KNOW YOUR RIGHTS: Bias-related School Harassment and Violence

1. KNOW YOUR RIGHTS: Bias-related School Harassment and Violence By Angela Chan, Staff Attorney Juvenile Justice and Education Project

2. What is bias-related harassment? • Hateful or biased behavior is motivated in part or in whole by hostility toward a person’s real or perceived race, nationality, religion, disability, gender, or sexual orientation. • Hate or bias-related bullying causes emotional suffering, physical injury, or property damage through intimidation, unequal treatment, exclusion, harassment, bigoted slurs or epithets, force or threat of force, or vandalism. 1. CA Education Code sections 200, 220, 233, and 48900.3 describe policies and intent specific to hate-motivated violence. CA Penal Code sections 422.6, 422.7, 422.75, 422.8, 422.9, 422.95, and 628 define what constitutes hate-motivated crimes. 2

3. Why are we concerned about bias-related school harassment? • Equal access to education is about more than the quality of academic instruction that is offered in the classroom. • Equal access to education also requires an environment that supports learning. • It is difficult, if not impossible, for students to reach their full potential if they fear for their safety. • The long-term effects of bullying, cruelty, bias, and hate-motivated behavior impact student success—both for the victims and for the perpetrators. 3

4. It’s Against the Law To Harass and Discriminate! Federal Law • Title VI of the Civil Rights Act of 1964prohibits discrimination on the basis of race, color, and national origin (including language discrimination) in programs and activities receiving federal financial assistance. • Title IX of the Education Amendment of 1972 prohibits discrimination based on sex in any education program or activity receiving financial assistance. • Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in any programs and activities receiving federal financial assistance. 4

5. California Law • Ca Ed Code Sec 200 et seq: prohibits discrimination in public schools based on sex, ethnic group identification, race, national origin, religion, mental or physical disability. • CA Ed Code Sec 32280 et seq: requires each school to develop and implement a School Safety Plan <www.cde.ca.gov/spbranch/safety/> as a part of its overall local education plan and to revisit the plan annually and amend it as needed. • AB 394 (Levine): CA Department of Education monitors school districts for their compliance with nondiscrimination requirements (adopting policy, publicizing, maintaining records of complaints). 5

6. California Law continued… • CA PENAL CODE SEC 422.6 et seq. (Hate Crime Law): prohibits hate crimes on the basis of "race, color, religion, ancestry, national origin, disability, gender, or sexual orientation," including the perception of any of these characteristics. • RALPH AND BANE CIVIL RIGHTS ACTS (Cal. Civ. Code §§ 51.7 and 52) provides that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sexual orientation, sex, age, disability or position in a labor dispute. • UNRUH ACT (Cal. Civ. Code § 51) provides for the right to be free from discrimination in public accommodations regardless of sex, race, color, religion, ancestry, national origin, sexual orientation or source of income. • School districts ARE business establishments for purposes of the Unruh Civil Rights Act. Sullivan v. Vallejo City Unified Scho. Dist., 731 F.Supp. 947, 952 (E.D. Cal. 1990). 6

7. Local Law: County and City • Many cities and counties also have local provisions outlawing bias-related harassment and violence in public facilities (institutions?). • Institutions can lose funding if they fail to comply with these provisions and allow discrimination. 7

8. How do the laws work?There are 2 theories for a discrimination complaint: (1) Different Treatment by Agents or Employees - 4 Factors: • Did an agent or employee of a recipient treat someone differently in a way that interfered with or limited the ability of a student to participate in or benefit from a program or activity of the recipient? • Did the different treatment occur in the course of authorized or assigned duties or responsibilities of the agent or employee? • Was the differential treatment based on race, color, or national origin? • Did the context or circumstances of the incident provide a legitimate, nondiscriminatory, nonpretextual basis for the different treatment? 8

9. How do the laws work?There are 2 theories for a discrimination complaint: (2) Hostile Environment - 3 Factors: • A racially hostile environment existed; • The recipient had actual or constructive notice of the racially hostile environment; • Constructive notice is established if the alleged harasser is an agent or employee of a recipient acting within the scope of his or her official duties. • In the education context, constructive notice is established if the school district does not have a policy that prohibits the conduct of racial harassment, or does not have an accessible procedure by which victims of harassment can make their complaints known to the appropriate officials. • The recipient failed to respond adequately to redress the racially hostile environment. 9

10. What do to if you have been a victim of any kind of harassment, or violence: STEP 1: File a written complaint with your school. • The complaint should include what, when, how, and who. • Give the written complaint to your principal. • Keep a record of when you told the principal and what actions he or she took. REPORT IT! 1. Photo from http://i.ehow.com/images/GlobalPhoto/Articles/5189472/notepad-main_Full.jpg 10

11. REPORT IT! STEP 2: • If your school failed to respond in a satisfactory manner, file a complaint with the “compliance officer” in your school district. • If you are being harassed based on your race, sexuality, gender, religion, etc., file a written Uniform Complaint with your School District (http://www.cde.ca.gov/re/cp/uc/) • If you are unsatisfied with a decision made by your School District, file an appeal within 15 days to the California Department of Education. • Alternatively, you can choose to first file a discrimination complaint with the U.S. Department of Education, you have to do so within 180 days of incident. You can file a complaint on-line at http://www.ed.gov/about/offices/list/ocr/. • REMEMBER — You must file your complaint within 6 months of the incident if it is bias-related!!! 11

12. REPORT IT! STEP 3: • File a lawsuit in federal or state court alleging violations of civil rights laws. Although it is not required, it is recommended that you first try to file an administrative complaint (see Step 1 and 2). 12

13. Example of a Case:Monterey School District • In 2007, a 13-year-old Muslim American student was repeatedly ordered by a school official to remove her hijab. The student filed an administrative complaint with the District alleging religious and national origin discrimination because students were not allowed to wear headscarves for religious reasons. • The case settled: As a result of the settlement, the district issued a public apology, amended district-wide dress code policy, held a community education forum, and expanded cultural competency trainings given to staff.  13

14. Who can be a bully? • Students can be bullies. Where? • On the bus, in the classroom, on the internet, en route to/from school, on the playground etc. • Adults may also be bullies. How? • In schools some teachers, office staff, bus drivers, school security personnel, and even parent volunteers use tactics ranging from sarcasm to severe bullying as a means of disciplining students and/or maintaining power. • Like the student bully, the adult perpetrator often disregards the hurtfulness of his/her actions or blames the target for overreacting or not being able to “take it.” • Adults also overlook bullying when they condone mistreatment by students who harass or haze younger students or who use derogatory language or label groups of students. Allowing students to engage in casual cruelty, sexual harassment, hateful or bias-based behavior gives the perception that bullying is an acceptable, sanctioned tradition. 14

15. How big of a problem is bullying in school? Nationally • 50% of all hate crimes are committed by young men under twenty years of age.1 • 10% of all hate crimes occur in schools and colleges. California • According to the California Health Kids Survey, between 27-30% of middle and high school students have experienced harassment due to their race, religion, gender, sexual orientation, or disability.2 • Ten Ways to Fight Hate: A Community Response Guide to Hate Crime and Hate Groups. Southern Poverty Law Center, October 1998 <http://www.tolerance.org/10_ways/index.html>. • California Health Kids Survey, supported by California Department of Education http://www.wested.org/cs/chks/print/docs/chks_home.html. 15

16. How big of a problem is bullying in school? 2002 California Health Kids Survey: 37% of middle and high school students reported some harassment, and about three-quarters of these experiences were bias-related. 16

17. Consequences of Victimization • Violence and delinquency • Lowered academic performance • Truancy • Drug use • Risky sexual behavior • Depression • Suicide • Withdrawal from family and friends (Isolation) 1 Asian/Pacific Islander Communities: An Agenda for Positive Action, National Council on Crime and Delinquency, 2001. 2 Thao N. Le, “Non-Familial Victimization Among Asian Pacific Islander Youth: The Oakland Experience.” Journal of Ethnicity in Criminal Justice, Vol. 3(3) 2005. 17

18. Challenges to Improving School Safety: • Language and cultural barriers between school and parents, school and students, and students; • Tension and misunderstanding among students and between students and staff due to culture, race, gender, or class; • Lack of culturally-specific, gender-responsive tailored programs; • Teachers and administrators relying on suspension, expulsion, and police reporting as the first and only responses to violence and harassment. • Lack of awareness and training on school policies against harassment and violence. • Any more? Thao N. Le, “Non-Familial Victimization Among Asian Pacific Islander Youth: The Oakland Experience.” 18

19. Big Picture Approach to Improving Safety in Schools • The most effective model is a comprehensive program using a combination of interventions— • School-wide, • Classroom level, • Individual level (students, parents, staff). • To create a social environment characterized by: • Positive adult involvement; • Firm limits for unacceptable behavior for student and teachers; • Consistent use of sanctions/programs for rule violations; and • Develop alternatives to zero-tolerance practices that address cause of the conflict. 19

20. School-wide Prevention/Intervention • Adopt an anti-harassment policy. • Implement an anonymous complaint system. • E.g., Safe School Line in SFUSD • Publicize policyto parents and students • E.g., By including in handbook, posting around campus, and making available on website. • Trainstaff and students on the policy and how to report a violation of the policy. • E.g, in SFUSD, teachers must report any harassment and bullying within 24 hours to principal. • Maintain record of complaints received and the steps taken by the school/district to investigate and resolve the complaint. • Follow up by continuing to track the offender’s progress and behavior and encourage him/her to become more involved in positive school activities. 20

21. San Francisco’s (SFUSD) Safe School Line IMPROVE SAFETY IN YOUR SCHOOL COMMUNITY. Call this number to report incidents or concerns affecting the safety of any student. Three ways to report: (1) (415) 241-2141 (2) www.sfusd.edu (3) E-mail to safeschool@sfusd.edu All callers will remain anonymous unless you choose to give them your information. Examples of what you can report: ∗ threats/intimidation ∗ racial/gender slurs ∗ harassment/bullying 21

22. School-Wide Prevention/Intervention • Conduct a survey of both staff and students to determine the prevalence of bullying (see also CA Health Kids Survey) • Establish a school-level committee consisting of teachers, administrators, counselors, other school staff, school-based mental health professionals, parents/guardians, and students to perform the following tasks: • Evaluate the survey results. • Develop a coordinated system for supervising students during break periods, which is when bullying occurs most frequently at school. • Develop specific plans for implementing a program in which different sources convey a consistent message about the school’s views and attitude toward bullying. • The committee would also be charged with program oversight and ongoing coordination of the school’s efforts to stop bullying behavior at school. • Adopt a school-wide climate program that utilizes alternatives to suspension and expulsion (i.e. Caring School Communities, Tribes, Olweus, etc.) 22

23. Classroom Prevention and Intervention • Embed in class curriculum (e.g, history class) a critical understanding of race, ethnicity, gender, sexuality, etc. • See e.g., Anti-Defamation League and Facing History and Ourselves websites • Teach classroom conflict resolution curricula (K-12) including skill-building activities for effective communication and peaceful problem solving. • Involve students in establishing classroom rules against bullying. • Develop a classroom action plan so that students know what to do when they witness or experience a bullying incident. 23

24. Classroom Prevention and Intervention • Teach cooperation by assigning projects that require cooperation and teamwork. • Take immediate action when bullying is observed or reported. • Confront bullies in private. Engaging the bully in front of peers may enhance the bully’s status and power or lead to further aggression. • Notify parents of both the bully and the target and try to resolve the problems as soon as possible, including referrals to counseling and mediation/peer court when appropriate. • Provide protection for students who may be targeted by bullies. One measure might include creating a buddy system to reduce the risk of attack or ridicule of the targeted student. 24

25. Peer Mediation Programs:Student conflict mediators receive training to learn how to help other students peacefully resolve their differences. Students who need mediation services either voluntarily seek services or are referred by teachers or administrators. Mediation Strategies: Restorative Justice IT IS KEY TO CREATE A SAFE PLACE TO RESOLVE CONFLICTS Peer Courts and Community Courts:This is an alternative to the juvenile justice system. Student volunteers hold hearings about actual incidents that occur in their school or neighborhood. Volunteers work with the victim, the offender, school officials, law enforcement officers and family members to reach a solution that everyone can agree to. If the Respondent completes the contract, then the case is closed without an arrest or suspension. The focus is on putting things right, not on punishment. There are Peer Court programs in San Francisco and the East Bay. 25

26. Student Prevention and Intervention • Avoid engaging in bullying. • Report bullying incidents you witness at school to an adult. • Encourage others to report bullying incidents and help them report if they cannot do it alone. • Support someone who has been hurt by offering kind words in private (not in public to avoid escalation). • Show your disappointment in the behavior by not joining in while someone publicly humiliates, teases, or harasses another and do not participate in the gossip or rumors being spread. 26

27. Parent Prevention and Intervention • Look for signs of victimization (see previous list of signs). • Check in with your child as to how they are feeling and doing in school. • Immediately report the problem in writing to the school and ask them to address a bullying problem (6 month statute of limitations if bias-related). • Include suggestions in your complaint about how to resolve the problem: counseling for bullying, training for staff, separating the students, mediation, etc. • If the school does not promptly respond to your complaint, go to the District and submit a written complaint to the “compliance officer” who receives “Uniform Complaints.” • Keep accurate records of incidents and be specific about the child’s experiences when discussing resolution of the problem with school personnel. • Keep a record of all complaints filed. 27

28. INTERVENTION Implement and publicize complaint system. Train staff on anti-harassment policy and complaint system. De-escalate conflict when it happens. Develop alternatives to suspension, expulsion, and criminalization that promote rehabilitation and community. Provide support services for victim and victim’s family. Monitor problems to prevent future incidents. PREVENTION Understand root causes of violence and conflict. Develop a “Whole Community Prevention Plan,” that includes administrators, teachers, students, family, and community. Establish a shared vision and goal. Integrated curriculum with trained staff. Develop benchmarks for success. Two-Prong Strategy for Success Intervention and Prevention 28

29. Summary • The Problem: Cycle of victimization and criminalization • Two-Prong Strategy: Intervention and Prevention. • Discuss Next Steps: Implementation. 29

30. Questions? Comments? Contact: Angela Chan Staff Attorney, Asian Law Caucus Tel: (415) 848-7719 angelac@asianlawcaucus.org 30