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ACSA’s ECCS:!iLearn, iGrow, iSucceed
January 15, 2014!!
Presented by:!Cole Dalton, Esq.!
Dalton Law Group, PC!
Safe Schools: It Takes A Village
Topics
• School Districts’ Legal Responsibilities Under California & Federal Law
• Examples of Prohibited Behavior
• Implementing AB 1266
• Impact of Harassment
• Exercises to Aid Compliance
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Video
Legislative Declarations• Combat racism, sexism and other forms
of bias
• Prevent & respond to acts of hate violence and bias-related incidents in an urgent manner
• Teach & inform students of rights to increase awareness/understanding & promote tolerance and sensitivity
CA LAW - EQUAL RIGHTS
All pupils have the right to
participate fully in the educational process, free from discrimination and
harassment. (Cal. Ed. Code § 200, 201(a))
California Law
• Equal Protections under CCR:
• Educational environment;
• Extracurricular and club activities;
• Retaliation.
• Dress Code. (Source: 5 CCR § 4900, et seq.)
APPLIES REGARDLESS OF:
• disability • gender, gender identity or
gender expression • nationality • race or ethnicity • religion • sexual orientation
Com
mon
Lan
guag
e
What Do We Mean By:
• Sexual Orientation
• Gender Identity
• Gender Expression
• Gender Non-Conforming
Gender Identity
Ed. Code § 210.7
• gender "means sex, and includes a person's gender identity and gender related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth."
Applies To Heterosexual Students
Prohibits discrimination & harassment based upon:
•“actual or perceived” •sexual orientation & gender identity.
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•(AB 537, California Student Safety & Violence Prevention Act of 2000); • (AB 777) •5 CCR 4910(k) •Cal. Ed. Code § 210.2, 210.7, 212.5, 212.6
What Is It?
• “conduct based on protected status
• that is severe or pervasive,
• which unreasonably disrupts one’s educational or work environment
• or that creates a hostile educational or work environment.”
(Student Safety & Violence Prevention Act of 2000; Cal. Ed. Code § 201(c).)
What Does That Mean?
(Dear Colleague Letter, 55 IDELR 174 (OCR 2010)
Verbal ActsName Calling
Graphic & Written Statements
Can Include Use Of Cell Phones & Internet
Any Conduct That May Be Physically Threatening, Harmful or Humiliating
Seth’s Law (7/1/12) New(er) CA Mandate
“If school personnel witness an act of discrimination, harassment, intimidation, or bullying, he or she shall take immediate steps to intervene when safe to do so.”
(Education Code Section 234.1(b)(1))
Affirmative Duties: Personnel
• School personnel are to take immediate steps to intervene, when safe to do so,
• If s/he witnesses an act of discrimination, harassment, intimidation, or bullying.
(Ed. Code § 234.1)
Affirmative Duties: Policies
• Adopt a policy that prohibits discrimination, harassment, intimidation and bullying based on actual or perceived enumerated characteristics
(Ed. Code § 234, et seq.)
Affirmative Duties: Policies
• Post policies in schools & offices, staff lounges & rooms that hold student government meetings
• Publicize policies to parents, students, employees, agents of the governing board and the general public
(Ed. Code § 234, et. seq.)
• Displays of affection: YOU can’t do that here
• Dress Codes: Go home and take that off!
• Locker Rooms: Oh no you don’t
• Clubs: You can not start a club with those people D
iscrim
inat
ory
Polic
ies
• Prom rules
• Hateful slurs addressed inconsistently
• School response gone awry
Disc
rimin
ator
y Po
licie
s
• Adopt & implement a complaint process
• To receive, investigate and resolve
• Complaints of discrimination, harassment, intimidation, and bullying
(Ed. Code § 234, et. seq.)
Affirmative Duties: Complaints
Affirmative Duties: Complaints
• Timeline to investigate and resolve complaints
• Appeal process
• Maintenance of complaint & resolution documents
• Protection & confidentiality
• Designation of compliance officer(Ed. Code § 234, et. seq.)
AB 1156 (amends 32261, 32282, 32283, 46600 and 48900)
• encourages inclusion of policies aimed at prevention of bullying & cyberbullying in school safety plan
• victims given priority to transfer to new school district
• Signed into law on July 14, 2011
• Compels inclusion of political, economic & social contributions of LGBT people in textbooks & social studies curricula in CA public schools
• Prohibits schools from sponsoring negative activities about sexual orientation or teaching students about it in an adverse way
FAIR Education Act
Another New Law: AB 1266
•Enacted August 12, 2013
•Requires that transgender students be permitted to participate in sex-segregated school programs and activities, and use facilities consistent with their gender identity, irrespective of the gender listed on the pupil’s records
(Amendment to Ed. Code § 221.5)
Colorado School Board Member: “Not In This District”
“I don’t have a problem if some boys think they are girls, I’m just saying as long as they can impregnate a woman, they’re not going to go in the girls’ locker room.”
Brain Storming
Federal Law
• U.S. Constitution -
• First Amendment
• Fourteenth Amendment
• Equal Access Act
• Title IX of Education Amendments of 1972 (2003)
First Amendment
Congress shall make no law...abridging the freedom of speech...or the right of the
people peaceably to assemble
and to petition the government for a redress of grievances.
(Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969); Doe v. Yunits, 2000; Fricke v. Lynch,1980; Henkle v. Gregory, 2001)
• No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
• nor shall any state...deny to any person within its jurisdiction the equal protection of the laws.
Four
teen
th A
men
dmen
t, A
rt. 1
(see Flores v. Morgan Hill Unified School District, 2003; Montgomery v. Independent School District, 2000; Nabozny v. Podlesny, 1996)
Title IX
Prohibits discrimination based on sexBut has been held to apply to sexual
harassment, regardless of genderAnd gender based harassment
Applies regardless of the actual or perceived sexual orientation or gender identity of the harasser or target
Title IX Lawsuit
•School official with authority to address discrimination
•acts with deliberate indifference to sexual harassment
•of which he/she has actual notice and
•the sexual harassment is so severe, pervasive, and objectively offensive that it deprives the victim of access to educational opportunities or benefits.
(Ray v. Antioch Unified School District (N.D. Cal. 2000) 107 F.Supp.2d 1165; Davis v. Monroe (1999) 526 US 629.)
Title IX Lawsuit - deliberate indifference
• conscious disregard for a risk
• response to known peer harassment in a manner that is clearly unreasonable.
(Flores v. Morgan Hill Unified School District, F.3d 1130 (9th Cir. 2003).)
Title IX Lawsuit
School officials may be personally liable for another’s harassment if they are “aware of specific risk of harm” and they fail to take reasonable steps. (Flores v. Morgan Hill.)
Qualified Immunity
•Government officials
•Performing discretionary functions
•Entitled to qualified immunity from liability for civil damages
•where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
(Harlow v. Fitzgerald (1982) 457 U.S. 800, 818, Citing, Procunier v. Navarette, 434 U.S. 555, 565 (1978); Wood v. Strickland, 420 U.S., at 322.)
Incidents of Harassment
Three in ten students (27.1%) were physically harassed because of their gender expression. (GLSEN 2011 National School Climate Survey)
Almost half (38.3%) of students had been physically harassed at school in the past year because of their sexual
orientation. (2011 National School Climate Survey)
1/4 of CA students are harassed because they are not “as masculine as other guys” or “as feminine as
other girls.” Stephen Russel et al., California Sade Schools Coalition Research Brief
Impact of Harassment
• 3 times more likely to miss school
• Lower Academic Achievement
• Significantly Lower grade point averages
• Depression
About 3.5 suicides in the US per day 11 teen suicides per day
Lesbian, gay, and bisexual youth are up to 4 times more likely to attempt suicide than
their heterosexual peers. (Massachusetts Youth Risk Survey 2007)
Attempts by gay and lesbian youth account for up to 30 % of all completed suicides. (www.thetrevorproject.org)
Walk The Walk
“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”
- Margaret Mead
Exercises
Walking the walk
Bystander UpstanderPerpetrator
What’s working? What isn’t?
Video - Exercise
Exercise: 5 Steps For Changing Behavior
On Campus
1. Address Immediately2. Name The Behavior
3. Use/Create Teachable Moment
4. Support Targeted Student5. Hold Students Accountable
Small Group Exercises
• Practice makes perfect!
October 19 - 25, 2014
January 20-24, 2014
Resources
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https://www.aclu.org/
http://www.cde.ca.gov
Good Bye! Thanks for
coming !