Bullying And Harassment: What School Districts Need To .

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Bullying and Harassment:What School Districts Need to Know to Protect TheirStudents and ThemselvesOctober and November – Area Cooperative Educational Serviceswww.hoganlovells.comMaree Sneed, PartnerHogan Lovells202-637-6416maree.sneed@hoganlovells.com1

TrueorFalsewww.hoganlovells.com2

True or FalseA school can be liable for harassmenteven if its administrators did not actuallyknow it occurred.www.hoganlovells.com3

True or FalseDistricts are not legally obligated toaddress anti-transgender harassmentunder federal law in light of the recentrepeal of the transgender-focused DearColleague Letter.www.hoganlovells.com4

True or FalseSchools are required to investigate offcampus, peer-on-peer sexual violenceeven after a police report has been filed.www.hoganlovells.com5

True or FalseDistricts are only legally responsible forthe actions or inactions of their employeesin response to bullying or harassment, notfor the harassment itself.www.hoganlovells.com6

True or FalseAlthough religion and sexual orientationare not explicitly named as federallyprotected characteristics, districts aresometimes legally obligated to addressbullying on those topics.www.hoganlovells.com7

I. BackgroundII. State of the Law1. Overview of Bullying & Harassment Legal Frameworka) Legal Elements of School Bullying & Harassment Claimsb) Life Cycle of a School Bullying or Harassment Claim2. Bullying & Harassment Based On Federally ProtectedCharacteristicsa) Race, Color, National Originb) Sexc) Disability3. Cyberbullying4. State Anti-Bullying LawsIII. Protecting Your Students and Yourselveswww.hoganlovells.com8

I. BackgroundII. State of the Law1. Overview of Bullying & Harassment Legal Frameworka) Legal Elements of School Bullying & Harassment Claimsb) Life Cycle of a School Bullying or Harassment Claim2. Bullying & Harassment Based On Federally ProtectedCharacteristicsa) Race, Color, National Originb) Sexc) Disability3. Cyberbullying4. State Anti-Bullying LawsIII. Protecting Your Students and Yourselveswww.hoganlovells.com9

BackgroundWhat are bullying and harassment?www.hoganlovells.com10

What are bullying and harassment? Bullying is unwanted, aggressive behavior amongschool-age children that involves a real orperceived power imbalance. The behavior isrepeated, or has the potential to be repeated, overtime.– Bullying can be verbal, social, or physical– Examples: Verbal: teasing, name-callingSocial: exclusion, public embarrassmentPhysical: hitting, damaging personal belongingsSource: stopbullying.govwww.hoganlovells.com11

What are bullying and harassment? Harassment may be verbal, written, or otherconduct that is threatening or harmful– Does not have to include intent to harm, be directed at aspecific target, or involve repeated incidents– Only a small part of the larger universe of bullying orcyberbullying activitySource: OCR DCL: Harassment and Bullyingwww.hoganlovells.com12

BackgroundWhy are bullying and harassmentsuch “hot” topics?www.hoganlovells.com13

Why are bullying and harassment such “hot” topics?StatisticsAccording to the National Center for Education Statistics, studentreported bullying has slightly decreased since 10 years ago butplateaued since 2013. About 1 in 5 students report being bullied atschool.Source: NCES Blogwww.hoganlovells.com14

Why are bullying and harassment such “hot” topics?StatisticsPercentage of students who reportedbeing bullied at school in 2015, bytype: Bullied (total) – 20.8% Made fun of, called names, orinsulted – 13.3% Subject of rumors – 12.3% Pushed, shoved, tripped, or spaton – 5.1% Excluded on purpose – 5.0% Threatened with harm –3.9% Attempted coercion to dosomething they did not want to do– 2.5% Property destroyed – 1.8%Source: Indicators of School Crime and Safety, 2016www.hoganlovells.com15

Why are bullying and harassment such “hot” topics?Statistics Higher percentage offemale than malereported being bullied atschool in 2015 (23vs.19%) Reports of being bulliedby grade level:– Grade 6 – 31%– Grade 8 – 22%– Grade 12 – 15%Source: Indicators of School Crime and Safety, 2016www.hoganlovells.com16

Reports of bullying and violence have declined since 2009–10Of the public schools thatparticipated in the surveys, 11.9percent reported a bullyingincident at school daily or at leastonce a week in 2015–16, adecline from 23.1 percent in2009–10. The department’s twosurveys showed a similar declinein violent incidents, from 25 per1,000 students in 2009–10 to 17.5in 2015-16.Rate of violent incidents at public schools, per 1,000 studentsSource: National Center for Education Statisticswww.hoganlovells.com17

Reports of bullying and violence have declined since 2009–10Of the public schools thatparticipated in the surveys, 11.9percent reported a bullyingincident at school daily or at leastonce a week in 2015–16, adecline from 23.1 percent in2009–10. The department’s twosurveys showed a similar declinein violent incidents, from 25 per1,000 students in 2009–10 to 17.5in 2015-16.Source: National Center for Education Statisticswww.hoganlovells.comPercent of schools reporting bullying daily or at least once a week18

Bullying and violence are most prevalent in middle schoolsLet’s face it: We’d all like to forget ourmiddle school years and all that acne,catty drama, and bullying. That lastone, at least, is backed by data.According to the latest NCES figures,reports of bullying and violence inmiddle school far exceed those inelementary and high schools. Acrossall public schools, 11.9 percentreported bullying issues daily or atleast once a week. Among middleschools, 21.8 percent reported similarbullying rates, while high schoolscame in second, at 14.7 percent.Percent of schools reporting bullying incidents daily or at leastonce a week, and the rate per 1,000 students of all recordedviolent incidents that occurred at schoolSource: National Center for Education Statisticswww.hoganlovells.com19

Cyberbullying, which has become more prevalent across thecountry, appears most common in large schoolsOf schools with more than 1,000 students,27 percent reported cyberbullying daily orat least once a week. In schools that enrollfewer than 300 students, however, 8percent reported daily or weekly incidents.Although 12 percent of public schoolsreported cyberbullying incidents daily or atleast once a week, the issue is mostprevalent among middle and high schools.In the 2009–10 school year — the last timethe Education Department administeredthe survey — 7.9 percent of schoolsreported cyberbullying daily or at leastweekly. Schools in cities, suburbs, towns,and rural communities experiencedcyberbullying at similar rates.Source: National Center for Education StatisticsPercent of public schools reporting cyberbullying daily or atleast once a week in the 2015-16 school yearwww.hoganlovells.com20

ABC District 2017-18 Datawww.hoganlovells.com21

ABC District 2017-18 DataBullying Incidents Reported by Site2016 - 2017121086420Elementary 1www.hoganlovells.comElementary 2Middle 1Middle 2High school 1High school 222

2016-17 DataInitiated Investigation v Substantiated Incident of Bullying121086420Elementary 1Elementary 2Middle 1Initiatedwww.hoganlovells.comMiddle 2High school 1High school 2Substantiated23

ABC District 2017-18 Datawww.hoganlovells.com24

ABC District 2017-18 Datawww.hoganlovells.com25

Recommendations Based on 2017-18 DataWhat do you recommend that ABC District do toaddress any issues identified by 2017-18 data?www.hoganlovells.com26

Why are bullying and harassment such “hot” topics?Impacts of Bullying Victims of bullying are at increased risk of – Psychological and emotional problems: Low self-esteem, high anxiety, depressionSuicide ideation and attempts– Physical health problems: Headache, backache, sleeping problems, bedwetting Perpetrators of bullying are at increased risk of – Substance use, academic problems, and violence later inadolescence and adulthoodSource: CDC Understanding Bullying Factsheet 2016www.hoganlovells.com27

Why are bullying and harassment such “hot” topics?Headlines“Obituary of 15-year-old whokilled self cites school bullies”--The Washington Post (June 23, 2017)“Muslim Schoolchildren BulliedBy Fellow Students AndTeachers”-NPR (March 29, 2017)“If there’s one goal it’s todispel the myth thatbullying is just a harmlessrite of passage or aninevitable part of growingup. It’s not.”- President Obama (March 10, 2011)“After years of alleged bullying,an Ohio teen killed herself. Isher school districtresponsible?”-The Washington Post (May 23, 2016)www.hoganlovells.com28

Why are bullying and harassment such “hot” topics?Headlines“Even popular kids are bullied in high school, researchersfind’”“ . . . Researchers say that the more popular teens are – except for those at the veryapex of the fragile high school hierarchy – the more likely they are to be bullied,perhaps a surprise to people who presumed outcasts were the exclusive targets. . . .”-LA Times (April 2, 2014)“Bullying by peers has effects later in life”--CNN (May 8, 2015)“UT-Austin study: Student bullying costs districts millions”“ [S]chool districts [in California] missed out on about 275 million annually whenstudents stayed home from school because they felt unsafe in class. When a studentmisses school, the local district often receives less funding, depending on the state.”--Houston Chronicle (June 27, 2017)www.hoganlovells.com29

Why are bullying and harassment such “hot” topics?These headlines are disturbing, worrisome, and onlya sampling of the many incidences our nation hasfaced in recent years.They also highlight recent developments that compelschool districts to take appropriate steps to protecttheir students and themselves from incidents ofbullying and harassment and the consequencesthereof.www.hoganlovells.com30

I. BackgroundII. State of the Law1. Overview of Bullying & Harassment Legal Frameworka) Legal Elements of School Bullying & Harassment Claimsb) Life Cycle of a School Bullying or Harassment Claim2. Bullying & Harassment Based On Federally ProtectedCharacteristicsa) Race, Color, National Originb) Sexc) Disability3. Cyberbullying4. State Anti-Bullying LawsIII. Protecting Your Students and Yourselveswww.hoganlovells.com31

I. BackgroundII. State of the Law1. Overview of Bullying & Harassment Legal Frameworka) Legal Elements of School Bullying & Harassment Claimsb) Life Cycle of a School Bullying or Harassment Claim2. Bullying & Harassment Based On Federally ProtectedCharacteristicsa) Race, Color, National Originb) Sexc) Disability3. Cyberbullying4. State Anti-Bullying LawsIII. Protecting Your Students and Yourselveswww.hoganlovells.com32

Elements of School Bullying & Harassment ClaimsWhat types of bullying and harassment claims areschools and districts legally obligated to address? Under federal law, schools must addressharassment if it is discriminatory against a federallyprotected characteristic. State laws greatly vary and can be more expansivethan federal law. Schools districts may have bullying policies that areeven broader.www.hoganlovells.com33

What is harassment? Harassment may beverbal, written, or otherconduct that isthreatening or harmful.– Does not have to includeintent to harm, be directedat a specific target, orinvolve repeated incidents– Only a small part of thelarger universe of bullyingor cyberbullying activitywww.hoganlovells.com34

What is sexual harassment? OCR has defined sexual harassment as“unwelcome conduct of a sexual nature.” What could that mean?–––––unwelcome sexual advancesrequests for sexual favorsverbal, nonverbal, or physical conduct of a sexual naturename-callinggraphic and written statements, which may include useof cell phones or the Internet– conduct that may be physically threatening, harmful, orhumiliatingwww.hoganlovells.com35

Connecticut Law: Bullying Connecticut Legislature took action in 2002 (PublicAct 02-119) to address bullying in public schools, andamended the law a number of times since 2002.www.hoganlovells.com36

Connecticut Law: Bullying How does Connecticut law define bullying?– The repeated use by one or more students of a written, oral, orelectronic communication, such as cyberbullying, directed at orreferring to another student attending school in the same schooldistrict; OR– A physical act or gesture by one or more students repeatedlydirected at another student attending school in the same schooldistrict, that: www.hoganlovells.comCauses physical or emotional harm or damage to the student's property;Places the student in reasonable fear of harm to himself or herself, or ofdamage to his or her property;Creates a hostile environment at school for the student;Infringes on the rights of such student at school; orSubstantially disrupts the education process or the orderly operation of aschool.37

Connecticut Law: Bullying “‘Bullying’ shall include, but not be limited to, awritten, oral or electronic communication or physicalact or gesture based on any actual or perceiveddifferentiating characteristic, such as race, color,religion, ancestry, national origin, gender, sexualorientation, gender identity or expression,socioeconomic status, academic status, physicalappearance, or mental, physical, developmental orsensory disability, or by association with an individualor group who has or is perceived to have one ormore of such characteristics”-- Conn. Gen. Stat. § § 10-222dwww.hoganlovells.com38

Connecticut Law: Bullying How does Connecticut law define cyberbullying?– “[A]ny act of bullying through the use of the Internet, interactive anddigital technologies, cellular mobile telephone or other mobile electronicdevices or any electronic communications.” “Mobile electronic device” means any hand-held or other portable electronic equipment capableof providing data communication between two or more individuals, including, but not limited to, atext messaging device, a paging device, a personal digital assistant, a laptop computer,equipment that is capable of playing a video game or a digital video disk, or equipment on whichdigital images are taken or transmitted.“Electronic communication” means any transfer of signs, signals, writing, images, sounds, dataor intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic,photoelectronic or photo-optical system. Is one action enough to qualify as bullying orcyberbullying?– NO – under Connecticut law, bullying requires “repeated”written, oral or electronic communication.www.hoganlovells.com39

The Universe of Bullying & HarassmentTotal universe ofmisconductBullyingprohibited byschool policyBullyingprohibited bystate lawHarassmentprohibited byTitle IX, Title VI,Section 504 andTitle IIwww.hoganlovells.com40

Selected OCR Policy Guidance Dear Colleague Letter (“DCL”) on Title IX, and Q&A onCampus Sexual Misconduct (Sept. 22, 2017) DCL on Title IX and Transgender Students (May 13, 2016)(withdrawn and rescinded, Feb. 22, 2017) DCL on Obligation of Schools to Designate a Title IXCoordinator (April 24, 2015) Questions and Answers on Title IX and Single-SexElementary and Secondary Classes and ExtracurricularActivities (December 1, 2014) DCL on Supporting the Academic Success of Pregnant andParenting Students (June 25, 2014) Questions and Answers about Title IX and Sexual Violence(April 29, 2014) (withdrawn, Sept. 22, 2017) www.hoganlovells.com41

Selected OCR Policy Guidance (cont’d) DCL on the prohibition against retaliation under Federalcivil rights laws (April 24, 2013) DCL on Addressing Sexual Harassment/Sexual Violence(April 4, 2011) (withdrawn, Sept. 22, 2017) DCL on Schools’ Obligations to Protect Students fromStudent-on-Student Harassment on the Basis of Sex;Race, Color and National Origin; and Disability (October26, 2010) DCL on Accommodating Students’ Athletic Interests andAbilities: Standards for Part Three of the “Three-Part Test“(April 20, 2010) DCL on Sexual Harassment (Jan. 25, 2006) Revised Sexual Harassment Guidance (Jan. 19, 2001)www.hoganlovells.com42

A Quick Caveat regarding Dept. of Education Regulations President Trump’s Regulatory Reform Executive Orders– Series of EOs issued in January and February– Requiring agencies to review all existing regulationsfocusing on whether the regulations: Eliminate jobsAre outdatedCosts Benefits ED appointed a Regulatory Reform Task Force at the end ofApril that will:– Canvas ED’s regulations and policy-oriented guidance, including DearColleague Letters– Seek input from the public on existing regulations– Make recommendations about what regulations should be repealed,replaced, or modifiedwww.hoganlovells.com43

A Quick Caveat regarding ED Regulations andGuidance In September 2017, OCR withdrew the statements of policyand guidance reflected in:– 2011 Dear Colleague Letter on Addressing SexualHarassment/Sexual Violence (April 4, 2011)– Questions and Answers on Title IX and Single-SexElementary and Secondary Classes and ExtracurricularActivities (December 1, 2014) ED announced that it intends to engage in a rulemakingprocess to develop new regulations related to Title IX In the interim, ED issued a new Q&A on Campus SexualMisconduct (Sept. 22, 2017) and said that it would continueto rely on previous guidance (2006 DCL, 2001 RevisedSexual Harassment Guidance)www.hoganlovells.com44

Elements of School Bullying & Harassment ClaimsOCR Letter: Bullying and Harassment (2010) OCR’s October 26, 2010 DCL gave schools anddistricts guidance about what harassment they mustaddress and how they must address it:– School districts that fail to appropriately identify, thwart,and remedy bullying and harassment risk violating federalcivil rights laws and losing federal funds.– “[S]ome student misconduct that falls under a school’santi-bullying policy also may trigger responsibilities underone or more of the federal antidiscrimination lawsenforced by [OCR].”www.hoganlovells.com45

Elements of School Bullying & Harassment ClaimsOCR Letter: Bullying and Harassment (2010) What constitutes “harassment” for which schools arelegally responsible under these civil rights laws? The misconduct must:– (1) Have a nexus to school;– (2) Be based on a protected category;– (3) Be sufficiently severe or pervasive to create a hostileenvironment; and– (4) Be known or reasonably should be known to schooladministratorswww.hoganlovells.com46

Elements of School Bullying & Harassment ClaimsOCR Letter: Bullying and Harassment (2010)What are federally protected categories? Race Color National Origin Sex DisabilityAll are rooted in federal civil rights laws, which we will discusslater in the presentationwww.hoganlovells.com47

Elements of School Bullying & Harassment ClaimsOCR Letter: Bullying and Harassment (2010)When is harassment sufficiently severe orpervasive to create a hostile environment?“Harassment creates a hostile environment when the conduct issufficiently severe, pervasive, or persistent so as to interfere with or limit astudent’s ability to participate in or benefit from the services, activities, oropportunities offered by a school.”www.hoganlovells.com48

Elements of School Bullying & Harassment ClaimsOCR Letter: Bullying and Harassment (2010)“A school is responsible for addressingharassment incidents about which it knowsor reasonably should have known.”www.hoganlovells.com49

Elements of School Bullying & Harassment ClaimsStandards of LiabilityOCR DCL 2010www.hoganlovells.comDavis v. MonroeCounty Board ofEducationStandard: Knows orreasonably shouldhave known(Negligence)Standard: forcement forDepartment ofEducationApplication: Privatelawsuits for damagesRequires: A showingthat a reasonableperson would haveknown aboutharassment/civil rightsviolationsRequires: Actualknowledge by a schoolofficial, consciousdisregard of risk50

I. BackgroundII. State of the Law1. Overview of Bullying & Harassment Legal Frameworka) Legal Elements of School Bullying & Harassment Claimsb) Life Cycle of a School Bullying or Harassment Claim2. Bullying & Harassment Based On Federally ProtectedCharacteristicsa) Race, Color, National Originb) Sexc) Disability3. Cyberbullying4. State Anti-Bullying LawsIII. Protecting Your Students and Yourselveswww.hoganlovells.com51

Life Cycle of a Bullying or Harassment ClaimOCRMonitoringWhen the problem isremedied, the school willcontinue to be monitoredby OCR.OCR usually enters into anagreement with the school or district,but sometimes refers the case to theDOJ.If OCR monitoring yieldsa suspicious result or acomplaint is received,OCR will investigate.OCRInvestigationsIf an OCR investigation showsnoncompliance with federal law,OCR will need to remedy that.Remedieswww.hoganlovells.com52

Life Cycle of a Bullying or Harassment ClaimOCR Monitoring of Bullying & Harassment(1) OCR monitors school districts’ responses to bullyingand harassment.Monitoring tool: Civil Rights Data Collection (“CRDC”) Mandatory survey through which OCR collects data directlyfrom school districts– All districts now participate in the CRDC– Data is collected for one school year at a timeSchool districts must collect and report new data bullying andharassment allegations, policies, and disciplinary measuresTracks harassment and bullying on the basis of disability, race,color, national origin, sex, sexual orientation, and religionwww.hoganlovells.com53

Life Cycle of a Bullying or Harassment ClaimOCR Monitoring of Bullying & Harassment CRDC data goes into a databaseused by OCR in compliancereviews and investigations ofbullying and harassment. The CRDC website allows thepublic to view data for specificschools and districts, andcompare data across multipleschools or districts.www.hoganlovells.com54

Life Cycle of a Bullying or Harassment ClaimInvestigating Bullying & Harassment(2) OCR will investigate a district’s response tobullying and harassment. Investigations can be initiated by complaints orcompliance reviews– Complaint process: filed with OCR by impacted citizens OCR evaluates thousands of complaints received to determinewhether it has the authority to investigate.– OCR received 16,720 complaints in 2016.– Compliance reviews: initiated by OCR OCR has authority to proactively initiate compliance reviews. According to its FY 2015 Report to the President and Secretary ofEducation, OCR initiated 13 compliance reviews in 2016. During an investigation, OCR acts as a “neutral” factfinder. At the close of an investigation, OCR determines whethera school district has complied with its obligations underfederal civil rights laws.www.hoganlovells.com55

Life Cycle of a Bullying or Harassment ClaimInvestigating Bullying & HarassmentComplaints received by OCR in FY 2016-- OCR FY2016 Reportwww.hoganlovells.com56

Life Cycle of a Bullying or Harassment ClaimInvestigating Bullying & HarassmentRecent Changes in Requirements for OCRInvestigationswww.hoganlovells.com57

Investigating Bullying & HarassmentOCR Instructions to the Field re Scope of Complaints Circulated to OCR staff on June 8, 2017 Decisions about whether to expand the scope ofinvestigations are now made on a case-by-case basisrather than determined by the category of complaint This eliminates specialized treatment of certain typesof complaints – including certain sexual violence andTitle VI complaints – that automatically triggeredinstitution-wide investigations– Requirements included multi-year reviews of similar claimsaimed at detecting patterns of discrimination and increasedoversight from OCR headquarterswww.hoganlovells.com58

Investigating Bullying & HarassmentOCR Instructions to the Field re Scope of Complaints Current OCR leadership says this change will makeinvestigations more efficient and responses moretimely Administrative backlog and slow response timewere given as the main reasons for the change inpolicywww.hoganlovells.com59

Investigating Bullying & HarassmentOCR Leadership Clarified New Approach at NACUACandice Jackson, head of OCRand Acting Assistant Secretaryof Education, and ThomasWheeler, Acting AssistantAttorney General in the CivilRights Division of the DOJ,spoke on June 27, 2017 atNational Association of Collegeand University Attorneys(NACUA) to help clarify the newadministration’s approach tocivil rights in educationwww.hoganlovells.comSource: Inside Higher Ed60

Investigating Bullying & HarassmentOCR Leadership Clarified New Approach at NACUA Emphasized that the role of OCR has notchanged, still “to enforce the civil rights guaranteedto our nation’s students by certain civil rights laws” Argued that civil rights enforcement is not beingscaled back– Critics have voiced concerns over the combination of thewithdrawal of OCR’s Dear Colleague Letter ontransgender students with these investigative changes Aims to be less confrontational and morecooperative during investigationsSource: Inside Higher Edwww.hoganlovells.com61

Investigating Bullying & HarassmentOCR Leadership Clarified New Approach at NACUA Methods of policymaking – moving away from DCLs– The new administration will not regulate via DearColleague Letters, but will use notice and commentprocedures for new regulations– Previously issued Dear Colleague Letters may be openedup to negotiated rulemakingSource: Inside Higher Edwww.hoganlovells.com62

Recent Changes in Requirements for OCRInvestigations: Take-Aways There are many blanks still to be filled in about thenew administration’s approach to investigations– What types of investigations will be prioritized?– What policies will be developed in unsettled areas of thelaw, such as rights of transgender students? Schools that are investigated will likely notexperience the expansive, drawn out investigationsthat became more common in recent years OCR will aim to resolve complaints quicklywww.hoganlovells.com63

Life Cycle of a Bullying or Harassment ClaimOutcomes of Findings of Noncompliance(3) Districts that fail to respond appropriately tobullying and harassment risk may face: OCR enforcement; Rarely, lawsuits byDOJ; or Private litigation.www.hoganlovells.com64

Life Cycle of a Bullying or Harassment ClaimOutcomes of Findings of NoncomplianceOCR Enforcement Mechanisms OCR will usually enforce compliance through one of thefollowing mechanisms:–––Entering into a voluntary agreement;Seeking to terminate federal funds; orReferral to the DOJ for investigation for possible enforcement.www.hoganlovells.com65

Life Cycle of a Bullying or Harassment ClaimOutcomes of Findings of NoncomplianceDOJ Lawsuits If OCR determines that a violation has occurred and thedistrict refuses to resolve the violation, OCR may refer thecase to DOJ.– DOJ will investigate and determine whether to initiate litigationagainst the district. OCR may initiate an investigation without a referral fromOCR.www.hoganlovells.com66

Life Cycle of a Bullying or Harassment ClaimOutcomes of Findings of NoncompliancePrivate Litigation Students (and parents on behalf of their children) mayalso sue districts and may seek money damages whendistricts fail to adequately address harassment inviolation of federal civil rights laws or state bullying laws. With increasing frequency, parents are pursuinglawsuits when bullies target their children and – in theparents’ opinion – the district fails to respondappropriately. Davis v. Monroe County Board of Education, 526 U.S.629 (1999) controls private lawsuits against schools.Schools are only liable for damages in cases of studenton student harassment when they display deliberateindifference with regards to the bullying.www.hoganlovells.com67

Remedies for Failure to Address Harassment:Case Studies Consent Decree– Anoka-Hennepin SchoolDistrict (MN) Resolution Agreement– Pasadena Unified SchoolDistrict (CA) Private Litigation– Fenner v. Freeburg Comm.High School District (IL)– Sawyer Rosenstein (NJ)www.hoganlovells.com68

Consent DecreeAnoka-Hennepin School District Complaint submitted to DOJ that a female student wasbeing “harassed by peers” for being “too manly.” Otherfemale students reported similar teasing. Some malestudents were being called “gay boys” and “girly.” DOJ opened an investigation (Nov. 2010). Dept. of Ed. Office of Civil Rights (OCR) joinedinvestigation (Jan. 2011).– DOJ used authority under Title IX, Title IV, and ED regulationswhich prohibit discrimination on the basis of sex. (Remember:OCR will consider harassment based on not conforming togender stereotypes as harassment on the basis of sex.)www.hoganlovells.com69

Consent DecreeAnoka-Hennepin School District DOJ and OCR visited the district multiple times– Conducted interviews with students, parents, teachers,staff, and administrators– Reviewed more than 7,000 pages of documents In July 2011, six students filed federal lawsuitsagainst the school district, school board, andseveral school administrators. In August 2011, OCR and DOJ joined settlementdiscussions with the District, SPLC, and NCLR.www.hoganlovells.com70

Consent DecreeAnoka-Hennepin School District All Parties entered into Consent Decree, filed inU.S. District Court for the District of Minnesota.– When fully implemented, investigation resolved.– District agreed to: www.hoganlovells.comReview and improve its policies and procedures concerning sexbased harassment by working with an Equity Consultant;Hire or appoint a Title IX and Equity Coordinator;Conduct training for all faculty, staff, and students; clarify policiesfor reporting and responding to harassment;Hire a Mental Health Consultant to assist students subject toharassment;Create an Anti-bullying/ Anti-harassment Task Force.71

Consent DecreeAnoka-Hennepin School District– Consent Decree (cont’d) Administer an anti-bullying survey each year;

middle school years and all that acne, catty drama, and bullying. That last one, at least, is backed by data. According to the latest NCES figures, reports of bullying and violence in middle school far exceed those in elementary and high schools. Across all public schools, 11.9 percent reported bullying issues daily or at least once a week.

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