Bullying: Why districts and parents fail: PART 4 – civil rights issues

Civil rights need to be a consideration when talking about bullying. In this series I am trying to hit topics in the order in which events happen (law, definition, report, investigation, etc.). So why a discussion of civil rights at this point?

“When responding to incidents of misconduct, schools should keep in mind the following:

• The label 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.
• When the behavior implicates the civil rights laws, school administrators should look beyond simply disciplining the perpetrators. While disciplining the perpetrators is likely a necessary step, it often is insufficient. A school’s responsibility is to eliminate the hostile environment created by the harassment, address its effects, and take steps to ensure that harassment does not recur. Put differently, the unique effects of discriminatory harassment may demand a different response than would other types of bullying.” ~Dear Colleague Letter, OCR[1. U.S. Department of Education, Office for Civil Rights, Dear Colleague Letter, October 26, 2010]

(If you are a school administrator and are not familiar with Dear Colleague letters, shame on you. OSEP Dear Colleague letters? How about your state Special Ed advisories? Extraordinarily important clarifications, recommendations, and insights, as written by people more informed than many of us.)

Civil rights issues must be considered early on. And there can be a lot more liability on the district’s part if civil rights are denied or violated.

The questions are many. Is the harassment disability based? Gender based? Is the way the district handles the situation different than if the situation did not involve civil rights?

A real example?

I have a case of two boys being bullied by a girl. She repeatedly taunts one as “gay,” “retarded,” and “stupid.” That young man is on the autism spectrum and hangs around with his best friend, another male. She also taunts another young man who has severe allergies (and has a 504 plan for such) by shouting “you ruin everything with your allergies,” while turning his friends against him. The district has ignored over a year’s worth of emails from the parents. Nothing was done to stop the bullying. And then I got a call.

Both boys are in a “protected class” … disabled. Without too many details, after trying to get things right, and failing, I filed two complaints with the OCR (Office for Civil Rights). They looked at the complaints, decided that if in fact the complaints are accurate then the cases are under their jurisdiction. It is at that point that they inform the district of an active case(s). The district was recently informed of such. Now the cases are in the hands of federal lawyers, federal investigators, and the families do not need a lawyer nor any representation.

In a bizarre twist, in some ways the district will be better off if in this case it is found that they do nothing in response to any bullying complaint since then they do not handle bullying against a protected class differently than they do against a “typical” student. Of the many questions asked here …

• Was the bullying disability based?
• Did the incidents deprive the targets (word used as opposed to “victims”) of FAPE [3.Free and Appropriate Education – guaranteed to all]?
• Were the incidents handled differently than others that are not disability based?
• Is there a hostile environment being created (in general and for those disabled)?

And, no, it does not matter that the aggressor (word used as opposed to “bully”) herself is in special education or in a protected class.

There is a tremendous amount of liability for the school district. First there is the cost of the investigation itself in time and money. Second, any changes and ramifications ordered by the OCR are typically costly. Third, the potential loss of federal funding.

All the parents had to do (or their advocate, or other working on behalf of the student) was file an honest complaint with the OCR, probably an expenditure of an hour or so.

The ignoring of the emails for over a year does not come into play with the OCR, nor do the other errors vis-a-vis the reporting and investigating of the bullying. Those issues are part of procedural complaints to the state.

I had another case where the only civil rights issue was a the way a bully referred to the young woman he was taunting. He changed her last name from “Lawton” to “Whoreton.” That alone was enough for the OCR to take the case (again, the school district ignored and completely bungled the handling of the bullying for over a year) for sexual harassment. There were no other sexual or gender overtones in the incidents. Yet the OCR ensured that the district, shall we say, did the right thing and did right by the young lady.

Civil rights are a big deal. And the Office for Civil Rights, within the U.S. Department of Education is there to ensure that a student’s civil rights are not violated. They take their job seriously and are very easy to work with. It is the district’s responsibility to protect the student’s civil rights, and when they fail, it is the OCR who tells them so.

Next we will talk about students in Special Education, as aggressors and as targets.