Bullying and Harassment in Schools

Bullying and Harassment in Schools Materials for Use with DVD Program Employee Audience Texas Association of School Boards Legal Services 512.467.3610 800.580.5345 legal@tasb.org

Bullying and Harassment in Schools Part One: Harassment Committed by Employees A. Harassment of Employees by Other Employees Why do I need to know about harassment? Harassment can cost you your job. Employees who harass their coworkers can be fired. They can also be nonrenewed, reassigned, suspended, or reprimanded. You could be sued. Employees who harass their coworkers can be sued by their victims under state law and be held liable for monetary damages. Harassment is bad for the district. Harassment lowers productivity. It leads to time-consuming, difficult investigations and increased costs, like higher insurance premiums and litigation expenses. What is sexual harassment? Sexual harassment of an employee is defined as unwelcome sexual advances; requests for sexual favors; sexually motivated physical, verbal, or nonverbal conduct; or other conduct or communication of a sexual nature when: 1. Submission to the conduct is either explicitly or implicitly a condition of an employee s employment, or when submission to or rejection of the conduct is the basis for an employment action affecting the employee; or 2. The conduct is so severe, persistent, or pervasive that it has the purpose or effect of unreasonably interfering with the employee s work performance or creates an intimidating, threatening, hostile, or offensive work environment. Whether or not behavior rises to the level of sexual harassment is judged from the perspective of a reasonable person. 1

Are there different kinds of sexual harassment? Two kinds of sexual harassment can occur. Quid pro quo harassment is committed by supervisors who harass their employees. Hostile environment harassment is committed when any employee creates a sexually offensive workplace environment. What is quid pro quo harassment? Quid pro quo literally means something for something. This kind of harassment occurs when a supervisor offers a subordinate a benefit, such as a raise or promotion, in exchange for sexual favors. Quid pro quo harassment also happens when a supervisor punishes a subordinate for rejecting sexual advances, for example, by firing or demoting the employee. The fact that an employee submitted to a boss s advances does not mean that the advances did not constitute sexual harassment. If the advances were not welcome, but the employee went along with them because they came from the boss, then sexual harassment still occurred. What is hostile environment harassment? Hostile environment harassment occurs when one or more supervisors or coworkers create an atmosphere that unreasonably interferes with an employee s work performance or create an intimidating, hostile, or offensive environment. In other words, supervisors or coworkers engage in hostile environment harassment if what they do or say makes another employee so uncomfortable that the employee cannot do his or her job. Coworkers and supervisors also engage in hostile environment harassment by being intimidating, hostile, or offensive. Whether conduct is abusive or hostile depends on the circumstances: (1) How frequent is the conduct? (2) How severe is the conduct? (3) Is the conduct threatening or humiliating? (4) Would the conduct interfere with a reasonable person s work performance? Generally, for conduct to rise to the level of sexual harassment, it must be severe or persistent. Can women harass men? Yes, although it is not as common as harassment done by men against women. Can a person be sexually harassed by a member of the same sex? Yes. An employee can be sexually harassed by a member of the same sex. The harassment need not be based on sexual attraction but must be motivated by the sex of the victim. The harassment has to meet the same high standard as other instances of sexual harassment. In same-sex harassment, as in other sexual harassment cases, whether or not behavior rises to the level of sexual harassment is judged from the perspective of a reasonable person. 2

Can I get fired for flirting or telling jokes? No, not if the joking does not get out of hand. The law does not prohibit harmless differences in the way men and women interact. Courts punish only behavior that is so objectively offensive that it changes an employee s working conditions. Simply saying something that might offend a fellow employee will not alter that employee s conditions of work. Simple teasing and offhand comments will not amount to sexual harassment. However, severe, sexually discriminatory verbal intimidation, ridicule, or insults may be sexual harassment. Graphic sexual statements, such as dirty jokes or propositions, can create a hostile environment. In some cases, threats or unwanted physical contact can be so severe that one incident alone creates a hostile environment. How will I know if I am crossing the line? The U.S. Supreme Court has admitted that there is no mathematically precise test to determine when conduct constitutes sexual harassment. Therefore, you do not need to quit joking, flirting, or complimenting your coworkers, unless this behavior could be perceived as offensive. However, if you are making your coworkers uncomfortable, you should stop. In addition to sexual harassment, are there other kinds of harassment? Yes. State and federal laws also prohibit harassment based on race, color, religion, national origin, disability, and age. Harassment based on these characteristics occurs as hostile environment harassment. The same analysis described above for hostile environment sexual harassment is applied. What should I do if I suspect harassment is happening at my workplace? Report the harassment to your supervisor as soon as possible, even if you are not sure that the conduct is harassment. Your district has policies that prohibit harassment at DIA(LEGAL) and (LOCAL). The policies include procedures for how to report suspected harassment and even require you to report suspected harassment of other employees. If you have any questions at all, ask your supervisor or the campus principal. What should I do if I am harassed? Again, report the harassment to your supervisor. If your supervisor is harassing you, report the harassment to the person identified in your district s harassment policies, likely someone above the harasser in the chain of command. Remember, when you make your report, try to follow your district s harassment policies. 3

Can I be retaliated against by the district for filing a harassment report? Retaliation against an employee alleged to have experienced harassment, a witness, or another person who makes a report or participates in an investigation is strictly prohibited. The district may not retaliate against a person who makes a good faith report of prohibited harassment. A person who intentionally makes a false claim, offers false statements, or refuses to cooperate with a district investigation regarding prohibited harassment is subject to appropriate discipline, however. Can an employee be held responsible for harassment committed by another employee? Yes, in some circumstances. A supervisor may be held liable for harassment done by a subordinate if the supervisor knows of the harassment and fails to take action to address it. Therefore, it is important that supervisors be diligent in addressing known instances of harassment consistent with district policies. B. Sexual Harassment of Students by Employees What is employee-to-student sexual harassment? Sexual harassment of a student by an employee includes any welcome or unwelcome sexual advances, requests for sexual favors, and other verbal, physical, or visual conduct of a sexual nature. Sexual harassment can be words, or actions, or both. Sexual harassment can happen when a school employee offers a student a benefit, such as a good grade, or threatens the student with punishment, such as a bad grade, based on the student s response to the employee s advances. Sexual harassment can also include activities such as engaging in sexually oriented conversations for the purposes of personal sexual gratification, telephoning a student at home or elsewhere to solicit inappropriate social relationships, or physical contact reasonably construed as sexual in nature. Sexual words and actions are always prohibited between employees and students, regardless of whether the student consents to or even encourages the employee s behavior. Courts will not consider a sexual relationship between an employee and a student to be consensual, even if the student is over the age of 18. What is sexual abuse or sexual assault of a minor? Sexual abuse of a child under 18 includes sexual conduct harmful to the child s mental, emotional, or physical welfare; failure to make a reasonable effort to prevent sexual conduct harmful to the child; and compelling or encouraging the child to engage in sexual conduct. Sexual abuse is a form of child abuse that must be reported to appropriate law enforcement authorities as described below. 4

Sexual assault of a child younger than 17 occurs if a person intentionally or knowingly causes sexual contact with the child. Sexual assault includes, but is not limited to, sexual intercourse. Sexual assault is a second-degree felony. What can happen to a school employee who sexually harasses or abuses a student? An employee who commits sexual assault or sexual abuse can be arrested and prosecuted for the crime. The victim could also sue the harasser for money damages. In addition, school district policy expressly prohibits employee conduct constituting sexual harassment of students. An employee who commits such conduct is subject to a range of disciplinary actions, including oral or written reprimand, suspension with or without pay, nonrenewal, or termination. Moreover, if a district terminates a certified employee because he or she committed sexual or physical abuse of a child, the superintendent must report the termination to the State Board for Educator Certification (SBEC). The superintendent must also notify SBEC when a certified employee resigns and reasonable evidence supports termination for the misconduct mentioned above. SBEC may then take action to remove or suspend the harasser s teaching credentials. Can the district be held responsible for sexual harassment or abuse committed by an employee? Yes. The U.S. Supreme Court has held that sexual harassment of a student by a school employee is illegal discrimination on the basis of sex. A school district can be held liable in court if it is deliberately indifferent to the sexual harassment of a student. In other words, a student who has been sexually harassed by a school employee can seek monetary damages from the school district if a school official with authority to address the alleged harassment had actual knowledge of the harassment and failed to respond or responded with deliberate indifference. Can an employee be held responsible for sexual harassment or abuse committed by another employee? Under some circumstances, yes. A school district employee who supervises other employees, such as a principal, a cafeteria manager, or a transportation supervisor can be held responsible for sexual harassment committed by a subordinate. A supervisor can be held responsible for sexual harassment committed by a subordinate if the supervisor knew the subordinate was committing sexual abuse against a student and the supervisor took no action to stop the abuse. More specifically, an individual supervisor may be held personally liable for a subordinate s sexual harassment of a student if: The supervisor learned of facts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing the student; 5

The defendant demonstrated deliberate indifference toward the constitutional rights of the student by failing to take action that was obviously necessary to prevent or stop the abuse; and This failure caused the student to suffer abuse. What should I do if I observe or suspect that a student is being sexually harassed or abused? Report it! Texas law requires school employees to report suspected sexual abuse to appropriate law enforcement authorities. In addition, district policy requires all employees to report suspected sexual harassment to the district administration. When is an employee required to report suspected sexual abuse to law enforcement? The Texas Family Code requires a professional school district employee who has cause to believe that a child has been or may be abused or neglected or is a victim of indecency with a child to make a report to any local or state law enforcement agency or the Child Protective Services (CPS) division of the Texas Department of Family and Protective Services not later than 48 hours after the hour the employee first suspects that the child has been or may be abused or neglected or is a victim of indecency with a child. Any employee who believes that a child s physical or mental health or welfare has been adversely affected by abuse or neglect must immediately make a report to Child Protective Services, local law enforcement, or another appropriate entity as required by the Texas Family Code. Sexual abuse of a child under 18 includes sexual conduct harmful to the child s mental, emotional, or physical welfare; failure to make a reasonable effort to prevent sexual conduct harmful to the child; and compelling or encouraging the child to engage in sexual conduct. Indecency with a child means engaging in sexual contact or indecent exposure with a child younger than 17. Each individual employee with reason to believe that a student is being or has been abused must personally make a report directly to law enforcement or CPS. Notifying the district will not satisfy the requirements of this law. An employee commits a crime if he fails to make a required report to law enforcement or CPS. SBEC may also impose sanctions on an employee s certificate for failure to make a required report. When is an employee required to report suspected sexual harassment to administration? Your district s sexual harassment policy FFH(LOCAL) requires all employees to report known or suspected student sexual harassment to the school district. The local policy names the specific person to whom a report should be made. For example, the policy might say that employees should make a report to their supervisors, their campus principal, the superintendent, or the Title IX coordinator. If you know or suspect that a student is being sexually harassed, you should follow your district s policies and report the harassment. Failure to report suspected harassment of a student could lead to adverse employment consequences, such as being reprimanded, suspended, or fired. 6

If I suspect that a student is being sexually harassed and I report the suspected harassment to the district, will my report be kept confidential? Once a report is made, the district will keep the report confidential to the extent possible. Limited disclosure may be necessary to conduct a thorough investigation, but otherwise the information will not be released. The Family Educational Rights and Privacy Act (FERPA) prohibits disclosure of student education records, including the personally identifiable information contained in those records, to any party, by means including oral, written or electronic. During the course of sexual harassment investigations conducted by school officials, students complaints and written statements become a part of the students education records, subject to the confidentiality requirements of FERPA. Keep in mind that anyone with knowledge of sexual harassment involving a student should not hesitate to make a report or complaint to the district. Reporting sexual harassment to the district is the fastest way to stop the harassment. Can the district retaliate against me for reporting suspected harassment? Title IX prohibits retaliation by the district against an employee who reports sexual discrimination or harassment. In addition, district policy specifically prohibits retaliation against anyone who makes a report or complaint or who participates in a sexual harassment investigation. 7

Part Two: Harassment Committed by Students A. Sexual and Other Harassment Among Students What is sexual harassment among students? Student-to-student sexual harassment includes unwelcome verbal, physical, or visual conduct of a sexual nature that is severe and pervasive. Such harassment can include words, gestures, requests for sexual favors, or any other unwelcome sexual conduct. Harassment is unwelcome if the student did not invite the attention or considers the attention undesirable or offensive. Can girls harass boys? Yes, although males commit sexual harassment more frequently, females can harass males. The same rules apply to both sexes. Does sexual harassment happen only between members of the opposite sex? No. Sexual harassment can occur between members of the same sex. Same-sex sexual harassment can occur when a student is sexually attracted to a member of the same sex. More often, however, same-sex sexual harassment occurs when a group of students decides to pick on or harass a member of the same sex, and the way they choose to carry out the harassment has sexual connotations. For example, a group of girls spreading sexual rumors about another girl could be considered sexual harassment. In addition to sexual harassment, what kinds of harassment are prohibited? State and federal laws also prohibit harassment of a student based on the student s race, color, gender, national origin, disability, or religion that is so severe, persistent, or pervasive that the conduct: 1. affects a student s ability to participate in or benefit from an educational program or activity, or creates an intimidating, threatening, hostile, or offensive educational environment; 2. has the purpose or effect of substantially or unreasonably interfering with the student s academic performance; or 3. otherwise adversely affects the student s educational opportunities. The conduct may be physical, verbal, or nonverbal. 8

When can a school district be held responsible for student-to-student harassment? In the context of student-to-student sexual harassment, the U.S. Supreme Court has determined that a school district may be liable under Title IX, for monetary damages if: (1) its deliberate indifference causes students to undergo harassment or makes them vulnerable to it, and (2) the harassment takes place in a context subject to the school district s control. A school district may be liable under Title IX, therefore, only if its response or lack of response to harassment is clearly unreasonable in light of the known circumstances. However, districts cannot be sued for harassment based upon race, color, or national origin under Title VI unless the district intended for the student to be harassed. Therefore, a district will not be liable under Title VI for deliberate indifference to the harassment of a student. In cases where the plaintiff argues that the district was deliberately indifferent, the plaintiff may instead sue to enforce Title VI under Section 1983 but the courts are split as to what extent such claims may be possible. What should I do if I observe or suspect harassment among students? Your response will depend on the nature of your job, the severity of the harassment, and the requirements of your district s local policy. If you observe harassment among students that you are not directly supervising, you should report the harassment immediately in accordance with district policy. For example, if you work in the cafeteria and you see a group of students harassing another student, you should report the harassment right away to your supervisor, the campus principal, or perhaps the teacher responsible for the students at the time. On the other hand, if you are supervising students and you observe or learn of harassment among the students, you should treat the conduct as a discipline problem. For instance, if a student makes an inappropriate comment to a classmate during class, the teacher may choose to reprimand the student or may discipline the student by requiring the student to apologize, assigning an essay about harassment, or calling the student s parents. If, however, classroom discipline management techniques fail to stop the harassment, or if you observe or learn of serious harassment, the situation should be referred to the campus principal immediately. The principal will then investigate and, if necessary, select an appropriate discipline technique, such as in-school suspension, off-campus suspension, or removal to an alternative education program. In addition, the principal should contact law enforcement if he or she believes a crime has been committed on campus. How can I help prevent student harassment? Know your local policy. Policies FFH(LEGAL) and (LOCAL), FNC(LOCAL), and FO(LEGAL) define and prohibit harassment. School districts should also prohibit harassment in the Student Code of Conduct. 9

Report all allegations of harassment. Treat all allegations seriously, no matter how outrageous they may seem. Keep a record of any actions you take to stop or report harassment. For example, if a bus driver sees a group of students harassing another student on the bus, the driver should report the behavior to his supervisor or the principal. The driver should also write down what he saw and whom he told about the incident. Keep reports and complaints confidential. The Family Educational Rights and Privacy Act (FERPA) prohibits disclosure of student education records, including harassment reports and investigations. Discipline consistently. School districts should prohibit harassment in local policy and in the Student Code of Conduct. School employees enforcing these rules should discipline all students and employees who engage in this behavior consistently, based on the seriousness of the allegations and other relevant factors. B. Bullying Among Students What is bullying? Bullying is conduct engaged in with the purpose of intimidating or demeaning the victim. Bullying may be in the form of physical conduct or written or verbal expression. The conduct may cause physical harm or the fear of physical harm to the victim or result in harm or fear of harm of property. It is also possible that the conduct or expression may only result in severe emotional harm. Regardless, the conduct must be severe, persistent, and pervasive enough to create an intimidating, hostile, or abusive educational environment for the victim. Bullying may include such acts as harassment, hazing, threats, taunting, confinement, assault, and ostracism. Bullying does not include mere horseplay, however. What are common characteristics of a bully? The typical bully is in a position of power over the victim, whether it be as a result of popularity, size, age, or some other characteristic or status. Bullies often are aggressive, are easy to anger, feel a sense of entitlement, lack empathy, or feel socially isolated. Sometimes the bully is, by all appearances, a successful student and good kid but chooses to bully another student to assert his or her social status. 10

Bullying behavior is not limited to boys. Girls can be bullies, too. Although the majority of girls who engage in bullying behavior do so using verbal or written expression or ostracism, increasingly girl bullies are resorting to physical conduct. What are the consequences of being a bully? Bullies have an increased risk of poor performance at school, issues with violence and drug abuse, and criminal activity as adults. They often also fail to develop the communication and relationship skills necessary to function as successful adults. What are common characteristics of a victim? Many victims of bullying are quiet, sensitive, and not inclined to retaliate against the bully. Often these students are perceived by other students as being different or weak. However, some victims are reactive and may fight back against their harasser. They may also act to provoke the bully. Reactive victims may also lash out by bullying other students they perceive as weaker. What are the consequences of being a victim? Victims often struggle with social and emotional development and may perform poorly at school. Victims are prone to depression and may physically harm themselves. Where does bullying take place? Bullying is more likely to occur where adults are not present or closely supervising students. Bullying occurs in cafeterias at lunchtime, before and after school, and in the hallways. Increasingly, bullies are using technology to target their victims, a method commonly referred to as cyberbullying. What is cyberbullying? Bullies engaging in cyberbullying use the Internet, text messaging, and similar technology to target their victims. These methods, which give an illusion of anonymity, encourage bullying by those who would normally not engage in such behavior. They also allow a bully to avoid direct confrontation with the victim. Cyberbullying can occur on or off campus. If your class uses computers, pay attention to the warning signs, such as students who quickly change screens when you walk by or students who seem disturbed while reading an item on their computer screen. Bullying acts that occur using campus resources are subject to your district s acceptable use policy and regulation, found at CQ(LOCAL) and (REGULATION) and the Student Code of Conduct. 11

What should I do if I observe or suspect bullying among students? Like cases of student-to-student harassment, your response will depend on the nature of your job, the severity of the bullying, and the requirements of your district s local policy. If you observe bullying among students that you are not directly supervising, you should report the bullying in accordance with district policy FFH(LOCAL) or FFI(LOCAL), as appropriate. If you are supervising students and you observe or learn of bullying among the students, you should treat the conduct as a discipline problem. If, however, classroom discipline management techniques fail to stop the bullying, or if you observe or learn of serious bullying, the situation should be referred to the campus principal immediately. Teachers and principals may also want to contact the bully s parents. Students with little parental involvement and supervision are more likely to engage in bullying acts. The bully s parents can aid in discouraging the negative behavior. How can the district and employees encourage victims to report bullying? Unfortunately, many victims are concerned that if they report bullying that they will be subject to retaliation. Some victims may be less likely to come forward because they think they deserve to be bullied or think that adults will not sufficiently understand the situation to properly address it. To address victims concerns, employees should closely follow the district s bullying and harassment policies found at FFH(LEGAL) and (LOCAL), FFI(LOCAL), and FO(LEGAL). Employees should report all allegations of bullying and harassment and take them seriously. In addition, the district and employees should ensure confidentiality to the extent possible throughout the investigation process consistent with the Family Educational Rights and Privacy Act (FERPA). The district should also enforce discipline against bullies consistently so that the victims can feel confident their concerns are being addressed. C. Dating Violence Among Students What is dating violence? Dating violence occurs when a person inflicts physical harm or bodily injury on or assaults or sexually assaults the individual that person is dating or has dated. Dating violence can include a threat that person makes against the victim that puts the victim in fear of physical harm, bodily injury, assault, or sexual assault. Dating violence may also be committed against a third person because that person is or was in a relationship with someone with whom the offender has had or currently has a dating or marriage relationship. Dating violence occurs in both heterosexual and same-sex relationships and the victim may be a boy or a girl. 12

How can I tell if a student is a victim of dating violence? Victims of dating violence generally display one or more of the following warning signs: The student s attendance and grades drop. The student has unexplained injuries or her explanation for the injuries does not make sense. The student show signs of depression and has trouble making eye contact with others. The student does not seem to be interacting as much with her friends. The student s classroom and extracurricular participation lessens. The student s appearance changes. She gains weight or stops wearing make-up, fixing her hair, or dressing up. The change may be because of the emotional impact that the relationship is having on the victim or because the victim is attempting to hide injuries. When the couple interacts, the partner holds the victim tightly and the victim seems disconnected. The partner may also seem angry at the victim, and the victim be cowering in response. What are the consequences of dating violence? Victims of dating violence often suffer from health issues and depression. Their school performance and attendance may also suffer. Their physical safety may be at risk, and sadly, in some cases, the victim may be permanently disfigured or killed, or the victim may commit suicide. What can I do to prevent or stop dating violence? You can address dating violence by talking to your students about dating violence when the opportunity arises, including the signs and how to address dating violence if it occurs. You should also be available for students who want to talk about their own personal experience or that of their friends. You should listen and not judge but provide them with help to address the problem consistent with the district s dating violence policy as outlined in the district s improvement plan. You may also choose to sponsor a support group for victims and a separate group for abusers. Texas Version The Training Material is provided for educational purposes only and contains information to facilitate a general understanding of the law. It is neither an exhaustive treatment of the law on this subject nor is it intended to substitute for the advice of an attorney. It is important for Purchaser to consult with its own attorney in order to apply these legal principles to specific fact situations. Further duplication or distribution of the Training Material (other than as specifically set out in the document entitled Terms and Conditions of Use, included on the supplementary materials CD), in whole or in part, is prohibited without written permission of TASB. Requests to duplicate or distribute any portion of the Training Material should be made in writing to Director, Legal Services, Texas Association of School Boards, P.O. Box 400, Austin, Texas 78767-0400. 13