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.

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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. 

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.

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.