Public School Civil Rights Liability: Protecting Students from Discriminatory Harassment and Abuse
Educating students is not the only responsibility of school districts. Federal and state laws require schools to be proactive about protecting the civil rights of their students and to foster a positive learning environment free from discriminatory harassment. Several federal laws — Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, and Title IX of the Education Amendments Act of 1972 — define the right of students to be educated in an environment free of discriminatory harassment based on race, national origin, disability, and gender. When discriminatory harassment or abuse are serious and persistent enough to create a hostile environment that interferes with a student’s right to an education, and when school staff know of such behavior and encourage, tolerate, do not adequately address, or ignore it, they are acting deliberately indifferent — in violation of federal laws. These violations have the potential to result in liability for the district.
What Constitutes Discriminatory Harassment in Schools
Discriminatory harassment may take many forms: verbal acts and name calling; nonverbal behavior, such as graphic and written statements; conduct that is physically threatening, harmful, or humiliating, among others. When the school is aware of but indifferent to this conduct, a civil rights lawsuit may arise. Consider these examples from our own practice: an African-American student who claims that his school failed to respond appropriately to being called racially inappropriate names, or a Jewish student who claims discrimination after being exposed to swastikas on the wall in the locker room. A school may also face liability if it perpetrates potentially discriminatory harassment, such as when a student with a disability is habitually restrained and secluded or excluded from attending a field trip. Physical and sexual abuse can create a hostile learning environment. So can the spread of rumors, such as when the school is abuzz about a female student said to be a slut who sleeps with her coach.
When the harassment or abuse is in plain sight, widespread, or well known to students and staff — when it takes place routinely in school hallways, during classes, during recess, during lunch, or on a school bus — its signs are obvious enough to put the school district on notice of actionable harassment that requires an immediate response. In other cases, a district may become aware of a pattern of harassment after a single incident triggers an investigation that leads to the discovery of additional incidents that, together, may promote a hostile environment. In all cases, school districts must widely publicize adequate notice of their policies, procedures, and practices prohibiting harassment and for reporting, investigating, and resolving complaints.
School districts have a legal responsibility not only to respond appropriately to discriminatory harassment, but to be proactive in preventing harassment and discriminatory conduct from occurring through practices that comply with standards governing student civil rights and discrimination. School districts are required to provide training to the larger school community to ensure that all students, their families, and school staff members can recognize harassment and know how to respond to and report it. School districts with 15 or more employees must designate a Title IX and Section 504 coordinator to disseminate information to parents, provide staff with training and information about harassment policies, and ensure that the district’s practices and procedures comply with state and federal laws. This includes appropriately responding to parent complaints and ensuring that appropriate investigations take place and are documented.
Office of Civil Rights Standards for Protecting Students from Discriminatory Harassment
Discriminatory harassment may take many forms: verbal acts and name calling; nonverbal behavior, such as graphic and written statements; conduct that is physically threatening, harmful, or humiliating, among others. When the school is aware of but indifferent to this conduct, a civil rights lawsuit may arise. Consider these examples from our own practice: an African-American student who claims that his school failed to respond appropriately to his being called racially inappropriate names, or a Jewish student who claims discrimination after being exposed to swastikas on the wall in the locker room. A school may also face liability if it perpetrates potentially discriminatory harassment, such as when a student with a disability is habitually restrained and secluded or excluded from attending a field trip. Physical and sexual abuse can create a hostile learning environment. So can the spread of rumors, such as when the school is abuzz about a female student said to be a slut who sleeps with her coach.
When the harassment or abuse is in plain sight, widespread, or well known to students and staff — when it takes place routinely in school hallways, during classes, during recess, during lunch, or on a school bus — its signs are obvious enough to put the school district on notice of actionable harassment that requires an immediate response. In other cases, a district may become aware of a pattern of harassment after a single incident triggers an investigation that leads to the discovery of additional incidents that, together, may promote a hostile environment. In all cases, school districts must widely publicize adequate notice of their policies, procedures, and practices prohibiting harassment and for reporting, investigating, and resolving complaints.
School districts have a legal responsibility not only to respond appropriately to discriminatory harassment, but to be proactive in preventing harassment and discriminatory conduct from occurring through practices that comply with standards governing student civil rights and discrimination. School districts are required to provide training to the larger school community to ensure that all students, their families, and school staff members can recognize harassment and know how to respond to and report it. School districts with 15 or more employees must designate a Title IX and Section 504 coordinator to disseminate information to parents, provide staff with training and information about harassment policies, and ensure that the district’s practices and procedures comply with state and federal laws. This includes appropriately responding to parent complaints and ensuring that appropriate investigations take place and are documented.
Office of Civil Rights Standards for Protecting Students from Discriminatory Harassment
The U.S. Department of Education’s Office for Civil Rights (OCR) ensures equal access to education through enforcement of student civil rights laws, including Title VI, Title II, and Title IX. Through guidance documents, policy statements, and other communications, OCR informs school districts and educational institutions that receive federal funds of their legal obligations related to the protection of students’ civil rights. These documents are intended to assist school districts in complying with the law. When OCR believes that “precedent-setting cases in the courts clarify specific elements of application of the law,” the office issues a “Dear Colleague” letter and supplementary materials to help K–12 school districts and higher-education institutions understand how those court decisions affect them. OCR communications such as these provide guidance to institutions and school districts for adjusting their own policies and practices to enhance civil rights protections and avoid civil rights violations.
School administrators are bound by both the professional standard of care within the field of education and the standards distributed by OCR derived from its legal interpretations. On the basis of my education, training, and professional experience, the community of education administration and supervision professionals recognizes the practical methods, examples, and other information in OCR’s guidance documents as the marker for what is reasonable in terms of protecting students from discrimination and responding to complaints of discriminatory harassment and other forms of discrimination in a school setting.
OCR guidance documents provide clear and unambiguous notice to school districts and other educational institutions about their obligations to protect students from sexual or disability-based discriminatory harassment, restraint and seclusion, and harassing and abusive conduct based on race or national origin. When a student experiences discriminatory harassment, he or she may no longer have equal access to education because of the school environment created by such behavior. The professional standard of care, including OCR’s standards and requirements under Title IX, Title VI, and Title II, requires that school districts effectively protect students from harassing and discriminatory conduct by:
- Developing policies and procedures meant to protect students from discrimination;
- Providing training to students, parents, and employees so that they know to report discrimination or harassment to appropriate school officials, and so that employees with the authority to address discrimination or harassment know how to properly respond;
- Publishing and widely disseminating a notice of nondiscrimination, and adopting and publishing clear grievance procedures that are easily accessible to parents, students, and school employees;
- Designating and appropriately training an affirmative action and/or compliance officer, such as a Title IX or Title II coordinator responsible for participating in all investigations of discriminatory harassment, periodically assessing the district’s climate, and reviewing and ensuring the appropriateness of the district’s discriminatory harassment policies and procedures;
- Notifying all students and employees of the affirmative action and/or compliance officer’s name, title, and contact information, and publishing this information in all policies, regulations, student/staff handbooks, and other school publications;
- Taking immediate action to investigate and eliminate known or reported discrimination or harassment. Schools that know or reasonably should know of discrimination that creates a hostile environment — not only for the victim but also for other students who witness acts of discriminatory harassment —should take steps to prevent its recurrence and address its effects;
- Recognizing that police investigations DO NOT satisfy the school’s obligation to investigate all instances of conduct that could potentially be discriminatory harassment because whether a complaint is filed or the school learned of the conduct through indirect ways, the school has a responsibility to investigate all reports; and,
- Regularly examining the culture of the school community through the use of surveys, interviews, and other means to determine whether there is a need to address discriminatory behavior that may violate students’ rights.
Avoiding Costly Civil Rights Litigation Against Schools
For schools, one key to protecting students’ civil rights lies in having policies and procedures that are accessible and that clearly reflect laws and OCR guidance. Having no policy, an inadequate policy that doesn’t address legal requirements, or a policy that staff and students are not aware of or that is not enforced is clearly a breach of the professional standard of care. A school that does not understand its duty to protect students or address sexual, racial, and other forms of discriminatory harassment of students by staff or their peers demonstrates a breach of the professional standard of care. This breach, and the resulting harm to a student, will strengthen a plaintiff’s claim.
Having clear and strong policies and administrative procedures, adequate staff and student training, a quick response to any observed or reported violation of a student’s rights, and taking a hard look at the school culture will help to protect a school from costly litigation. Schools and personnel in the hierarchy of vicarious liability will be held strictly accountable for discriminatory harassment against a student when someone who is in a position to take remedial action knows of the behavior but exhibits deliberate indifference to it. If the school complies with the professional standard of care when faced with a claim that any of these laws were violated, the school will be in a stronger position to defend itself.
For additional information regarding sexual harassment prohibited under Title IX please consider reading the following articles:
Title IX and Sexual Abuse in K – 12 Schools
Title IX and Sexual Violence at Colleges and Universities
