A r c h i v e d I n f o r m a t i o nProtecting Students from Harassment and Hate Crime: A Guide for Schools - January 1999
A comprehensive approach for eliminating harassment includes developing and dissemi - nating strong, written policies specifically prohibiting harassment. Policies should take into account the significant legal factors relevant to determining whether unlawful harassment has occurred and should be tailored to the needs of the particular school or school district.
COMPONENTS OF POLICY. The policy should do the following:16
A district will need to decide whether to adopt one policy covering all types of unlawful harassment or separate policies covering the different bases of harassment. Small districts may find it more practical to develop one policy. If a district adopts more than one policy to cover different types of harassment, it should use the same grievance procedures for all harassment complaints to avoid confusion.
PROCESS OF POLICY DEVELOPMENT. The process for developing an anti-harassment policy can be used to educate all members of the school community about harassment and the tools for responding. Taking the following steps will help to demonstrate that the district is committed to vigorous enforcement of its policy:
The points that should be included in the district's anti-harassment policy are discussed in the following pages.
EXAMPLE: It is the policy of the ______ School District to maintain a learning . . . environment that is free from religious, racial or sexual harassment. . . .The School District prohibits any form of religious, racial or sexual harassment and violence.
Source: Sample School Board Policy prepared by the Minnesota School Boards Association17
ACADEMIC AND NONACADEMIC SETTINGS. As required by federal law, the policy should apply in all academic programs and extracurricular activities, including school-sponsored events away from school. Examples of settings in which prohibited harassment can occur include school classrooms and hallways, school buses, cafeterias, athletic competitions, field trips and cooperative work programs.
EMPLOYEES, STUDENTS, AND THIRD PARTIES. The policy should prohibit harassment by district employees and students.18 In addition, the policy should explicitly cover harassment by third parties not directly subject to district control (i.e., persons who are not students or employees) when such persons are engaged in school-sponsored activities. Examples of third parties include audiences and competitors at interdistrict athletic competitions, service contractors, school visitors, and employees of businesses or organizations participating in cooperative work programs with the district.
Although the district may not be able to directly penalize harassers who are not employees or students, it must remedy and prevent a hostile environment in all of the programs and activities it sponsors.19If, for example, employees of businesses participating in cooperative work programs harass students, the district should require the business or organization to take immediate corrective action and monitor the situation to ensure that the action was effective. If corrective action is not taken, the district should suspend or terminate the relationship.
A hostile environment may be created by behaviors such as the following:
EXAMPLE: For purposes of this policy, racial harassment of a student consists of verbal or physical conduct relating to an individual's race or color when:
- the harassing conduct is sufficiently severe, persistent or pervasive that it affects a student's ability to participate in or benefit from an educational program or activity or creates an intimidating, threatening or abusive educational environment;
- the harassing conduct has the purpose or effect of substantially or unreasonably interfering with an individual's academic performance; or
- the harassing conduct otherwise adversely affects an individual's learning opportunities.
Source: Sample School Policy prepared by the Office of the Arizona Attorney General22
Because there are some differences between this form of harassment and race/national origin harassment, a district's policy should have a separate definition of sexual harassment. Sexual harassment can take two forms, quid pro quo and hostile environment.
Quid pro quo sexual harassment occurs when a school district employee explicitly or implicitly conditions a student's participation in an education program or activity or bases an educational decision on the student's submission to unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature, whether or not the student submits to the conduct.
Hostile environment harassment occurs when unwelcome sexual advances, requests for sexual favors, and other verbal,nonverbal, or physical conduct of a sexual nature by another student, a school employee, or a third party are sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an educational program or activity or to create a hostile or abusive educational environment. Sexual harassment includes conduct that is also criminal in nature such as rape, sexual assault, stalking, and similar offenses.
EXAMPLE: Sexual Harassment - Sexual harassment consists of unwelcome sexual advances, requests for sexual favors, sexually motivated physical conduct or other verbal or physical conduct of a sexual nature when:
- Submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of . . . obtaining an education; or
- Submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual's . . . education;
- That conduct or communication has the purpose or effect of substantially or unreasonably interfering with an individual's . . . education or creating an intimidating, hostile or offensive . . . educational environment.
Sexual harassment may include but is not limited to:
- Unwelcome verbal harassment of a sexual nature or abuse;
- Unwelcome pressure for sexual activity;
- Unwelcome, sexually motivated or inappropriate patting, pinching, or physical contact;
- Unwelcome sexual behavior or words, including demands for sexual favors, accompanied by implied or overt threats concerning an individual's . . . educational status;
- Unwelcome behavior, verbal or written words or symbols directed at an individual because of gender;
- the use of authority to emphasize the sexuality of a student in a manner that prevents or impairs that student's full enjoyment of educational benefits, climate or opportunities.
Source: Racial, Sexual, Religious/Ethnic Harassment and Violence Policy of the Legislative Rules of the West Virginia Board of Education23
HARASSMENT BY PERSON OF SAME SEX. Under federal law, sexual harassment is prohibited regardless of the sex of the harasser, i.e., sexual harassment may occur even if the harasser and the person being harassed are the same sex.24
SEXUAL HARASSMENT OF GAY AND LESBIAN STUDENTS. Sexual harassment directed at gay or lesbian students may constitute unlawful sexual harassment. For example, targeting a gay or lesbian student for physical, sexual advances may constitute sexual harassment. However, nonsexual harassing behavior directed at a student because of the student's sexual orientation does not constitute sexual harassment under the federal discrimination laws enforced by OCR. For example, heckling comments made to students because of their sexual orientation, such as "gay students are not welcome here," does not constitute sexual harassment under Title IX.25
State laws may explicitly bar harassment based on sexual orientation or treat it as prohibited sex discrimination. In addition, other federal, state, or local laws may apply to harassment based on sexual orientation if the behavior is criminal or violent in nature.
A district's policy may include a statement that harassing conduct of a sexual nature, which is otherwise prohibited, is not exempted based on the sex or sexual orientation of the harasser or target of harassment.
EXAMPLE: This [the prohibition against sexual harassment] applies whether the harassment is between people of the same or different gender.
Source: State of Vermont Model Anti-Harassment Policy
UNWELCOME SEXUAL CONDUCT. In order to constitute prohibited sexual harassment, the conduct must be unwelcome. Districts should carefully consider, however, whether sexual conduct between adult employees and students should ever be characterized as welcome by a student. OCR's interpretation of Title IX is that sexual conduct between an elementary age student and an adult employee may never be considered welcome. Further, such conduct between a secondary age student and an adult employee is presumptively unwelcome.26 Some school districts have chosen to adopt policies that ban all sexual conduct between adult employees and students or deem it unwelcome.27
Policies may remind members of the school community that not all physical contact between employees and students constitutes prohibited sexual harassment.28
EXAMPLE: This prohibition [against sexual harassment] does not preclude legitimate, nonsexual physical contact such as the use of necessary restraints to avoid physical harm to persons or property, or conduct such as [a] teacher's consoling hug of a young student, or one student's demonstration of a sports move requiring contact with another student.
Source: Sample School Policy Prepared by the Office of the Arizona Attorney General
Sexual harassment, because of its nature and its prevalence in many schools, may warrant separate in-depth, age-appropriate training for all students, as well as staff. Training may cover the nature of sexual harassment, the damage that results from harassment, where students can find help, methods of opposing sexual harassment of oneself or others, and similar topics.
Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 prohibit discrimination on the basis of disability by school districts receiving federal funds and by governmental entities, respectively. Harassment based on disability has not received as much public or legal attention as has racial and sexual harassment; however, disability related harassment is a form of impermissible discrimination.29
School districts are advised to include disability harassment in their policies and to consider such harassment under similar standards as are applicable to racial and sexual harassment. As in the case of racial and sexual harassment, the age of the harasser is an important element in determining whether prohibited harassment occurred and in selecting an appropriate remedy.
An example of possible disability harassment, that is not typical of other kinds of harassment, would occur where a person seeks to involve a student with disabilities in antisocial, dangerous or criminal activity where the student, because of disability, is unable to comprehend fully or consent to the activity.30
A hostile environment may be created even though the student does not suffer tangible harm, such as a drop in grades. For example, a hostile environment could be found where a student, with considerable effort, was able to continue to go to school and achieve good grades despite the difficulties caused by the harassing behavior.
Schools also need to look at the type of conduct involved. For instance, an isolated incident of name-calling among older students of the same age is unlikely, by itself, to establish a hostile environment as defined by federal law. However, a single incident of severe harassment that, for example, provokes fear of violence on the part of the target, could be sufficient to cause a hostile environment. Persistent, abusive racial or sexual slurs, even without physical contact, can also create a hostile environment, depending on the circumstances. As these examples indicate, determination of whether a hostile environment is created depends upon all of the relevant circumstances surrounding a particular incident of harassment, including its relationship to other incidents of harassment.31
School policies should include language recognizing that a finding of unlawful harassment depends upon the context of the behavior and all of the surrounding circumstances.
EXAMPLE: In determining whether alleged conduct constitutes a violation of this policy, the School District should consider the surrounding circumstances, the nature of the behavior, the relationships between the parties involved and the context in which the alleged incidents occurred. Whether a particular action or incident constitutes a violation of this policy requires a determination based on all of the facts and surrounding circumstances.
Source: Sample School Board Policy Prepared by the Minnesota School Boards Association
Even if objectionable conduct is determined not to be sufficiently severe, persistent, or pervasive to create a hostile environment, the district would be wise to take prompt action to appropriately address the behavior. The school's policy may contain guidance to school officials in this regard.
Schools may adopt policies that prohibit harassment based on grounds not specifically provided for in federal anti-discrimination statutes, such as harassment based on religion or sexual orientation.
HARASSMENT BASED ON RELIGION. There is no federal statute that specifically requires school districts to address harassment of students on the basis of their religion or religious affiliation.32 However, there may be instances in which harassment on the basis of religion or religious affiliation has elements of, or is combined with, discrimination based on race or national origin and can be addressed under laws prohibiting such discrimination. Many states have laws prohibiting discrimination on the basis of religion by school districts and other governmental agencies.
HARASSMENT BASED ON SEXUAL ORIENTATION. Some state and local laws may prohibit discrimination on the basis of sexual orientation. Also, under certain circumstances, courts have permitted a remedy for harassment on the basis of sexual orientation under other federal legal authority. For example, a 1996 federal court of appeals case held that a gay student could recover for discrimination based on both sex and sexual orientation under the Equal Protection Clause of the United States Constitution in a case in which school district officials allegedly failed to protect the student to the same extent that other students were protected from harassment due to the student's sex and sexual orientation.33 School districts should consult appropriate state and local officials and legal counsel regarding the extent of their responsibility to address harassment of students based on sexual orientation.
Harassment and criminal conduct based on actual or perceived sexual orientation has been recognized as a significant problem in many schools. School officials should consider whether adopting specific statements or policies regarding harassment based on sexual orientation will help to protect students from violence and damaging behavior of this sort.34
A district's written policies should contain enough information to guide school administrators and staff to respond appropriately to instances of harassment that are reported by students, parents, staff, or other persons. District policies may explicitly distinguish the different types of response mechanisms available and indicate when each should be used. Reporting and response mechanisms include disciplinary referrals, the formal discrimination complaint process (including interim steps to protect the victim), other administratively initiated investigations and inquiries, referral to outside criminal or civil authorities, and various types of informal resolution procedures.
As described in detail in Part II: Formal Complaint Procedures, the policy should contain or reference written complaint procedures (also termed "grievance procedures") that can be initiated by students and their parents to ensure complete examination of harassment claims. The policy should also identify the employees designated by the school to accept complaints and to supervise the complaint process and explain how these persons can be contacted.35 The policy should indicate that, if harassment is found, immediate and appropriate action will be taken to stop the harassment and deter its recurrence. As further discussed in Part II: Identifying and Responding to Incidents of Harassment, the policy should also require staff to report incidents of harassment that they learn about or observe.
Federal law also prohibits retaliation against persons who report discrimination, including harassment, or participate in related proceedings.36 The policy should tell students and staff that the school will take steps to try to prevent retaliation and will take strong responsive action if retaliation occurs. Staff should also be reminded that the names of targets of harassment and perpetrators and witnesses of harassment should be held in strict confidence, except as release is necessary to investigate specific incidents.
EXAMPLE: The School District will discipline or take appropriate action against any pupil, teacher, administrator, or other school personnel who retaliates against [or attempts to retaliate against] any person who reports alleged . . . harassment or violence, files a complaint of harassment, who testifies, assists or participates in any investigation, hearing or proceeding related to such harassment or violence. Retaliation includes but is not limited to any form of threat, intimidation, reprisal or discrimination.
Source: Sample School Board Policy of the Minnesota School Boards Association
When regulating the conduct of students and teachers to prevent or address discrimination, a school must formulate, interpret, and apply its rules so as to protect constitutional rights. In cases of alleged harassment, the protections of the First Amendment must be considered if issues of speech or expression are involved. Federal civil rights laws are intended to protect students from discrimination, not to regulate the content of speech.
Whether or not speech or expression that is alleged to constitute harassment is protected by the First Amendment will generally depend upon the facts and context involved, including the type and timing of the speech, the nature of the forum in which the speech takes place, and the educational level and age of the students involved. Most First Amendment questions do not have stock solutions. Resolving situations in which First Amendment questions arise requires careful weighing of all of the factual and legal considerations. OCR's Sexual Harassment Guidance, in particular, contains an analysis of the interplay of the protections of the First Amendment and the federal prohibition of harassment.37
Schools should consult legal counsel if First Amendment concerns arise in the course of implementing the district's policy. To avoid potential conflicts with the First Amendment, make sure that training of administrators and staff includes First Amendment issues, that administrators and teachers know whom to consult about such issues, and that the district's regular student disciplinary policies are consistently enforced. Good training programs to sensitize students and staff to the harmful effects of thoughtless behavior will avoid many problems. A district's anti-harassment policy may contain a reminder to administrators and staff to apply the policy in a manner that complies with the First Amendment.