**A r c h i v e d   I n f o r m a t i o n**

*Protecting Students from Harassment and Hate Crime: A Guide for Schools - January 1999*

----

# Notes

Discrimination based on race, color or national origin in programs or activities receiving federal financial assistance is prohibited by Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; discrimination based on sex or gender in educational programs or activities receiving such assistance is prohibited by Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 
et
seq
. Discrimination based on disability in programs or activities receiving federal financial assistance is prohibited by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and, as to all public entities, by Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12134. Regulations issued by the United States Department of Education implementing Title VI, Title IX, and Section 504, respectively, can be found at 34 C.F.R. Part 100, 34 C.F.R. Part 106, and 34 C.F.R. Part 104. These regulations can also be found through 
OCR's website
. For regulations implementing Title II of the ADA, see 28 C.F.R. Part 35.  
There is an increasing awareness among school officials of the frequency and severity of harassment of students who are, or are perceived to be, gay or lesbian. Schools should consider whether there is a need to include harassment based expressly on sexual orientation in their anti-harassment programs. Harassment on the basis of sexual orientation may violate state discrimination laws or the U.S. Constitution. As described in 
Harassment Based on Sexual Orientation,
a recent holding of the Seventh Circuit Court of Appeals, 
Nabozny v. Podlesny
, 92 F.3d 446 (7th Cir. 1996), allowed a lawsuit for damages under the United States Constitution against a school district where school officials allegedly failed to protect a gay student from harassment to the same extent as other students because of his sex and sexual orientation. Of course, gay and lesbian students can also be targets of sexual harassment. See 
Sexual Harassment of Gay and Lesbian Students
 for a discussion of sexual harassment of gay and lesbian students. See also Part II of this Guide, 
Addressing Hate Crime
, for a discussion of state and federal criminal laws that may be relevant to certain kinds of bias motivated incidents.  
See surveys cited in "Abolishing Harassment," 
Equity Coalition
, Programs for Educational Opportunity, University of Michigan School of Education (Spring 1996).  
OCR has published in the Federal Register two guidance documents regarding illegal harassment. These are the "
Office for Civil Rights; Sexual Harassment Guidance; Harassment of Students by School Employees, Other Students, or Third Parties
; Notice," 62 Federal Register 12034 (March 13, 1997), referred to herein as OCR's Sexual Harassment Guidance; and the 
"Racial Incidents and Harassment Against Students at Educational Institutions; Investigative Guidance
; Notice," 59 Federal Register 11448 (March 10, 1994), referred to herein as OCR's Racial Harassment Guidance. Both documents can be found through 
OCR's website
.  
While federal anti-discrimination laws make school districts responsible for remedying harassment of students, these laws do not specifically require written policies specifically addressing harassment. However, the adoption, dissemination, and enforcement of such policies is likely to deter harassment and will help to show that the district does not tolerate or condone such harassment. In addition, federal regulations promulgated under Title IX, Section 504, and Title II of the Americans with Disabilities Act (ADA) specifically require schools to regularly notify students, parents, and employees that the school does not discriminate on the basis of sex and disability, to implement and disseminate prompt and equitable complaint procedures for handling allegations of discrimination, and to designate an employee responsible for coordinating compliance with these laws. Discrimination under these laws includes harassment as outlined in this Guide.  
Privacy laws may restrict the school from releasing the names of the persons involved in some incidents of harassment. See 
Part II: Identifying and Responding to Incidents of Harassment
 and 
Part II: Formal Complaint/Grievence Procedures
 and notes 
39
 and 
42
 for information on privacy provisions.  
See 34 C.F.R. 106.8, 34 C.F.R. 104.7, and 28 C.F.R. 35.107 regarding federal requirements for complaint procedures.  
See 
Requests for Confidentiality
 in Part II: Identifying and Responding to Incidents of Harassment for further discussion of the extent to which schools should honor a request for confidentiality by the victim of harassment.  
For further discussion of the restrictions on information that may be released to a complainant, see 
Part II: Identifying and Responding to Incidents of Harassment
 and 
Part II: Formal Complaint/Grievence Procedures
 in this Guide.  
See Deborah Byrnes, " 'Teacher, they called me a __________!', Confronting Prejudice and Discrimination in the Classroom," (1995), a publication of the Utah State Office of Education and the Anti-Defamation League.  
See 34 C.F.R. 104.7 and 34 C.F.R. 106.8, requiring the designation of employees to coordinate compliance with Section 504 and Title IX respectively. A similar requirement is part of the regulations implementing the Americans with Disabilities Act at 28 C.F.R. 35.107.  
See 18 U.S.C. § 245, prohibiting interference with federally protected activities, and 28 U.S.C. § 994, containing a penalty enhancement provision.  
See the model Memorandum of Understanding, reprinted at 
Appendix A
[pdf format]
, recommended by the Office of the New Jersey Attorney General, to promote cooperation among local districts, county prosecutors, and local police departments in investigating suspected hate crimes and hate-motivated graffiti and protecting students from the effects of such incidents.  
See 
Appendix B
[pdf format]
, "Erasing Hate -- A Guide to Your Civil Rights in School" for an example of the array of governmental and non-governmental sources of assistance available to students.  
These factors for determining when graffiti should be preserved for law enforcement investigations are used by the University of Massachusetts - Amherst in accordance with Massachusetts law.  
See 
note 5
, explaining the treatment of anti-harassment policies under federal civil rights laws.  
All references to harassment of employees have been omitted from this example and from all of the policy excerpts cited in this Guide.  
On September 29, 1998, the United States Supreme Court indicated it would hear the case of 
Davis v. Monroe County Board of Educ.
, 120 F.3d 1390 (11th Cir. 1997), 
cert. granted in part,
 66 U.S L.W. 3387 (U.S.) (NO. 97-843), to decide whether, under Title IX, school districts are liable for failing to respond to complaints of harassment of students by other students. Currently, the federal courts have reached different conclusions on this issue. In 
Davis
, the Eleventh Circuit (which covers Alabama, Georgia, and Florida) had held that school districts are not liable under Title IX in instances of peer harassment. The Court of Appeals for the Fifth Circuit (covering Texas, Louisiana and Mississippi)) has also held that Title IX does not impose liability on a school district for peer hostile environment harassment absent allegations that the school district itself discriminated based on sex, e.g., by correcting harassment of boys but not girls. 
Rowinsky v. Bryan Indep. Sch. Dist.
, 80 F.3d 1006 (5th Cir. 1996).  
On the other hand, other courts of appeal have held that peer harassment is covered by Title IX. In *Doe v. University of Illinois*, 138 F.3d 653 (7th Cir. 1998), *petition for cert. filed,*67 U.S.L.W. 3083 (July 13, 1998) (No. 98-126), the Court of Appeals for the Seventh Circuit (covering Illinois, Wisconsin, and Indiana), held that a school could be held liable for the harassment of a student by another student when the school knew about the harassment but failed to take meaningful action "plausibly directed to putting an end" to the harassment. 138 F.3d 653, 667.  
The Court of Appeals for the Ninth Circuit (covering Montana, Idaho, Washington, Oregon, Nevada, California, and Arizona) has also held that schools have a duty under Title IX to take reasonable steps to remedy a known hostile environment created by peer harassment. *Oona R.-S.- by Kate S. v. McCaffrey*, 143 F.3d 473 (1998). In *Morse v. Regents of the University of Colorado*, 154 F.3d 1124 (1998), the 10th Circuit (covering Wyoming, Utah, Colorado, New Mexico, Kansas, and Oklahoma) held that the defendant university could be liable for the harm suffered as a result of sexual harassment and hostile environment created by a fellow student (who exercised some measure of authority over plaintiffs) because the defendant knew of the harassment and did not respond adequately. In addition, a panel of the Fourth Circuit had held that a public university was liable under Title IX for a student-on-student sexual assault. However, the full Fourth Circuit indicated it would further consider the issue. *Brzonkala v. Virginia Polytechnic Inst.*, 132 F.3d 949 (4th Cir. 1997), *rehearing en banc granted, opinion vacated*(4th Cir. Feb. 5, 1998). The Fourth Circuit includes Virginia, West Virginia, Maryland, North Carolina, and South Carolina.  
Since the Supreme Court is likely to issue an opinion resolving the conflicting interpretations of the lower federal courts, school districts should consult their legal counsel regarding their potential liability under the civil rights statutes discussed in this Guide with respect to peer harassment. Furthermore, districts in the states covered by the Fifth and Eleventh Circuits are not precluded from adopting policies and procedures to protect students from peer harassment, and this Guide presents effective methods for doing so. Some of the states in the Fifth and Eleventh Circuits specifically prohibit sexual harassment in schools.  
The question of harassment by persons who are neither students nor employees of the school is discussed in the OCR's Sexual Harassment Guidance at 62 Federal Register 12040.  
See OCR's Guidance on Racial Incidents, applying Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and its implementing regulation, 34 C.F.R. Part 100.  
Language in the Model Policy of the Vermont Board of Education states: "Harassment on the basis of national origin is unwelcome verbal, written, or physical conduct, directed at the characteristics of a person's national origin, such as negative comments regarding surnames, manner of speaking, customs, language or ethnic slurs."  
Other samples of language defining racial and national origin harassment are contained in school policies in 
Appendix A
[pdf format]
.  
The West Virginia Rules also define "sexual violence" as "a physical act of aggression or force or the threat of force" to accomplish intimate physical contact.  
For further discussion regarding same sex harassment under Title IX, see OCR's Sexual Harassment Guidance, 62 Federal Register 12039 and corresponding footnotes. After the Guidance was published, the United States Supreme Court confirmed that workplace harassment can violate the sex discrimination provision of Title VII of the Civil Rights Act when the harasser and harassed employee are of the same sex. 
Oncale v. Sundowner Offshore Services, Inc.
, 118 S.Ct. 998 (1998).  
See OCR's Sexual Harassment Guidance, 62 Federal Register 12039, for a discussion of sexual harassment of gay and lesbian students.  
See OCR's Sexual Harassment Guidance, 62 Federal Register 12040, for a discussion of the concept of welcomeness as applied to sexual conduct between school employees and students.  
For an example of language barring sexual conduct between employees and students, see the Rules of the West Virginia Board of Education stating: "Amorous relationships between staff members and students are prohibited and staff members violating this prohibition shall be subject to . . . [disciplinary action]."  
See OCR's Sexual Harassment Guidance, 62 Federal Register 12034, 12038, stating that Title IX's prohibition against sexual harassment does not extend to legitimate nonsexual touching or other nonsexual conduct, e.g., a high school athletic coach hugging a student who has made a goal.  
See 
Guckenberger v. Boston University
, 957 F. Supp. 306, 313-316 (D.Mass. 1997), holding that the Americans with Disabilities Act and Section 504 proscribe harassment based on disability, when such harassment has the purpose or effect of unreasonably interfering with a student's performance or of creating an intimidating, hostile or offensive learning environment. See also 
Doe v. Marshall
, 882 F. Supp. 1504, 1507 (E.D. Penn. 1995), holding that harassment based on disability by a professor against a college student could violate Section 504 and the ADA. OCR has investigated numerous complaints of disability related harassment.  
The State of Vermont's Model Policy describes disability harassment as including: "conduct . . . directed at the characteristics of a person's disabling condition, such as imitating manner of speech or movement, or interference with necessary equipment."  
OCR's Sexual Harassment Guidance, 62 Federal Register 12034, 12041-42, lists the following factors to consider in evaluating whether acts of harassment are sufficiently severe, persistent or pervasive to establish a hostile environment: the age of the victim(s) and, where relevant, of the harasser; the identity and relationship of the alleged harasser and the target of the harassment; the degree to which the conduct affected one or more students' education; the number of harassers and the number of victims; the nature and type of harassment, including the extent of hostility shown; the frequency and duration of the conduct; the location or situation in which the incident occurred, particularly whether the incident occurred in a captive, confined, or enclosed environment; the size of the school and the number of persons aware of the incident; the occurrence of other harassing incidents at the school or in the school-related activity and whether or not the same individuals were involved.  
Guidelines on religious expression in public schools were issued by the U.S. Department of Education in June 1998. These are available at 
www.ed.gov/Speeches/08-1995/religion.html
.  
See 
Nabozny v. Podlesny
, 92 F.3d 446 (7th Cir. 1996).  
For example, the State of Vermont prohibits harassment based on sexual orientation. The example of harassing behavior based on sexual orientation given in the Vermont Department of Education's Model Policy is "unwelcome verbal, written, or physical conduct, directed at the characteristics of a person's sexual orientation, such as negative name calling and imitating behaviors."  
The regulations implementing Title IX, Section 504, and Title II of the ADA require notice of the individual responsible for coordinating compliance, including receiving complaints.  
Retaliation is prohibited by the Title VI regulation at 34 C.F.R. 100.7(e). The regulations implementing Title IX and Section 504 have incorporated this prohibition against retaliation. See 34 C.F.R. 106.71, and 34 C.F.R. 104.61.  
See OCR's Sexual Harassment Guidance, 62 Federal Register 12045 - 12046, for discussion of the First Amendment. In addition, some of the cases that address restrictions on student speech and expression in elementary and secondary schools include 
Hazelwood School District v. Kuhlmeier
, 484 U.S. 260, 266 (1988) (school restrictions on high school newspaper); 
Bethel School District No. 403 v. Fraser
, 478 U.S. 675, 682, 683 (1986) (indecent speech at school assembly); 
Tinker v. Des Moines Independent Community School District
, 393 U.S. 503, 506 (1969) (student armbands to express an opinion on national policy); 
Phillips v. Anderson County School Dist. Five
, 987 F. Supp. 488, 493 (D.S.C. 1997) (restrictions on student clothing displaying or wearing the Confederate flag); and 
Denno v. School Bd. of Volusia County
, 959 F. Supp. 1481, 1485 (M.D. Fla. 1997) (display of Confederate flag).  
See, e.g., "Tune in to Your Rights . . . A Guide for Teenagers about Turning Off Sexual Harassment," published by the Programs for Educational Opportunity, University of Michigan in 1985, which describes some feelings of adolescents experiencing sexual harassment.  
FERPA, 20 U.S.C. § 1232g, will apply where information about harassment is contained in an educational record. See OCR's Sexual Harassment Guidance, 62 Federal Register 12037 and 12043, for a discussion of confidentiality requests. See also 62 Federal Register 12050, note 80, describing the application of FERPA in this context.  
See the Individuals with Disabilities Education Act, as amended in 1997, 20 U.S.C. 1400. OCR's policy interpreting Section 504 also specifies prerequisites to the use of certain disciplinary measures with students with disabilities. Anti-harassment policies can remind school officials of the requirements applicable to the discipline of students with disabilities. For example, the State of Vermont's Model Anti-Harassment Policy provides: "Action taken for violation of this policy shall be consistent with the requirements of any applicable collective bargaining agreement, Supervisory Union, and/or School District policy, state and federal law, including but not limited to the due process protections for students with disabilities."  
When investigating and remedying harassment, school districts need to pay attention to the procedural rights of the alleged harasser. See 
Due Process Rights of the Alleged Harasser
 for information in this regard.  
The U.S. Department of Education interprets the Family Educational Rights and Privacy Act (FERPA) to prohibit elementary and secondary school districts from releasing information regarding any disciplinary actions taken against students who are found to have harassed other students except where the action directly affects another student, such as an order requiring the harasser not to have contact with the target. See OCR's Sexual Harassment Guidance at 62 Federal Register 12037-12038. Although FERPA does not apply to release of records pertaining to staff who have been found to have harassed students, state laws may be applicable to such records.  
In this regard the Rules of the West Virginia Board of Education require: "The head of the agency or the agency's governing board shall also initiate such other action as is appropriate to ease tensions and to affirm the values of respect and understanding. . . ."  
For an extensive discussion of grievance procedures to address complaints of discrimination, see "Title IX Grievance Procedures: An Introductory Manual," published by U.S. Department of Education, Office for Civil Rights (2nd ed. 1987). OCR's Sexual Harassment Guidance, at 62 Federal Register 12034, 12044 - 12045, contains specific guidance regarding necessary components of a complaint or grievance procedure. See 34 C.F.R. 106.8, 34 C.F.R. 104.7, and 28 C.F.R. 35.107.  
See 34 C.F.R. 106.8, 34 C.F.R. 104.7, and 28 C.F.R. 35.107. OCR's Sexual Harassment Guidance, at 62 Federal Register 12034, 12044 - 12045, contains specific guidance regarding necessary components of a complaint or grievance procedure.  
See the regulations implementing the Americans with Disabilities Act (ADA) of 1990, at 28 C.F.R. 35.160(a), and Section 504 of the Rehabilitation Act of 1973, at 34 C.F.R. Part 104. Under the ADA, a public entity, such as a public school, is to furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate. 28 C.F.R. 35.160(b)(1). In determining what type of auxiliary aid or service is necessary, the ADA requires a public entity to give primary consideration to the requests of the individual involved. 28 C.F.R. 35.160(b)(2). See also the regulations implementing Title III of the ADA, which are applicable to public accommodations, including many private schools, requiring similar efforts to accommodate persons with disabilities.  
An example of a checklist for reviewing discrimination grievance procedures can be found in 
Appendix B
[pdf format]
 of this Guide.  
See 
note 46
 for specific citations to the ADA and Section 504 regulations applicable to required auxiliary aids and services to persons with disabilities.  
See 
Appendix B
[pdf format]
 for specific information that may be helpful for training persons appointed to investigate harassment complaints.  
OCR's Sexual Harassment Guidance at 62 Federal Register 12045 and 12050, footnote 80, contains a discussion of the procedural rights of persons accused of harassment.  
See notes 
39
 and 
42
 regarding the effect of privacy restrictions.  
The Model Anti-harassment Policy of the State of Vermont, Department of Education, recommends a 14-day time frame for investigation of harassment complaints.  
For regulations implementing FERPA, 20 U.S.C. § 1232g, see 34 C.F.R. Part 99.  
See notes 
39
 and 
42
 regarding the effect of privacy restrictions.  
See Robert Croninger, "Racial Harassment in Education," 
Equity Coalition
, Programs for Educational Opportunity, University of Michigan (Spring 1996).  
For a detailed description of nearly 20 student leadership and peer education programs intended to strengthen relationships among students of different races and backgrounds and to deter sex discrimination and harassment, see the Summer 1998 issue of NCSEE News, a publication of the National Coalition for Sex Equity in Education.  
Threatening or discriminatory graffiti should be photographed to assist in identifying the perpetrators and determining if hate groups may be involved.  
For example, the Howard County Public Schools in Maryland trains teachers and students in identifying "signal incidents" as "teachable moments."  
See 
note 11
 for the specific regulations requiring appointment of a compliance coordinator under Title IX, Section 504, and the ADA.  
This definition comes from "Healing the Hate - A National Bias Crime Prevention Curriculum for Middle Schools," published by the Education Development Center, Inc., with funds from the Office of Juvenile Justice and Delinquency Prevention (1997). See also "A Policymaker's Guide to Hate Crimes," published by the Bureau of Justice Assistance, U.S. Department of Justice (March 1997).  
Data compiled by the Anti-Defamation League. See also earlier figures published in "A Policymaker's Guide to Hate Crimes," Bureau of Justice Assistance, U.S. Department of Justice (March 1997).  
See Bulletin No. 36, Attachment B, of the Los Angeles Unified Public School District (April 24, 1995).  
See notes 
13
 and 
15
 for the sources of this information regarding preservation of evidence.  
These components are mentioned in "Not in Our School, a Rapid Response Guide for Minnesota Schools to Incidents of Hate-Based Violence," from the Office of the Minnesota Attorney General.  
The Community Relations Service of the U.S. Department of Justice and the other agencies listed in 
Appendix D
[pdf format]
 may be able to mediate volatile conflicts.  
For additional information on reporting provisions, see "A Policymaker's Guide to Hate Crimes," Bureau of Justice Assistance, U.S. Department of Justice (March 1997).  
Data compiled by the Civil Rights Division of the Massachusetts Office of the Attorney General and the Anti-Defamation League.  
See New Jersey's model "Memorandum of Understanding Between Education and Law Enforcement Officials" (June 1993) at 
Appendix A
[pdf format]
. 
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