Department of Education and Sexual Assault/Harassment

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

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

Violating Codes of Conduct vs. Violations of Title IX

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

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

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

Understanding the Reason for the Recent Dear Colleague letter 

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

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

Relevant Comparison of the Dear Colleague Letters 

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

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

(emphasis added)
Footnotes referenced:

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

 

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

 

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

The new regulations state:

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

(Emphasis added).

Referenced footnote:

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

Impact of the Dear Colleague letter

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

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

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

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

 

Washington State Supreme Court Case Re: School Negligence

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

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

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

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

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

A side note about proximate cause

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

A couple of overly simplistic examples:

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

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

Back to the School Discrimination Case

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

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

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

Additional Case Details: 

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

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

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

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

Turning the Bainbridge Island Alleged Teacher Abuse into a Learning Moment

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

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

» Read more

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

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

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

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

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

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

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

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

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

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

Lower Standard Analysis 

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

Concurrence

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

Take Away Points

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

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

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

Missing Parts of the Opinion

Difference between Federal and State Laws

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

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

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

Multiple Identities 

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

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

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

 

Pending Education Discrimination Case

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

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

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

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

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

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

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

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

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

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

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

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. 

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.

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.