Office for Civil Rights U.S. Department of Education

1. Office for Civil RightsU.S. Department of Education This presentation provides general information and does not represent a complete recitation of the applicable law and OCR policy in this area. It does not address specific issues of compliance because determinations of compliance depend on specific facts on a case-by-case basis. The language used in these slides is approved for the purposes of this presentation only and should not be used for other purposes.

2. Unlawful Harassmentof Students In Education Programs and Activities Office for Civil Rights U.S. Department of Education www.ed.gov/ocr/ phone: [Insert Enforcement Office number] Email: [Insert Enforcement Office e-mail]

3. OCR Activities • Complaint investigation • Compliance reviews • Technical assistance

4. Laws Enforced by OCR • Title VI of the Civil Rights Act of 1964 • (race, color and national origin) • Title IX of the Education Amendments of 1972 (sex) • Section 504 of the Rehabilitation Act of 1973 (disability) • Title II of the Americans with Disabilities Act of 1990 (disability) • The Age Discrimination Act of 1975 (age) • Boy Scouts of America Equal Access Act (patriotic youth groups)

5. Laws We Will Discuss • Race, color, national origin (Title VI) • Sex (Title IX) • Disability (Section 504 & ADA Title II)

6. First Amendment Considerations • The statutes enforced by OCR are intended to protect students from discrimination, not to regulate the content of speech. • OCR’s regulations should not be interpreted in ways that lead to the suppression of protected speech. • OCR interprets its regulations consistent with the requirements of the First Amendment and all actions taken by OCR must comport with the First Amendment.

7. Harassment Based on Race, Color, or National Origin

8. Title VI of the Civil Rights Act of 1964 • No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (42 U.S.C. Section 2000d) • The regulation for Title VI is found at 34 C.F.R. Part 100.

9. OCR’s Investigative Guidance • OCR issued a "Notice of Investigative Guidance" on March 10, 1994, regarding racial incidents and harassment against students. • The Guidance discusses the analysis OCR follows in investigating allegations of: • Different treatment on the basis of race by an official or representative of a school • Harassment of students on the basis of race

10. Different Treatment on the Basis of Race

11. Different Treatment Analysis • Did a teacher, administrator or other school employee treat a student differently than other students under the same circumstances? • Did the treatment occur in the course of authorized or assigned duties or responsibilities of the employee? • Did the treatment deny or limit the ability of the student to participate in or benefit from a school program or activity? • Was the different treatment based on race, color, or national origin?

12. Different Treatment Analysis, cont’d • Do the context and circumstances provide a legitimate, non-discriminatory basis for the different treatment? • Is there information indicating the school’s explanation is really a pretext for discrimination?

13. Recipient Responsibility for Racial Discrimination by Staff • Under the Title VI regulations,a school is responsible for racially discriminating conductby an employee when: • The employee engages in the conduct in the context of carrying out responsibilities for providing education benefits and services; • The conduct denies or limits the student’s ability to participate in or benefit from the program.

14. Hostile Environment Harassment on the Basis of Race

15. Examples of Harassing Conduct • Verbal, written or graphic abuse: • Racial slurs, taunts, jokes, insults, demeaning or stereotyping comments or cartoons, pictures • Threats • Physical Assault

16. What is a Hostile Environment? • A racially hostile environment is created when there is • Harassing conduct based on race or national origin; and • The harassing conduct is sufficiently severe, pervasive or persistent to deny or limit the ability of an individual to participate in, or benefit from the services, activities, or privileges provided by the school.

17. When Can a Hostile Racial Environment Violate Title VI Regulations? A recipient violates the Title VI regulations if: • A racially hostile environment existed; • The recipient had notice of the hostile environment; and • The recipientfailed to respond adequately to redress the hostile environment.

18. Who Can Create a Hostile Environment? • A racially hostile environment for students may be created by employees, by other students, or by third parties (e.g., parents, visitors to the campus).

19. Was the Conduct Severe, Pervasive or Persistent to Deny or Limit Participation? The determination of whether conduct constitutes a hostile environment is based on the totality of the circumstances.

20. Context Nature (e.g. verbal or physical) Scope Frequency Duration Location of incidents Identity, number, and relationships of persons involved Particularized characteristics Incidents outside complaint Generally, the more severe the conduct, the less need to show repeated incidents. Factors to Consider

21. How Does a School Learn of Harassment? Possible sources of notice to the school include: • A student tells a teacher, counselor, playground supervisor, administrator • A parent tells a site or district administrator • A complaint or grievance is filed • A staff member observes harassing behavior • A report is received indirectly, perhaps from members of the community or the media

22. Recipient’s Exercise of Reasonable Care Under the Title VI regulations, the recipient has a responsibility to provide a nondiscriminatory educational environment. A recipient, therefore, must exercise reasonable care to ensure that students are not subject to racial discrimination which includes racial harassment.

23. Recipient’s Exercise of Reasonable Care, cont’d If OCR determines that 1) a racially hostile environment existed AND 2) absent a report, the recipient in the exercise of due care should have known of the harassing conduct Then OCR will find that the recipient had sufficient notice to trigger its obligations under the Title VI regulations to redress the hostile environment.

24. Recipient’s Response • Once a school has notice of a racially hostile environment, it has a legal duty to take reasonable steps to eliminate it. • OCR will evaluate the appropriateness of the responsive action.

25. At What Does OCR Look to Evaluate a School’s Response? In evaluating the school’s response, OCR examines: • Reasonableness, timeliness, effectiveness • Whether the response was tailored to redress the specific problems experienced in the recipient’s programs and activities. • Whether the response was reasonably calculated to prevent recurrence and ensure participants are not restricted in their participation or benefits as a result of the hostile environment.

26. At What Does OCR Look to Evaluate a School’s Response? OCR will: • Examine disciplinary policies, grievance policies, and any applicable anti-harassment policies. • Determine whether the school’s response was consistent with any established institutional policies or with responsive action taken in similar incidents.

27. Considerations When Responding • Prevent retaliation • Confidentiality concerns

28. Harassment Based on Sex

29. Title IX • Title IX prohibits sex-based discrimination in education programs and activities receiving federal financial assistance. • Title IX applies to all public and private educational institutions receiving federal financial assistance. • “Education programs and activities” includes all of a school’s operations. • Harassment can be a form of sex discrimination covered by Title IX.

30. Supreme Court Decisions • Recent Supreme Court decisions dealing with Title IX and sexual harassment of students in private lawsuits for monetary damages: • Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998). • Davis v. Monroe County Bd. Of Educ., 526 U.S. 629 (1999).

31. OCR Enforcement • This presentation discusses standards applicable to OCR’s enforcement of compliance in cases raising sexual harassment issues. • It does not address standards applicable to private Title IX lawsuits for monetary damages.

32. Sexual Harassment • Conduct of a sexual nature; • Is unwelcome, and • Denies or limits a student’s ability to participate in or receive the benefits, services or opportunities of the recipient’s program.

33. Conduct of a Sexual Nature • Determining whether conduct is of a sexual nature is very fact specific, but examples may include: • Unwelcome sexual advances • Requests for sexual favors • Comments about an individual’s body, sexual activity or sexual attractiveness • Sexually suggestive touching, leering, gestures, sounds, comments, or displays of sexually suggestive objects

34. Conduct of a Sexual Nature, cont’d. • Conduct that is also criminal in nature such as: • Rape • Sexual assault • Sexually motivated stalking

35. Harassment by Person of Same Sex • Sexual harassment is prohibited regardless of the sex of the harasser or the victim, i.e., sexual harassment may occur if the harasser and the victim are the same sex. • For Title IX to apply, the discrimination must be based on sex, even where the harasser and victim are the same sex.

36. Sexual Harassment • Title IX does not prohibit discrimination on the basis of sexual orientation. • Gay and lesbian students are protected from sexual harassment (i.e. harassment based on sex) the same as other students.

37. Unwelcome Sexual Conduct • In order to constitute sexual harassment, the conduct must be unwelcome.

38. Employee Harassment • The recipient is responsible for sexually harassing conduct by an employee when: • The employee engages in the conduct in the context of carrying out responsibilities for providing benefits and services; and • The harassment denies or limits the student’s ability to participate in or benefit from the program.

39. Employee Harassment, cont’d • An employee (acting in the context of his/her responsibilities): • conditions the provision of an aid, benefit, or service that an employee is responsible for providing on a student’s submission to sexual conduct, or • bases an educational decision on thestudent’s submission to unwelcome conduct of a sexual nature

40. Employee Harassment, cont’dHostile Environment • Unwelcome conduct based on sex and of a sexual nature by an employee (acting in the context of his/her responsibilities), that is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the recipient’s program.

41. Employee Harassment, cont’d • In cases of harassment by employees in the context of their responsibilities to provide aid, benefits, or services to students, a school is responsible for remedying the effects of the harassment on the victim, ending the harassment, and preventing its recurrence.

42. Hostile Environment Created by Peer or Third Party • A hostile environment might also be created by another student, an outside or third party, or an employee acting outside the context of his/her responsibilities for providing aid, benefits, or services to students. • In these cases, a school has a duty, upon notice of harassment, to take prompt and effective action to stop the harassment and prevent its recurrence.

43. Denies or Limits • To determine whether the conduct denies or limits benefits or services, consider: • The conduct from both a subjective and objective perspective • Whether conduct is sufficiently serious • All relevant circumstances

44. Denies or Limits, cont’d • How and to what extent the conduct affected the student’s education • Type, frequency and duration of the conduct

45. Denies or Limits, cont’d • Other incidents of harassment • Number of students involved as harassers, as victims • Relationship/roles of the parties • Location of incidents

46. School’s Response • Once a school has notice of possible sexual harassment, it should • take immediate and appropriate steps to investigate or otherwise determine what occurred; and • take prompt and effective steps reasonable calculated to end any harassment. • What constitutes a reasonable response to information about possible sexual harassment will differ depending on the circumstances.

47. School’s Responsibilities • If the school determines sexual harassment has occurred, it should take reasonable, timely, age-appropriate, and effective corrective action, including steps tailored to the specific situation.

48. Responsibilities, cont’d • Appropriate steps should be taken to: • End the harassment • Eliminate any hostile environment that has been created • In some situations, remedy the effects of harassment • Prevent any further harassment • Prevent retaliatory actions

49. Confidentiality • In any investigation or proceeding, the names of the parties and the allegations should be kept confidential to the greatest extent possible. • If student asks that name not be used, the school should take all reasonable steps to investigate and respond to the complaint consistent with that request as long as doing so does not preclude the school from responding effectively to the harassment and preventing harassment of other students.

50. Possible Remedies • Possible remedial measures might include: • Counseling or disciplining the harasser • Personal and/or academic remedies for the victim • Development of new policies or procedures