal Guidance on Title VI vs. OSPI WACs

On October 1, 2014, the U.S. Department of Education Office for Civil Rights issued a Dear Colleague Letter. Dear Colleague letters are the Office of Civil Rights’ efforts to provide guidance for schools on what is needed to comply with federal laws. In this case, the letter focused on legal obligations under Title VI of the Civil Rights Act of 1965, which prohibits discrimination on the basis of race, color, or national origin.

The timing of this letter is interesting for in Washington, OSPI just went through a rule-making process on our state law that corresponds with the federal law. The proposed WACs are discussed in this blawg. So how do our state regulations compare to the federal guidance? As I noted in the prior blawg, the WACs are woefully inadequate to address remedying the discrimination that exists in our public schools. The Dear Colleague letter and guidance provide clear examples of the issues the WACs should have addressed (technology, teaching, etc.)

The Dear Colleague Letter starts by setting the stage, identifying history and present of unequal access to educational resources. It also discusses some of the factors that can be hard to measure that impact school success, including quality of building, experienced level of teachers, instructional materials and technology, and differences in teacher salaries. The WACs do not discuss this, although arguably that is what was discussed in the law and the WACs do not need to discuss this.

Then the Letter discusses intentional discrimination and identifies the following analysis for determining whether a school district intentionally discriminated in the allocation of its resources:

  1. Did the school district treat a student, or group of students differently with respect to providing access to educational resources as compared to another similarly situated student, or group of students, of a different race, color, or national origin (a prima facie case of discrimination)?
  2. Can the school district articulate a legitimate, nondiscriminatory, education reason for the different treatment? If not, OCR could find the district has intentionally discriminated on the basis of race. If yes, then:
  3. Is the allegedly nondiscriminatory reason a pretext for discrimination? If so, OCR would find the district has intentionally discriminated on the basis of race.

Then the letter discusses disparate impact. School districts also violate Title VI if they adopt facially neutral policies that are not intended to discriminate based on race, color, or national origin, bud do have an unjustified, adverse disparate impact on students based on race, color, or national origin. OCR applies the following analysis for disparate impact:

  1. Does the school distract have a facially neutral policy or practice that produces an adverse impact on students of a particular race, color, or national origin when compared to other students?
  2. Can the school district demonstrate that the policy or practice is necessary to meet an important educational goal? In conducting the second step of this inquiry OCR will consider both the importance of the educational goal and the tightness of the fit between the goal and the policy or practice employed to achieve it. If the policy or practice is not necessary to serve an important educational goal, OCR would find that the school district has engaged in discrimination. If the policy or practice is necessary to serve an important educational goal, then OCR would ask:
  3. Are there comparably effective alternative policies or practices that would meet the school district’s state educational goal with less of a discriminatory effect on the disproportionately affected racial group; or is, the identified justification a pretext for discrimination? If the answer to either question is yes, then OCR would find that the school disctrict had engaged in discrimination. If no, then OCR would likely not find sufficient evidence to determine that the school district had engaged in discrimination.

One of the major distinctions between this commentary and the proposed WACs is that several changes in the WACs make it sound like OSPI was trying to eliminate the disparate impact standard. That seems contrary to the intent of the state law to create a system that has fewer protections than the federal law.

Then the Letter goes on to discuss school funding. Again, the letter provides more guidance then the WACs.

A. Courses, Academic Programs, and Extracurricular Activities

The WACs have a limited discussion saying that no district shall provide any coursework based on a protected status. The Dear Colleague Letter requires that students have access to, and enroll in rigorous courses are more likely to go on to complete postsecondary education. It also notes that OCR will assess the types, quantity, and quality of programs available to students across a school district to determine whether students of all races have equal access to comparable programs both among schools and among students within the same school.

The Dear Colleague Letter discusses extracurricular activities, especially those that have been shown to support college and career readiness and high academic rigor, and states they must be offered on a nondiscriminatory basis. It notes that there will be a quantitative and qualitative review. The WAC only discusses recreational and athletic activities and states that no one be denied participation in based on a protected class. The focus in the WAC is based on athletics and demonstrates that it is the holdover from the state version of Title IX and providing equal athletic opportunities for girls.

The Dear Colleague Letter captures the intent of the legislation that was passed in Washington, it shows a demonstrated effort to outline for schools how to view their programs and make sure they are provided on a nondiscriminatory basis. It is not detailed and it won’t provide all the answers, but unlike the WACs, it makes an effort.

B. Strong Teaching, Leadership, and Support

The WACs don’t address the problem of the impact of teachers on education. The Dear Colleague Letter does and it notes that ensuring that schools have effective and stable teachers is a major component of ensuring that a school district does not discriminate based on race, color, or national origin. They will oook at turnover rates, teach qualifications, and experiences, school leadership, and support staff.

C. School Facilities 

Again because the WACs use as a starting point the Sex Discrimination WACs and did not actually try to examine the issue of what it means to address discrimination based on additional factors, the only reference to facilities is with regard to recreational and athletic activities. The Dear Colleague Letter addresses school facilities in terms of (1) physical environment – schools should be structurally sound and well-maintained; (2) Types and Design of Facilities – laboratories, auditoriums, and athletic facilities – must be provided on an equal basis.

D. Technology and Instructional Materials

When the WACs were originally written technology was a not an issue, the internet didn’t exist. So when they were simply modified by tacking on the additional protected classes to the existing sex discrimination regulations, there was no consideration of technology – so it’s no surprise the WACs are silent on the issue of technology. The Dear Colleague letter provides guidance that OCR will consider the number, type, and age of educational technology devices will be assessed in determining whether they are provided without regard to race, color, or national origin. They will also look at the size, content and age of a schools library collection considering quantity and quality of materials.

Prevention 

The WACs essentially limit proactive surveys and monitoring to athletics and recreational activity. The guidance of the Dear Colleague Letter notes that the assessment must be broader than recreational and athletic facilities – school districts need to compare how educational benefits and burdens are allotted.

Conclusion

The Dear Colleague letter makes it clear that OSPI is not providing sufficient guidance to assist schools in creating nondiscriminatory schools. A school that relied on the understanding that our state tries to go further in the protection of students than the federal government and relied on the WACs would fail to meet the federal standards.

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.

WLAD Appellate Case

In Washington, we have a law called the Washington Law Against Discrimination (WLAD). It’s a law designed to protect Washington State citizens from experiencing discrimination based on a sizable list of protected classes:

This chapter shall be known as the “law against discrimination.” It is an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights. The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of

  • race,
  • creed,
  • color,
  • national origin,
  • families with children,
  • sex,
  • marital status,
  • sexual orientation (Note, the definition of sexual orientation includes gender expression or identity.”
  • age,
  • honorably discharged veteran or military status, or
  • 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

are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state. … employment, in credit and insurance transactions, in places of public resort, accommodation, or amusement, and in real property transactions because of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or 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; and the commission established hereunder is hereby given general jurisdiction and power for such purposes.

RCW 49.60 (Parenthetical description noting the inclusion of trans* status and bullet point for the protected classes are added).

Recently, the Washington Supreme Court decided a case that dealt with WLAD. In Scrivener v. Clark Collegethe court address an issue of age discrimination and being hired for tenure track. Scrivener had made the final four, but instead of hiring her, the College hired candidates who were under 40 years old.

The trial court decided the issue on summary judgement (before a trial on a legal issue). The trial court said that Scrivener failed to prove that the college’s stated reason for its decision was a pretext.

At the first round of appeals,the appellate court upheld the trial court’s decision. The Supreme Court reversed the trial court’s decision (sent it back to the trial court to decide in line with the Supreme Court’s opinion).

The Washington State Supreme Court clarified the standard that courts need to use when examining whether a plaintiff’s case should be dismissed on summary judgment (a hearing where one or both sides makes a motion arguing that the case should be decided on legal issues before it gets to trial).

The court adopted the McDonnell Douglas framework (a federal framework for addressing Title VII employment discrimination claims). First and employee has to establish a prima facie case of discrimination (something happened to the employee and they fit the protected class of employees). Once this is established (it’s called a prima facie case), the burden of shifts to the employer – the employer has to provide a legitimate, nondiscriminatory reason for either not hiring, firing, or other negative employment action. If the employer can do this, then the Plaintiff has to produce enough evidence to prove that Defendant’s reason was a pretext (not the real reason).

The Washington State Supreme Court said that in WLAD cases, employees must satisfy the pretext prong of the McDonnell Douglas framework by offering sufficient evidence to create genuine issues of material fact, either (1) that the employer’s articulated reason for its action is pretextual or (2) that, although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer

This standard wasn’t applied at the trial level. The Washington State Supreme Court believed that Scrivener created a genuine issue of material fact concerning whether age was a substantial factor motivating Clark College’s decision to hire younger candidates. The Supreme Court sent the case back to the trial court to proceed to trial.

One of the interesting components of the decision was the discussion of whether employees must prove that discrimination was the “determining factor” or a “substantial factor.” The court said that having a determining factor standard would be “contrary to Washington’s ‘resolve to eradicate discrimination’ and would warp this resolve into ‘mere rhetoric.'”

The court said that summary judgment to an employer is seldom appropriate in the WLAD cases because of the difficulty of proving a discriminatory motivation.

OSPI Nondiscrimination Guidelines for Trans* Students

Last week, JELS published a blawg about OSPI that expressed disapproval of their actions, both in the process they sought to modify the nondiscrimination WACs and in the overall result in the WACs. This week, we give a little praise. In 2012 OSPI created, “Prohibiting Discrimination in Public Schools: Guidelines for school districts to implement Chapters 28A.640 and 28A.642 and Chapter 392-190 WAC.” While this guide is not perfect, there was one section in the guide which I feel was done particularly well: Gender Identity and Gender Expression. In fact, they are done so well that I’m providing them below.

GENDER IDENTITY AND GENDER EXPRESSION
59. What terms are commonly used to describe gender identity or gender expression?
Individuals use a number of words to describe their gendered experiences. Some people may refer to themselves as trans, transsexual, transgender, male-to-female (MTF), female-to-male (FTM), two-spirit, and a variety of other terms. Terminology can differ based on region, language, race, ethnicity, age, culture, and many other factors. Some common terms are defined below.
 Gender identity is a person’s deeply felt internal sense of being male or female, regardless of their sex assigned at birth.
 Gender expression is the manner in which a person represents or expresses gender to others, often through behavior, clothing, hairstyles, activities, voice, or mannerisms.
 Transgender is a general term used to describe a person whose gender identity or expression is different from that traditionally associated with the person’s sex assigned at birth.
 Transitioning is the process in which a person changes their gender expression to better reflect their gender identity.
 Gender nonconforming is a term for people whose gender expression differs from stereotypical expectations about how they should look or act based on the sex they were assigned at birth. This includes people who identify outside traditional gender categories or identify as both genders.

60. Should transgender and gender nonconforming students have the right to express their gender identity in school?
Yes. Washington state law prohibits discrimination in public schools based on gender expression and identity (RCW 28A.642.010). Students must be permitted to dress according to the gender in which they consistently identify and should be addressed and treated using the name and pronouns of their choice (i.e., “he” and “him” or “she” and “her”). School districts are encouraged to adopt gender-neutral dress codes that do not restrict a student’s clothing choices on the basis of gender. Dress codes should be based on educationally relevant considerations, apply consistently to all students, include consistent discipline for violations, and make reasonable accommodations when the situation requires an exception.
61. How should school districts address a student’s name and sex on official records?
School districts maintain permanent student records that include a student’s legal name and legal gender. To the extent that the school district is not legally required to use a student’s legal name and gender on school records or documents, the district should use the name and gender by which the student identifies. School IDs, for example, are not legal documents and should use the student’s preferred name. The school district should change a student’s official record to reflect a change in the student’s legal name or gender upon receipt of documentation that such change has been made pursuant to a court order or through amendment of state- or federally-issued identification. In situations where school staff or administrators are required by law to use or report a student’s legal name or gender, such as for standardized testing, school staff should adopt practices to avoid the inadvertent disclosure of such confidential information.
62. Should schools inform staff, students, or parents about a student’s transgender status?
Information about a student’s transgender status, legal name, or gender assigned at birth may constitute confidential medical or education information. Disclosing this information to other students, their parents, or other third parties may violate privacy laws, such as the federal Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 C.F.R. Part 99). School staff should not disclose information that may reveal a student’s transgender status to others, including parents and other school staff, unless legally required to do so or unless the student has authorized such disclosure.

63. Should a school district require proof of medical treatments as a prerequisite for respecting
a student’s gender identity or expression?
No. School districts should not require proof of medical treatments in order to respect a student’s gender identity or expression. If a school district has an objective basis that would justify questioning whether a student’s asserted gender identity is genuine, it may ask for information to show that the student’s gender identity or expression is sincerely held. No particular type of information (such as medical history information) should be specifically required.
64. Should school districts allow transgender students to use the restroom of their choice?
Yes. School districts should allow students to use the restroom that is consistent with their gender identity consistently asserted at school. Any student – transgender or not – who has a need or desire for increased privacy, regardless of the underlying reason, should be provided access to an alternative restroom (e.g., staff restroom, health office restroom). This allows students who may feel uncomfortable sharing the facility with the transgender student(s) the option to make use of a separate restroom and have their concerns addressed without stigmatizing any individual student. No student, however, should be required to use an alternative restroom because they are transgender or gender nonconforming.
If school administrators have legitimate concerns about the safety or privacy of students as related to a transgender student’s use of the restroom, school administrators should bring these concerns to the school district compliance coordinator. Such privacy or safety issues should be immediate and reasonably foreseeable, not speculative. School administrators and/or compliance coordinator should meet with the student and/or parents to determine if there is a need for an alternative facility. Determination to provide an alternative facility for any student should be on a case-by-case basis.

63. Should a school district require proof of medical treatments as a prerequisite for respecting
a student’s gender identity or expression?
No. School districts should not require proof of medical treatments in order to respect a student’s gender identity or expression. If a school district has an objective basis that would justify questioning whether a student’s asserted gender identity is genuine, it may ask for information to show that the student’s gender identity or expression is sincerely held. No particular type of information (such as medical history information) should be specifically required.
64. Should school districts allow transgender students to use the restroom of their choice?
Yes. School districts should allow students to use the restroom that is consistent with their gender identity consistently asserted at school. Any student – transgender or not – who has a need or desire for increased privacy, regardless of the underlying reason, should be provided access to an alternative restroom (e.g., staff restroom, health office restroom). This allows students who may feel uncomfortable sharing the facility with the transgender student(s) the option to make use of a separate restroom and have their concerns addressed without stigmatizing any individual student. No student, however, should be required to use an alternative restroom because they are transgender or gender nonconforming.
If school administrators have legitimate concerns about the safety or privacy of students as related to a transgender student’s use of the restroom, school administrators should bring these concerns to the school district compliance coordinator. Such privacy or safety issues should be immediate and reasonably foreseeable, not speculative. School administrators and/or compliance coordinator should meet with the student and/or parents to determine if there is a need for an alternative facility. Determination to provide an alternative facility for any student should be on a case-by-case basis.

65. How should school districts address physical education and athletic participation by transgender students?
School districts should allow students the opportunity to participate in physical education and athletic activities in a manner that is consistent with their gender identity. For interscholastic athletics, should any questions arise as to whether a student’s request to participate in sex-segregated activity consist with his or her gender identity is bona fide, a student may seek review of his or her eligibility for participation by working through the Gender Identity procedures set forth by the Washington Interscholastic Athletic Association (WIAA) available at http://www.wiaa.com/subcontent.aspx?SecID=350.

66. Should school districts allow a transgender student to use the locker room of their choice? 
The use of locker rooms by transgender students should be assessed on a case-by-case basis, with the goals of maximizing the student’s social integration and equal opportunity to participate in physical education classes and sports, ensuring the student’s safety and comfort, and minimizing the stigmatization of the student. In most cases, transgender students should have access to the locker room that corresponds to their gender identity consistently asserted at school. Any student who has a need or desire for increased privacy, regardless of the underlying reason, should be provided with a reasonable alternative changing area, such as the use of a private area (e.g., a nearby restroom stall with a door), or a separate changing schedule. Any alternative arrangement should be provided in a way that protects the student’s ability to keep his or her transgender status private. No student, however, should be required to use a locker room that conflicts with his or her gender identity.

 

 

Surprise Rule Change from OSPI

Our laws are the often the skeleton of the issues we hope to address as a society. The meat, tissues, blood, etc. are often regulations and case law. In Washington State, we have the Washington Administrative Code (WAC). As defined on the state website, “[r]egulations of executive branch agencies are issued by authority of statutes. Like legislation and the Constitution, regulations are a source of primary law in Washington State. The WAC codifies the regulations and arranges them by subject or agency.”

The Office of the Superintendent of Public Instruction is responsible for the WACs that impact schools. In 2010, there were important changes to the non-discrimination in education law and the creation of the harassment, intimidation, and bullying (HIB) law. Initially, OSPI sought wide-community inclusion in the rule-making. Despite this, the rules they issued in December 2010, did not actually incorporate the impact the community provided on how to create nondiscriminatory schools. Instead, the OSPI took the regulations that existed based on Washington’s version (RCW 28A.60) of Title IX (the federal ban on sex discrimination in education) and tweaked it to cover all of the additional classes. These WACs ignored the intent of the legislature, which sought to address systemic discrimination and the consequences of systemic discrimination which resulted in an achievement gap.

Recently, the OSPI made an under-the-radar change to the legislation. I say under-the-radar for a variety of reasons. First, they didn’t reach out to people who had provided input in 2010. Second, they did not provide information through simple mediums like Twitter (where they have an account @waOSPI). They were posting in the timeframe of the Notice, but topics included “5 ways to use social media to connect parents in the classroom,” “Yes! Librarian transforms school bus to deliver books to kids in need,” and “Schools out but kids still need nutrition!” The same is true for their Facebook account (/waOSPI).

Based on a review of the WACs, I think the changes they made are so substantial, and with the exception of requiring that information be provided in languages that are understood by parents or involved parties, weaker than the previous version. One of the biggest changes is radically decreasing OSPI responsibilities. Had they not done this under the radar, I have little doubt that there would have been vocal objections to the changes, particularly the changes in the complaint process.

Between the date of the Notice, July 17, 2014 @ 11:51 AM to the Hearing on August 28, 2014 at 9:00 AM, there was not a single social media announcement about the proposed change.

So what exactly did OSPI set out to do and what did they do? 

Based on the language in the OSPI Notice, they set out to improve the ability to effectively address discrimination and clarify requirements and scope of OSPI and the rules. Here is the language from their Notice:

Purpose of the proposal and its anticipated effects, including any changes in existing rules:
The proposed rules are intended to (1) revise the complaint procedure in WAC 392-190-065 through 392-190-075 to more effectively address allegations of discrimination within Washington public schools; (2) clarify the requirements and scope of OSPI monitoring under chapters 28A.640 and 28A.642 RCW; and (3) increase readability of the rules. OSPI anticipates that the revised rules will result in a less adversarial and more cooperative process to resolve discrimination complaints and will ease the financial and emotional burden on families and school districts when confronting these issues.

Reasons supporting proposal:
The proposed revisions to chapter 392-190 WAC are necessary to provide a more efficient and equitable resolution of discrimination complaints for both school districts and families, and are responsive to concerns and recommendations by stakeholders. The revisions are intended to encourage school districts to resolve concerns about discrimination at the lowest level possible and reduce the likelihood that these matters will be taken to court. Additional changes are needed to increase readability and clarify requirements.

Based on the amended WACs, their goal does not match their notice. From an initial read, it appears as if their main purpose was to make sure that Charter Schools were clearly covered. The rest of the WACs are a mixed bag. Some things are good (like making sure anti-discrimination materials are provided in language parents/guardians understand) others seem like they are attempting to limit liability of schools by intentionally interrupting the reporting up to the higher levels. Below is a essentially a paragraph by paragraph review of the amended WACs.

Note:

  • In the discussion below I typically use “schools” as a shorthand for saying “school district or public charter school.”
  • I use the term “protected class” to stand for “sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression or identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal.”

Purpose -Elimination of unlawful discrimination in public schools – WAC 392-190-005

  • The WACs removed the language that the intent of the chapter is to encompass similar substantive areas addressed by federal civil rights authorities and in some aspects extend beyond those authorities.
  • Tacked on at the end of the section is a paragraph that states that unless otherwise stated, OSPI adopts the definitions, requirements, and procedural safeguards set forth under Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, Title IX of the Education Amendments of 1972, and Title VI of the Civil Rights Act of 1964.
  • It adds a paragraph saying that OSPI will develop guidelines to supplement the chapter and guide its interpretation and administrative enforcement of the chapters.

Compliance with Federal Law – WAC 392-190-007

This is a new section that says, unless otherwise provided, OSPI adopts the definitions, requirements, and procedural safeguards set forth under Section 504, Title II, Title IX, and Title VI of the Civil Rights Act. One of the things that is unfortunate about this is that state laws and regulations often go further than federal laws (and in many ways our state laws do, so they are “otherwise provided” in the WACs) but there are places where this may seem to curtail state protections. For example, one of the court cases that provided for more equity in athletics in Washington was based on our Equal Rights Act, not Title IX or the state ban on sex discrimination.

Counseling and Guidance Services 

Counseling and Guidance Services – Course and Program Enrollment – WAC 392-190-010

  • The language here is altered in a way that may have intended to make less legalese, but it shifts it in such a way makes it seem weaker. Instead of saying “No school district shall engage in discrimination” it says they “must not discriminate.” The possible difference is centered around the idea of intention. Schools that cannot engage in discrimination may not do so, even if they did it unintentionally. A school that must not discrimination could argue that they did not engage in behavior intentionally and therefore even though there was a discriminatory result, because there was not a discriminatory purpose they are somehow off the hook for their behavior. This is not necessarily what would happen, but it is worth noting, as in the context of employment discrimination intent is a major factor. Education is supposed to be different than employment (it’s mandatory, the power differential between student and teacher/building/district, etc is so great). Thus, the language that seems like it is shifting focus away from impact to intent raises red flags.
  • There is a similar type of concern in paragraph five, where the is a change from “results” to “has resulted” in a substantially disproportionate number of students. Again, this change is subtle, but it change the idea that the result itself can be looked at to having to focus on whether something created the result.
  • A annual review process has been added. At last annually schools must review student enrollment data within courses and programs disaggregated by sex, race, limited-English proficiency, and disability and determine whether a “substantially disproportionate number of students within these categories are enrolled in a particular course or program.
  • If schools find out that there are there is a substantially disproportionate number of students in a course or program (instead of class), the school may now take “prompt” instead of “immediate” action “to ensure” (as opposed to “as is necessary to assure”) the disproportion is not the result of discrimination.
  • There is an expansion of the areas to look for discrimination, this includes adding identification and selection of students, and course and program enrollment criteria, as well as adding a catch all provision – “other factors related to course and program enrollment.

Training

Training – Staff responsibilities – Bias awareness – WAC 392-190-020

  • The training-Staff responsibilities has changed. It is no longer “in service”. Schools are no longer required to provide bias awareness and elimination training in in service training programs. Instead, schools must offer or provide training to administrators and certificated and classroom personnel regarding their responsibilities under the chapter and raise awareness of and eliminate bias based on the protected categories.

Recreational and Athletic Activities

Recreational and Athletic Activities – WAC 392-190-025

  • There is a strange change of language, instead of maintaining the language “No personal shall… be excluded from participation in, be denied the benefits of, or otherwise be discriminated against…” the language has been changed to “school districts and public charter schools must not…. exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against any person….” This is consistent with the changes that seem to be focusing on what the school district actively does instead of focusing on the actual impact, regardless of whether it is the result of intentional or unintentional actions.
  • The WACs now exempt inclusion of “boxing, wrestling, rugby, ice hockey, football, basketball, and other sports in which the purpose or major activity involves bodily contact.” This means, the WACs are changing the culture of creating spaces for girls in athletics and saying that a girl is no longer required to be allowed the girl to join the boys’ wrestling team when there are not sufficient athletic opportunities. It is unclear whether this is consistent with federal law or our state’s equal rights amendment.
  • Again there’s another change in language that appears to weaken the language, “No school district shall” and then clarifying the limited exceptions, to leading with “Except as provided under this section, school districts and public charter schools must not… “
  • The sports regs, which were primarily about sex/gender now add language addressing students with disabilities, saying that if these students cannot participate in existing activities even with reasonable modifications and necessary accommodations even with reasonable modifications a school may offer different opportunities (note the permissive language “may” provide as opposed to “must” provide).

Recreational and athletic activities – Student athletic interest survey – WAC 392-190-040

The change here seems odd, it requires OSPI’s approval to modify or amend the survey instrument, but there doesn’t seem to be anything about what survey instrument that is being modified or amended. It doesn’t say that OSPI has a model survey that schools can amend.

Recreational and athletic activities – Facilities – WAC 392-190-045

While the name of this section was changed to remove “sex discrimination” the overall change seem positive. If facilities are shared, it adds that they must be scheduled equitably.  Absent from this is any discussion about of increasing the accessibility for students with physical disabilities.

Access to Course Offerings 

There are two new sections:

  • Access to course offerings – WAC 392-190-046 – schools must ensure that no student is denied or limited in their ability to participate in or benefit from course offerings based on their protected class.
  • Access to course offerings – student discipline – WAC 392-190-048 – at least annually, schools must review disciplinary data, including but not limited to short-term suspensions, long-term suspensions, and expulsions. The school is required to to determine whether it has disciplined a substantially disproportionate number of students within any of protected classes. If so, they are supposed to make sure that the disproportion is not the result of discrimination.

Access to course offerings – Separate programs or activities – WAC 392-190-050

  • Instead of limiting the age range when p.e. classes can be segregated to grades 7 through 12, they can apparently be separated from preschool on. The standard is also lowered from “clearly be shown” … “to truly constitute the best method  \of providing both sexes, as a whole, with an equal opportunity…” to a lower standard of simply it can “be shown” that maintaining a separate physical education class or activity for boys and girls is the best method…” and now students can be separated if a class or portion of a class deals primarily with human sexuality instead of exclusively with human sexuality.
  • Textbooks and Instructional Materials:
    • Instead of covering any form of instruction provided by a school, it has now been limited to “textbooks or instructional materials, including reference materials and audio-visual materials.” (As a parent with kids in school, I wonder if this is intended to limit school liability in the event that schools use internet based materials.)
    • A screening criteria is created in the WACs.
    • There’s language about books that still contain bias – what is particularly troubling here, is that the initial WACs were adopted in 2010.  Instead of saying that schools should have phased out these books it maintains language. Not only does it maintain the language, but by adding charter schools in the way that it was referenced, it does not acknowledge that charter schools did not exists when the WACs were initial in place and therefor no charter school should have biased materials. But the way this is written, charter schools could potentially get away with having biased instructional materials, arguing that the materials “cannot be replaced immediately.”
  • There is a new section on Discriminatory harassment (392-190-0555).
    • This section specifically states that for “purposes of administrative enforcement of this chapter, a school district or public charter school violates a student’s rights regarding discriminatory harassment, including sexual harassment when…”
      • conduct is based on a protected class
      • the conduct is “sufficiently severe, persistent, or pervasive that it limits or denies a student’s ability to participate in or benefit from the school district’s or public charter school’s course offerings, including any educational program or activity (i.e., creates a hostile environment);  and
      • The school had notice and failed to take “prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.”
    • notice of discriminatory harassment exists when a reasonable employee knew, or in the exercise of reasonable care should have known, about the harassment.
  • Sexual Harassment – Definitions has been changed to remove a section that school districts must be guided by federal and state case law in their interpretation of sexual harassment complaints, etc.
  • Sexual Harassment Policy –
    • for some reason the fact that these policies were supposed to be adopted by June 30, 1995 was deleted. This is problematic because the “must be adopted and implemented” language is maintained, instead of converting to the past tense, “must have,” which makes it seem like it is no longer a violation if the schools do not have a policy.
    • Definitions no longer are required to be consistent with the statute, but instead with the WAC, they don’t have to have district and staff responsibilities or informal grievance procedures.
    • Notification – OSPI is no longer responsible for reviewing school policies.
    • Schools no longer have to make reasonable efforts to inform students and their parents about the district’s policy and procedure. Instead of being required to provide a copy of the policy and procedure, now all districts have to do is provide information in publications.
  • Harassment, intimidation, and bullying (HIB) prevention policy and procedure.
    • For some unknown reason, the requirement to adopt a policy by August 1, 2011, is eliminated. Similar to the sexual harassment policy date deletion, it is still in future tense, and now with no deadline for compliance.
    • OSPI is again no longer responsible for reviewing the policies. Instead, if a written HIB report indicate a potential violation a violation under “RCW 28A.300.285 “(so much for clarity – looking this up it is the bullying statute) and the staff member who receives the report must notify the district employee designated under WAC 392-190-060 (the unlawful discrimination WACs). If in a bullying complaint there is a belief that it is unlawful discrimination, it also must be referred to the designated employee.

Compliance and Complaint Procedures (WAC 392-190-060 through 392-190-0751)

There are a lot of changes to these sections. I find most of the changes to be concerning. Some continue to perplex me. I have never understood, and will never understand, how organizations like OSPI and schools can obstinately refuse to do what it takes to create schools where all students learn. These revisions seem to work to take OSPI off the hook for any potential liability and/or minimize the role OSPI plays, while also weakening the complaint procedures in gender. Again below is more detailed section by section description.

Designation of responsible employee – Notification – WAC 392-190-060

  • The amendment removes “immediately” with regard to the superintendent designating at least on responsible person. It is unclear why they would remove the requirement to “immediately” and did not at least replace it with a timeline as to when someone has to be appointed.
  • The amendment also strikes out “appeal” when saying that school have to notify students, parents, guardians, and employees of the complaint and appeal process. It is unclear if this is intended to mean that schools do not have to describe the appeal process or if the appeal process is considered part of the complaint process and therefor it must be disclosed.
  • The responsible employee is also apparently no longer responsible directly to the superintendent.  – This raises a question of whether there is a deliberate attempt to buffer the superintendent from the “should have known” category. It also raises questions about who the responsible employee is accountable to.
  • There’s also an internal inconsistency, in 392-190-060 it says that this person is supposed to investigate any complaint. Then under 065, it implies that a an employee who receives a complaint must make their own determination and then if they decide it meets the criteria, then they are supposed to pass it along to responsible employee to investigate. This kind of internal inconsistency not only confuses things, but it creates additional barriers to investigation of reports and instead of being facilitators of reporting issues, school employees becomes gatekeepers that could prevent a complaint from moving forward.
  • A positive change is that the language was changed regarding notification, the best change is that it requires the notice to be provided to parents and guardians in a language they understand.
  • A nondiscrimination blurb is now required in written announcements, notices, recruitment materials, employment applications, forms, and other publications. This blurb is supposed to say the school doesn’t discriminate based on the protected classes and provide the name, title, office address, and telephone number of the designated employee(s) of the nondiscrimination statute and under Section 504 and Title IX. This notice also has to say that they provide equal access to the Boy Scouts under the Boy Scouts of America Equal Access Act.
  • There is also now explicit language that schools are also prohibited from adopting any policy, procedure or practice that would limit a person’s right to file a complaint or have the effect of discouraging any person from utilizing the complaint procedure. Schools must not intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any rights under the nondiscrimination regulations (WACs) or because the individual has made a complaint.

Compliance – Complaint Procedure – WAC 392-190-065

  • One of the big changes here is that it seems to go from saying this is the procedure to saying that schools must establish a procedure that meets the outlined minimum requirements. Reports still have to be written and describe specific acts, conditions, or circumstances. The written requirement is similar to what it was previously. But it is a barrier. It’s not like a student can schedule a meeting with a counselor or a teacher and complain about something and believe that this is a complaint and it will be sent up the chain. No, a written report has to be filed.
  • Then there are several new sections – including that schools can establish a complaint deadline, although fortunately the deadline cannot be less than a year after the occurrence. There are also protections surrounding the deadline if the school misrepresents that the resolved the problems; withholds information that was required to be provided in section 005 (which really doesn’t make sense because this is purpose section, not the notification section).
  • Complaints can be delivered to any school administrator or any designated responsible employee. An annoying thing here is that if a school administrator gets a report, they are not required to turn this report over to the designated employee, instead they determine whether it meets the criteria and then they must promptly notify the designated responsible employee.
  • Upon receipt of this written report they designated responsible employee is required to give a copy of the school’s discrimination complaint procedure (note it doesn’t require this any time someone complains, this is after someone understands the policies enough to actually know that the written report must be filed).
  • The language that the investigation should be done as “expeditiously as possible” is removed, leaving only that it has to be done within 30 calendar days (as a side note for bullying, harassment and intimidation the report has to be done within 5 days). There is also language added to allow for an extension of time based on the vague “exceptional circumstances related to the complaint require an extension” standard. It does require a response to go to OSPI.
  • The response guidelines are modified to now require a summary of the results of the investigation, whether the school district has failed to comply, notice of the right to appeal. One notable difference is that this changed the standard from “whether the school district denies the allegations” to “whether the school district or public charter school has failed to comply with this chapter.”
  • Now instead of needing to “eliminate any such act, condition, or circumstances within the school district ” a school district must simply “correct the noncompliance.”
  • They eliminated the starting point of the timeline being when the response is mailed to simply being the response date – seemingly irregardless of when the school provides this to the person who complained.
  • A requirement is added that the response must be in a language the complainant can understand. While this is good, it should be more expansive and state that it should be in the language the complainant understands, or if the complainant is a student, a language their parent understands (although that can be problematic for LGBTQ kids and possible dangers at home related to their identity).
  • It is also disturbing that they have added a line that if the complainant and the school resolve the complaint, “no further action is necessary under this section.” This means if an issue comes up about say pervasive sexual harassment and one student complains. The school is aware that it is a wide-spread problem, but some sort of agreement is made with regard to a particular victim. Based on this additional sentence, the WACs seem to be advising schools that they do not need to do any additional work to improve the school environment.
  • After all these requirements for written complaints, they do say that schools can come up with a method for an informal complaint procedure (including verbal), but that if these informal processes exist, schools must notify complainants about their right to file a formal complaint.
  • One new feature is that schools are required to provide a copy of the response to the office of superintendent of public instruction.

Compliance – Appeal procedure – School District or Public Charter School – WAC 392-190-070

This whole section was re-written. Originally it provided clear guidance on when and how an appeal could be made to the school board. An appeal required the board to schedule a hearing to commence within 20 days and required a complainant and the school to be allowed to present witnesses and testimony. A decision had to be made within 10 days. The revision eliminated all of that. Now it is vague and unclear – the complaint procedure of the school must provide an option to appeal to a “party or board that was not involved in the initial complaint or investigation.” A time limit may be established to file appeals, but it cannot be less than 10 days; and the school must provide a written appeal decision to the complainant within 30 days.

Compliance – Complaint procedure – OSPI – WAC 392-190-075 – 

This provision is also re-written and clearly limits the responsibilities or action that OSPI must take. In the prior version, if a complaint was appealed to OSP, OSPI must conduct a formal administrative hearing in conformance with the Administrative Procedures Act. There was also a clear timeline (20 days) in which the appeal had to be made. There was a requirement of de novo review. Now, when OSPI receives the appeal (which has greater requirements, some that may be impossible for a student/parent/guardian to meet, like providing the address of other the other student(s) involved), OSPI may initiate an investigation. There are no guidelines as to when they may or may not perform an investigation. If OSPI investigates and finds a problem they will include corrective actions deemed necessarily to correct any non compliance.

Mediation – WAC 392-190-0751

This is an entirely new section, which is basically that a school and the complainant can use the services of a trained mediator. This isn’t necessarily a bad thing, but it is worth noting, mediation is required in family law cases, except if their is domestic violence. The same logic would apply for a lot of discriminatory settings – that the power differential and the dynamics involved in the violence are simply to great to allow for meaningful mediation.

Monitoring Procedures- Results – WAC 392-190-077 – changes here are minimal.

Monitoring Appeal Procedure – WAC 392-190-079 – changes are minimal.

Violations – Permissible sanctions – WAC 392-190-080 – changes are minimal.

Concurrent claims and remedies – WAC 392-190-081 – changes are minimal.

Provisions that were completely deleted:

The WACs didn’t provide anything other than the name and the WAC number. I have included a description of the provision they eliminated.

Counseling and guidance – sex discrimination – Duty of certificated and classroom personnel – Coordination of effort – WAC 392-190-015

This part of the statute has been in existence since at least 1989. It barred all certificated and classroom personnel from limiting opportunities based on sex. It also required encouragement of students to pursue nontraditional occupations for men and women.

Recreational and athletic – Sex discrimination – Equal opportunities – Separate teams – WAC 392-190-026

This provision required sports teams and programs be equally open to participation by qualified members of both sexes. For grades 7 through 12, a school district could maintain separate teams for each sex if: it truly constituted the best method to provide equal opportunity to participate in the sports or games of their choice, and at the same time time, a test of substantial equality(which it defined) between the two programs was met.

Recreational and athletic activities – Elementary and secondary level – WAC 392-190-035

This was the provision that when interscholastic, club, or intramural athletics are provided at the K-6 level, that schools will provide equal opportunity and encouragement for physical and skill development. At the 7-12 level interscholastic and intramural opportunities must also be provided equal opportunity and encouragement.

Monitoring results – Complaints issued by superintendent of public instruction – WAC 392-190-078

This clarified that OSPI could initiate a complaint and outlined the procedure for an OSPI complaint against a school district.

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.