Arizona School Boards Association ’ s School Law Conference September 9, 2011

1. Confronting Bullying: A National Issue, A Local Problem, and An Opportunity To Institute Positive Change Arizona School Boards Association’s School Law Conference September 9, 2011 JW Marriott Camelback Inn, Scottsdale

2. Introductions Sonja Trainor Senior Staff Attorney National School Boards Association strainor@nsba.org

3. An All-Too Common Scenario • Middle school cheerleeder elected “Queen of Charm” creates a facebook page from her home computer called “S.A.S.H.” Or “Students Against Sluts Herpes”. • Targets a girl named Shay • Pictures are posted showing by another student showing Shay with red dots on her face and an “enter at your own risk” sign over her privates • Shay won’t come to school • School investigates and disciplines • No evidence facebook accessed from campus

4. A National Conversation Begins . . . • With an unprecedented focus on the issue of bullying in schools by the Obama administration. • Multi-agency Approach • Two White House conferences on bullying • President Obama himself appeared in two videos with personal messages to the country

5. The Administration’sMulti-Agency Approach • Federal Interagency Workgroup on Bullying • ED, NIH, SAMHSA, USDA, CDC, NIJ, HRSA • Stopbullying.gov is managed by the Department of Health and Human Services in partnership with the Departments of Education and Justice

6. Two White House Conferences on Bullying • National Bullying Summit August, 2010 • Conference on Bullying Prevention March, 2011 • Gathered authorities, advocates, researchers • Result: bolstered website and calls for more research, and many more meetings.

7. The President Appeared in Two Videos • 10/21/10: In response to suicides by gay students who were bullied, President Obama appeared in a video for the “It Gets Better” campaign saying we have to dispel the myth that bullying is just a normal rite of passage.http://www.whitehouse.gov/blog/2010/10/21/president-obama-it-gets-better • 3/9/11: President and Mrs. Obama addressed bullying in a Facebook video released on the day of the second White House Conference. http://www.whitehouse.gov/blog/2011/03/09/president-obama-first-lady-address-bullying-facebook-video

8. U.S. Department of Education • Office of Safe and Drug-Free Schools • Office for Civil Rights • Secretary Duncan announced renewed vigor in civil rights enforcement in March, 2010 • OCR Chief Rusalynn Ali took aggressive approach, even calling for disparate impact analysis in Title VI cases. • 54 reported compliance reviews as of October 2010, including analysis of disparate discipline rates • OCR issued numerous guidance documents reminding K-12 and postsecondary institutions of its enforcement positions

9. Federal Civil Rights Laws Enforced by ED • Title VI – prohibits discrimination in programs/activities receiving Federal financial assistance based on race, color, or national origin. • Title IX - prohibits discrimination in programs/activities receiving Federal financial assistance based on sex. • ADA title II/Section 504/IDEA – collectively prohibits discrimination in programs/activities receiving Federal financial assistance and state and local governments. IDEA and Section 504 impose the FAPE requirement.

10. OCR Guidance since 2009 • Enrollment practices re: undocumented students/parents http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201101.html • Title IX requirements regarding sexual harassment and sexual violence http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html • Title IX 3-part test (Part 3) to determine http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100420.html

11. OCR Guidance since 2009, cont’d • E-readers accessibility for students with disabilities http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html • Treatment of LGBT student groups (GSA) under Equal Access Act http://www2.ed.gov/policy/elsec/guid/secletter/110607.html • Harassment and bullying • Dear Colleague letter October 26, 2010 http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html • Fact sheet October 26, 2010 http://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201010.html • Letter from Duncan to state officials and examples of provisions in state anti-bullying laws December 16, 2011 http://www2.ed.gov/policy/gen/guid/secletter/101215.html • And more!

12. OCR Dear Colleague Letter October 26, 2010 • Reminded schools that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal anti-discrimination laws. • “By limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment.”

13. OCR Dear Colleague Letter October 26, 2010 • The letter purports to “articulate[] the legal standards that apply in administrative enforcement and in court cases where plaintiffs are seeking injunctive relief.” • OCR expressed a strong enforcement position • Broad standard for school district responsibility • Many factual scenarios based on actual OCR investigations • Myriad of remedial measures school district could/should have taken in each case

14. OCR Dear Colleague Letter’s Broad Standard • A Public school is responsible for addressing harassment based on federally-protected categories: • that is severe, pervasive or persistent; • about which it knew or should have known; • that interferes with or limits a student’s participation in or benefit from the services, activities or opportunities offered by the school. • OCR suggested in its letter that a school should eliminate the harassment.

15. Davis v. Monroe • In 1999, the Supreme Court articulated the standard that applies when a person seeks money damages from a recipient of federal funds based on peer sexual harassment • “[F]unding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they had actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

16. NSBA responds to the Dear Colleague Letter • NSBA issued a response to the DCL stating that in our opinion, it articulates an enforcement standard that goes far beyond the peer sexual harassment standard applicable in cases where the plaintiff is seeking money damages articulated by the Supreme Court, and may invite litigation against public schools. http://www.nsba.org/SchoolLaw/Issues/Safety/NSBA-letter-to-Ed-12-07-10.pdf

17. NSBA responds to the Dear Colleague Letter:OCR standard v. Title IX/Davis • OCR • Knows or reasonably should have known • Severe, pervasive or persistent • Interferes with or limits participation • Title IX/Davis • Actual knowledge • Severe, pervasive and objectively offensive • Effectively bars access

18. NSBA responds to the Dear Colleague Letter:OCR standard v. Title IX/Davis • OCR • Eliminate harassment and prevent it from recurring • Multiple remedial measures • May be required to respond to parents’ demands • Title IX/Davis • Respond in a manner not clearly unreasonable • Not required to respond to remedial demands of parents

19. NSBA responds to the Dear Colleague Letter:Additional Critiques • Publically labeling an incident as harassment could violate FERPA. • National origin/religion distinction unclear • What about the First Amendment?

20. OCR Responds to NSBA • And basically digs in its heels. • The DCL was issued to equip schools to better prevent and respond to harassment, thereby avoiding litigation, not inviting it. • The October 2010 letter reflected OCR’s long-standing enforcement position; it was not new, nor was it a restatement of the law applicable to suits for money damages. http://www.nsba.org/SchoolLaw/Issues/Equity/ED-Response-to-NSBA-GCs-Letter-to-ED-on-OCR-Bullying-Guidelines.pdf

21. The Conversation Continues • U.S. Commission on Civil Rights briefing on inter-student violence -- May 13, 2011 • NSBA General Counsel Francisco Negrón presented NSBA’s position to a part-hostile, part-sympathetic Commission. • NSBA issued a statement to the Commission citing research about prevalence, the importance of interest groups working together to prevent the scourge of bullying, and urging an approach that allows local control, rather than sweeping all bullying incidents under the federal civil rights umbrella. • NSBA followed up with 400+ pages of supplemental materials showcasing the work of school boards and state associations to prevent and address bullying and harassment.

22. NSBA To the Commission: “[NSBA] continues to express concerns about federal initiatives that may over-burden districts when state and local initiatives appear to be working well. We urge you to consider the successes documented here as you determine whether additional federal involvement is needed in this area . . . .”

23. NSBA Materials submitted toU.S. Commission on Civil Rights • Position Statement -- May 13, 2011 http://www.nsba.org/SchoolLaw/Issues/Safety/Briefing-on-Inter-Student-Violence.pdf • Supplemental Materials – May 26, 2011 http://www.nsba.org/SchoolLaw/Issues/Safety/Supplemental-Materials-on-Inter-Student-Violence.pdf

24. State Anti-Bullying Statutes • 46 states current have an anti-bullying law. • Almost all (41) have passed or amended these laws between 2008 and June 2011. • States that don’t – HI, MI, MT, and SD – have state agency directives/guidance requiring or encouraging school districts to have anti-bullying policies. • NY and ND enacted for the first time during the 2010-2011 legislative session. MA enacted for the first time in the 2009-2010 session.

25. Most State Anti-Bullying Statutes. . . • Define bullying/harassment/intimidation, including a geographical requirement (at school, bus, event) • Include electronic conduct, sometimes in the criminal code • Require or encourage bullying prevention in training standards or curriculum

26. Most State Anti-Bullying Statutes. . . • Require school districts to develop, adopt and publically release policies with enumerated components • Require the state agency to develop a model policy, publish guidance, provide resources, or oversee training • Require schools and districts to gather data and report to state agency, which in some cases must report annually to the state legislature

27. Most State Anti-Bullying Statutes. . . • Specifically decline to create a cause of action • Grant immunity for good faith reporting of bullying incidents under the statute’s or policy’s required procedures.

28. Not As Common • Notice to parents of the perpetrator and the target. • Mention of non-punitive interventions/strategies that may be used in addition to discipline • Separation or distinction between bullying and harassment (the latter being a legal term applying to conduct based on categories protected by federal/state law) • Inclusion of student-to-employee conduct in the definition of bullying/harassment/intimidation

29. Charting New Territory • MA’s law includes a broad definition of bullying that includes off-campus behavior: Bullying is prohibited even at non-school-related locations/events or through use of non-school-owned technology if it creates a hostile environment at school for the victim, infringes on the victim’s rights at school, or materially and substantially disrupts the education process or the orderly operation of the school. Section 5(b)

30. Charting New Territory • NY’s Dignity For All Students Act law focuses on discrimination and harassment • Requires that school districts adopt policies to protect children against bullying based on a number of listed categories including, sexual orientation and weight  • Says schools should guard against those and other forms of discrimination and harassment, including ethnicity and disability.  • Requires the state agency to provide guidance on topics including “tolerance” instruction

31. Charting New Territory • NJ’s Anti-Bullying Bill of Rights, signed in January 2011, is the most comprehensive to date. Highlights: • Extensive data reporting on district and school report cards, from the Superintendent to the board; • Teacher professional development training on suicide prevention, relationship between risk of suicide and bullying, and reducing the risk in members of communities at high risk; • Board member training on bullying and the board’s responsibilities under the statute;

32. Charting New Territory • NJ’s law, cont’d: • Off-campus behavior included in the definition of bullying; • Each school must have an anti-bullying specialist and each d9istrict an anti-bullying coordinator; • Extensive and detailed investigation and disciplinary procedural requirements

33. New Jersey’s Anti-Bullying Bill of Rights’Investigation Deadlines • Incidents must be reported verbally to the school principal on the same day, and in writing within two school days; • Principal must initiate the investigation within one school day of the report and complete it within 10 school days of the written report; • Results of the investigation must be reported to the superintendent within two school days of its completion and to the school board no later than its next board meeting; • Parents receive written information about the investigation within five school days of the investigation report going to the board and may request a board hearing, which must be held within 10 days of the request;

34. New Jersey’s Anti-Bullying Bill of Rights’Investigation Deadlines • School board issues a decision on the superintendent’s decision at the next meeting following its receipt of the report (which may be appealed to the SEA); • Parent/student may file a complaint with the state Division on Civil Rights within 180 days of the incident; AND . . . • Every school district must annually review and assess its policy and transmit a copy of the revised policy to the executive county sup within 30 school days of the revision; • The state DOE must amend its model policy no later than 90 days after the act’s effective date.

35. BullyPolice.org gives 2005 version a B-. “Grade” is likely to improve with the latest amendments. What do you think NJ got? What about Arizona’s recently-amended anti-bullying statute?

36. NSBA State Anti-Bullying Statutes Charts • State Anti-Bullying Statutes http://www.nsba.org/SchoolLaw/Issues/Safety/Table.pdf • Bullying Definitions in State Anti-Bullying Statute http://www.nsba.org/SchoolLaw/Issues/Safety/Definitions.pdf • State Education Agency Model Anti-Bullying Policies and Other Resources http://www.nsba.org/SchoolLaw/Issues/Safety/State-Educational-Agency-Model-Anti-Bullying-Policies-and-Other-Resources.pdf

37. Litigation Trends – Sued by the Victim • Are there more lawsuits against school districts alleging liability for student bullying? • From what we see reported in the media and anecdotally through reports from COSA members, yes.

38. Litigation Trends – Sued by the Victim • I looked at 14 complaints filed against school districts by victims of bullying/harassment in state and federal courts between January 2010 and July 2011. • Basic claim is that the student has a right to be safe and free from bullying at school; school officials have a duty to provide an atmosphere free from repeated bullying; and school officials breached their duty to keep the student safe.

39. Sued by the Victim • Complaints allege multiple causes of action. Some favorites are: • Violation of federal civil rights statute (Title IX most common) • Violation of 14th Amendment due process/equal protection concepts • ALWAYS, violation of state statutes and common law concepts (state human rights law, negligence, failure to supervise) • Misc. (negligence per se, violation of obligations to maintain lawful policies and procedures)

40. Sued by the Victim – decided cases • If complaints are on the rise, plaintiffs’ success rates are not. • One federal district court judge recently noted that bullying victim plaintiffs have had limited success, and have for the most part lost cases under Title IX, substantive due process, equal protection and state tort law. • BUT, school districts have lost some cases, and the standards continue to evolve

41. Decided Cases – State Anti-Bullying Statutes • Only a handful of courts have addressed whether a student could bring a cause of action under a state anti-bullying statute. • Finkel v. Dauber, 2010 WL 2872874 (N.Y. Sup. 2010). Cyberbullying is not cognizable tort action in NY. • Karlen ex rel. J.K. v. Westport Bd. of Educ., 638 F.Supp.2d 293 (D.Conn. 2009); Dornfried v. Berlin, 2008 WL 5220639 (Conn.Super. 2008); Santoro v. Town of Hamden, 2006 WL 2536595 (Conn. Super. 2006). No cause of action under state anti-bullying statute. • Chisolm v. Tippens, 658 S.E.2d 147 (Ga.Ct.App. 2008). No Section 1983 for violation of state statute.

42. Decided Cases – Federal Civil Rights Statutes • Federal courts almost always apply Davis • The standard is often applied in 5 parts: • the student is a member of the protected class; • the student was harassed based on his disability/sex/race; • the harassment was sufficiently severe, pervasive and objectively offensive that it deprived the victim of access to the school’s educational opportunities or benefits (or created an abusive environment); • the school knew of the harassment; and • The school was deliberately indifferent to the harassment

43. Decided Cases – Title IX • Popular cause of action because: • Much peer banter involves the use of offensive words with sexual connotations, so it’s often easy to characterize bullying as sexual harassment; • The law is relatively well-developed; and • Money damages are available.

44. Decided Cases – Title IX • Court decisions often occur at the summary judgment stage. • The court decides whether the Davis standard has been met. • Key questions are: • Was there sufficient evidence of sex-based harassment extreme enough to meet the Davis standard? • Does the evidence show that the district, aware of the harassment, acted in a manner “not clearly unreasonable,” or does it show that the district was deliberately indifferent?

45. Selected Decisions – Title IX • Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 2011 WL 2698975 (5th Cir. 2011). Dispute between two cheerleaders, the mother of one, and the school, which led to teasing and name-calling (“ho”) and behavior bordering on bullying. Court decided, as a matter of law, the conduct was not sexual harassment, nor was it severe, pervasive, or objectively unreasonable, and the school district was not deliberately indifferent.

46. Sanches, cont’d • The court found the suit to be “nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad,” and “… a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.”

47. Selected Decisions – Title IX • Brodsky v. Trumbull Bd. of Educ., 2009 WL 230708 (D.Conn. 2009). Like Sanches, the harassment alleged in this case amounted to sexually-tinged name-calling between individuals after a personal falling-out. • The court found the name calling was a result of the falling-out, not one girl’s hostility to others of the same sex. • “Title IX was not intended and does not function to protect students from bullying generally (as opposed to sexual harassment or gender discrimination) or to provide them recourse for mistreatment that is not based on sex.”

48. Selected Decisions – Title IX • Wolfe v. Fayetteville School District (Arkansas 2010). Jury ruled in favor of the district. • District claimed the student was “bullied” and not “sexually harassed.” Though the plaintiff was apparently called a “fag” and “faggot,” the district argued that students did not use these terms in a sexual way and did not think the student was gay. • The district also argued that the plaintiff also engaged in harassment. • District claimed the principal investigated allegations of bullying and asked teachers to monitor the plaintiff to put a stop to the name calling. • Plaintiff asserted a “pattern of conduct” theory.

49. Selected Decisions – Title IX • Patterson v. Hudson Area Schools, 724 F.Supp.2d 682 (E.D. Mich. 2010). Jury issued $800,000 verdict against the school district. • Plaintiff relied on the “pattern of conduct” theory. • Jury decided district failed to do enough to protect a student from years of peer-to-peer sex-based bullying.  • BUT . . .

50. Patterson, cont’d • . . . The district court judge set aside the jury’s verdict, finding: • "the harassment to which Plaintiff was subjected in sixth, seventh and ninth grade constituted bullying, not sexual harassment,"  and • "Title IX protects [against] only harassment or discrimination based on sex. • And dismissed the case as a matter of law.