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
FEDERAL REQUIREMENTS. The regulations implementing federal laws prohibiting sex and disability discrimination require districts to adopt and implement complaint procedures (also termed "grievance procedures") that provide due process protections.45 The regulations prohibiting racial discrimination do not contain a similar explicit requirement. However, whether or not a particular statute or regulation explicitly requires grievance procedures, the availability of formal grievance procedures helps to assure that the district will respond properly to allegations of harassment. The specific procedures discussed in this chapter are intended to comply with federal law, where applicable, and will, in many instances, facilitate an appropriate and effective response to all allegations of harassment.
Federal law permits districts to use their discrimination complaint procedures for complaints of harassment, as well as for other kinds of discrimination. However, it is recommended that districts develop and employ complaint procedures tailored to allegations of harassment. Designing a complaint or grievance procedure that functions effectively to address complaints of harassment takes knowledge of a district's administrative and staff resources, an understanding of typical student behavior and concerns, attention to logistical details, and familiarity with the kinds of harm which the targets of harassment are likely to experience. Examples of grievance procedures developed to address reports of harassment are given in Appendix A [pdf format] of this Guide.
Grievance procedures applicable to discrimination, including allegations of harassment, should contain the following components.
PUBLICIZE THE PROCEDURES. A complaint procedure that no one knows about is a problem! Determine whether students, staff, and administrators are knowledgeable about the grievance procedures and whether they are perceived as effective mechanisms to stop harassment of students. Publicize the procedures to students, parents, teachers, administrators, and other employees, including information on how and where complaints may be filed. Pertinent information about the complaint procedures can also be provided in languages other than English. Like the district's anti-harassment policies, the complaint procedure should apply to complaints alleging harassment by employees, agents, other students, or third parties.
COMMUNICATIONS WITH PERSONS WITH DISABILITIES. Make sure that information about complaint procedures is effectively communicated to persons with disabilities. The regulation implementing Title II of the Americans with Disabilities Act requires public entities (such as public school districts) to ensure that their communications with participants and members of the public with disabilities are as effective as their communications with others.46 This may include providing information in alternative formats, such as Braille and large print.
REVIEW PAST EFFORTS. It can be helpful for a district to review the frequency and manner in which its grievance procedures have been used in the past. This review is key to determine whether the grievance procedures have functioned successfully to address claims of harassment and, if not, why not. Checklists are available for evaluating district grievance procedures.47
FILING A FORMAL COMPLAINT. As explained in this Guide, to ensure that discrimination has not occurred, districts should investigate all complaints and reports of harassment, whether or not the complaint is in writing. Districts may require a written complaint to initiate the formal grievance procedure. Persons complaining of harassment should always be informed about the complaint procedures and encouraged to file a formal complaint; persons possibly interested in filing a formal complaint should be given assistance in completing the necessary statement or form. Even if an official complaint is not filed, the district may choose to use the specific investigatory procedure set forth by its formal grievance procedures. Use of these procedures will ensure that all relevant evidence is obtained and all critical elements addressed.
Experts recommend that complainants be allowed to file complaints in more than one location to protect confidentiality and impartiality. The procedure should allow ample time for students to file complaints after the incident occurred, recognizing that students who are traumatized by an incident may not tell anyone about it immediately. Persons with disabilities must be furnished auxiliary aids and services to enable them to file a complaint and participate effectively throughout the complaint process.48
Practical considerations in developing grievance procedures
SELECTING AND TRAINING INVESTIGATORS. The most effective complaint procedures designate specific individuals to investigate harassment complaints and hold them accountable for high quality results. No one should be appointed to investigate a complaint who may encounter the possibility of a conflict of interest. In no case should the person accused of harassment, retaliation, or failure to address a previously reported concern be assigned to investigate a complaint. If possible, designate an official who has not had any prior involvement in investigating or resolving the matter.
Provide sufficient training to personnel who will investigate complaints. Training should cover instruction in appropriate investigative techniques and procedures, the harm caused to students as a result of harassment, the legal standards applicable to harassment determinations, the amount of proof required, treatment of hearsay evidence, and the sanctions and remedies available. Training can also promote sensitivity to issues of culture, language, gender, and disability. The individual assigned should be careful not to become an advocate for any party. Persons assigned to investigate or coordinate complaints should be given enough time to handle them thoroughly and may need access to legal counsel.
INVESTIGATIVE PROCEDURES. Investigation of harassment complaints should be thorough and include the opportunity for the parties to present witnesses and other evidence. A written investigative guide may be helpful. Useful topics include planning the investigation, interview techniques and safeguards, making credibility determinations where different versions of the events are given, locating witnesses, keeping appropriate records, and timeliness considerations.49
If the district develops detailed instructions for the operation of the complaint process, these may be set forth in a separate document or appendix to the written grievance procedure.
If a complaining party, witness, or alleged perpetrator does not speak English adequately,appropriate measures should be taken. Also, consider whether student advocates and other representatives should be allowed in the process. It is a good idea to provide both the alleged victim and harasser with a written statement of procedural rights.
DUE PROCESS RIGHTS OF THE ALLEGED HARASSER. Harassment investigations should be conducted in a manner consistent with applicable due process rights of the alleged perpetrator under the United States Constitution as well as other protections afforded by state laws, collective bargaining agreements, and institutional policies, such as staff and student handbooks. However, schools should ensure that steps to accord due process rights do not restrict or unnecessarily delay adequate relief to the complainant or injured party.50
PROTECTION OF CONFIDENTIAL INFORMATION. Make clear that personal information regarding the complainant, the alleged harasser and the witnesses will be protected from disclosure to the extent permitted by the investigative process and the nature of the complaint. Privacy laws preclude a school from releasing certain personal information about students.51 For a discussion of the factors that schools may consider in determining whether to honor a request for confidentiality, see Part II: Step-by-Step Guidance - Identifying and Responding to Incidents of Harassment.
TIME FRAMES. It will be helpful to designate time frames for the major stages of the complaint process. The district's procedure might designate a short time frame and allow extensions in exceptional cases with the approval of the superintendent.52
FINDINGS. Policies should require that the school determine whether the alleged acts of harassment occurred and whether that conduct constitutes a violation of the district's policy. Making and recording findings as to whether unlawful harassment occurred is critical whenever a formal complaint is filed. In this way, the complainant and the district are assured that the matter was fully investigated and that careful deliberations occurred.
If the conduct at issue is not found to be sufficiently severe, pervasive, or persistent to violate the district's policy, the district should still consider action geared to address the complainant's concerns. This will reassure the student that concerns related to perceived harassment are taken seriously and will help prevent repetition or escalation of any offensive behavior. If an appeal is provided for, provide training to the person(s) who will decide the appeal and include time frames for the decision. An appeal may be allowed for both the findings and remedy selected.
CORRECTIVE ACTION. Remedial action should be tailored to address fully the specific problems experienced at the institution as a result of the harassment. Remedial action should take into account the severity of the incident and the age of the parties and should be calculated to stop the specific harassment and prevent recurrence. See Part II: Identifying and Responding to Incidents of Harassment for additional information on remedies.
The Family Educational Rights and Privacy Act (FERPA) and its regulations preclude a school from releasing certain personal information about students.53 This may prevent the school from telling a complainant about the sanctions imposed on the perpetrator of harassment. However, the complainant should be assured that the corrective action taken is calculated to deter future harassment; if possible, the complainant should be told of any monitoring mechanisms put in place to prevent recurrence.54
Under federal policy, districts should informally resolve discrimination complaints, including complaints of harassment, only if the parties, after full notice of their rights, agree to do so. However, the complaining party should always be given the option of terminating the informal process and proceeding with a formal investigation. The district should consider whether there are instances in which informal mechanisms for resolution should not be used, for example, complaints of harassment of students by employees, complaints in which other students are also apparent victims, complaints that indicate possible threats to the safety of the complainant or other persons, and complaints of harassment that continued or reoccurred after previous informal resolution attempts. (For further information regarding use of informal resolution procedures, see OCR's Sexual Harassment Guidance, 62 Federal Register 12034 at 12045.)
EXAMPLE OF POLICY LANGUAGE ALLOWING INFORMAL RESOLUTION OF COMPLAINTS:
It may be possible to resolve a complaint through a voluntary conversation between the complaining student and the alleged harasser which is facilitated by a school employee or by a designated harassment complaint official. . . . Both the complaining student and the alleged harasser may be accompanied by a person of their choice for support and guidance. If the complaining student and the alleged harasser feel that a resolution has been achieved, then the conversation may remain confidential and no further action needs to be taken. The results of an informal resolution shall be reported by the facilitator, in writing, to the Superintendent and to the School Principal. If the complaining student, the alleged harasser, or the school employee/harassment complaint official chooses not to utilize the informal procedure, or feels that the informal procedure is inadequate or has been unsuccessful, s/he may proceed to the formal procedure. Any complaint against a school employee shall be handled through the formal procedure.
Source: State of Vermont Model Anti-Harassment Policy