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 program to prevent and eliminate harassment should include procedures for students to follow if they believe they have been subjected to harassment. In addition, each district should have in place explicit instructions (sometimes called "protocols") for employees to follow if they witness or otherwise learn of specific incidents. A district should also specify the actions school officials should take when they are informed of harassment. A repertoire of options, which consider the age of the student targets and perpetrators, are needed to respond properly and quickly to incidents of varying levels of severity, persistence, and pervasiveness.
Make sure that all administrators and staff understand when and how various response mechanisms should be used. OCR's experience is that noncompliance with federal laws prohibiting discrimination results in large part from the existence of procedures that, though "on the books," are virtually unknown to the majority of students, staff, and administrators. In other cases, the district's procedures for addressing allegations of harassment are not used because students and administrators incorrectly assume that the procedures are applicable only to the most severe instances of physical harm, but not to more common kinds of harassing behaviors. As a result, schools may not respond as required when there is a series of incidents in which each act of harassment, by itself, may not appear severe, but the acts of harassment cumulatively cause a hostile environment. A district's program for addressing incidents of harassment should include the following points.
A key ingredient of an effective program is the ease with which students and parents can let school officials know of their concerns. Students who encounter harassment often feel confused and helpless.38
Students need to feel comfortable approaching adults in the school about harassment and confident that remedial action will be taken in response.
Allow persons affected by harassment to report the harassment in more than one location to protect confidentiality and ensure impartiality. A good practice is for every building to have at least one person who has expertise in harassment issues to handle complaints of harassment. Encourage individuals of diverse backgrounds and both sexes to serve as complaint managers. Provide a simple form to minimize the need for lengthy written complaints, to focus attention on the critical elements, and to simplify periodic compilation of harassment incident reports.
ADVISE VICTIM OF ALL OPTIONS. Whenstudents express concerns about possible harassment, staff should be prepared to counsel them accurately and appropriately about their options and to identify the employees designated to accept and act on reports of harassment. The complaint should be treated seriously without casting doubt on the complainant's motives. When sexual harassment or harassment based on actual or perceived sexual orientation is alleged, staff should be especially careful to avoid any implication that the student's own behavior invited or provoked the harassment. In order to treat harassment allegations appropriately, all staff, particularly equity coordinators, teachers, counselors, coaches, school nurses, school safety officers, hallway monitors, and administrators who are likely to be informed of harassment, may need specific training.
INTERVIEW VICTIM AND MAKE REQUIRED REPORTS. When harassment is reported, the victim or witness should be thoroughly interviewed about the harassment, and the information obtained should be recorded. A victim of severe harassment, such as a sexual assault, will also need to be interviewed by representatives of other agencies, such as police officers. It is a good idea to explain this to the victim and to try to avoid duplicative interviews by school officials.
Staff at every level should know which school officials to notify of the incident and how to convey such information. Immediate evaluation of the report at the appropriate level of administration will enable the district to evaluate the risks posed by the reported incident and to initiate appropriate response mechanisms. For example, if a potential crisis situation exists, measures such as those outlined in Part II: Addressing Hate Crime should be considered. Depending on the nature of the conduct, the school may need to issue a statement denouncing the harassment or activate rumor control and additional safety measures.
REQUESTS FOR CONFIDENTIALITY. If a student requests confidentiality or asks that no action be taken, the school should inform the student that the request may limit the school's ability to respond and should remind the student of its policies against retaliation. If the student continues to request confidentiality, the school should carefully consider if the request should be honored. Some complaints of harassment can be investigated and resolved without releasing the student's name. In other instances, the school may need to consider whether the confidentiality request will limit its ability to remedy the harassment, or if honoring the confidentiality request will make it difficult for an accused to adequately defend himself or herself.
OCR's Sexual Harassment Guidance encourages schools to honor a student's request that his or her name be withheld, if this can be done consistent with the school's obligation to remedy the harassment and to prevent further harassment of other students. At the same time, the school should evaluate the request in the context of the school's responsibility to provide a safe and nondiscriminatory environment for all students. Factors that may be considered in determining whether the school should honor the request for confidentiality include the age of the student, the seriousness of the alleged harassment, whether there have been other reports of harassment by the alleged harasser, the possibility of harm to other students, and the rights of the accused individual to receive information about the accuser, if a formal proceeding may result. The school should be especially careful in evaluating confidentiality requests accompanying complaints of conduct that may endanger the student or other persons. Schools should explain to students that they may not be able to honor such a request in situations where the student, or other students, are at risk. In any event, schools should seek advice from legal counsel prior to releasing the name of a student, without consent, as the Family Educational Rights and Privacy Act (FERPA) may apply.39
Even where not requested, confidentiality regarding the person reporting the harassment should be maintained as long as doing so does not preclude the school from responding effectively. The confidentiality of the injured party, the alleged harasser and any witnesses should be maintained unless release is required to resolve the matter. School districts should notify the parents or guardian of students who allege harassment when the best interests of the student so require. In making a decision as to whether to notify a student's parent or guardian, staff should consider all of the circumstances, including the age and wishes of the student. For example, a student experiencing harassment based on sexual orientation may be dissuaded from reporting the harassment if the student's parent will be notified.
INTERIM PROTECTION. Interim action to protect the target of harassment, such as separation of the parties, may be necessary even before completion of an investigation. An immediate referral to sources of victim assistance, such as a school social worker, psychologist, counselor, or outside agency may be warranted. Persons reporting harassment should be reminded of the rules against retaliation and of the procedures in place for protecting the student from reprisal, including specific information on reporting any retaliation.
Harassment because of associationRecognize that persons who are not themselves members of the group singled out by the harasser's animosity may be harassed. For example, a hostile environment may be created for students who are harassed because of their association with individuals who are members of such groups.
UNWRITTEN REPORTS AND COMPLAINTS. A district should respond to all incidents of reported harassment, even if the student does not wish to file a formal or written complaint. A district should respond to complaints and reports of harassment that are brought to its attention not only by the students who are the immediate targets of harassment, but by student witnesses and parents or guardians and friends of affected students. All reports of harassment and the school's response should be carefully documented.
REQUIRED REPORTING. The absence of student complaints does not mean that harassment in a school is not occurring. Harassment can be expected to be a part of the school environment unless all school staff are required to report instances of harassment that they are told about or observe themselves. Staff who witness, overhear, or are told about harassment should be told to report such incidents to an official with the authority to take corrective action.
The directive that staff report harassment may be included in the district's written harassment policy and procedures or addressed separately in written personnel policies. In either event, the policy should state the consequences to employees of failing to follow the district's reporting requirements. As in the case of harassment alleged by students and parents, harassment reported by staff must be investigated promptly and responsive action taken.
INTERVENTION TO STOP HARASSMENT. Make clear to staff and building administrators the types of harassment concerns which they should handle themselves and the types which should be handled at a higher level. The school district should train staff how to stop harassment that occurs in their presence. In order for district and school officials to discern patterns of harassment and identify repeat offenders, all incidents should be reported to a district coordinator, including incidents that teachers have handled themselves. Teachers who suspect harassment, but have not observed it or been told about it, should discuss their concerns with the student and, if harassment by an adult is suspected, report it immediately.
MONITOR DISCIPLINE REFERRALS. Some incidents of harassment may come to the school's attention as a result of fights or other misconduct on the part of the target of the harassment as well as the harasser. For example, when racial, ethnic or similar slurs are used in or before a fight between persons of different groups, school officials should determine whether any aspect of the event or the precipitating circumstances are covered by the district's anti-harassment policies. If so, the responses outlined here should be considered and, if appropriate, used.
On-the-spot responses by school staffThe lack of a strong, immediate response by a teacher or administrator who is aware of the harassment may be perceived by a student as approval of the activity or as an indication that the student deserves the harassment.
MONITOR THE SCHOOL ENVIRONMENT.School administrators may request staff to periodically examine particular environments or activities and report their observations. Harassment more commonly occurs in less supervised or structured settings such as recess, school buses, locker rooms, and hallways. Harassment may also more frequently occur in settings in which only a few students of a certain group are present, such as girls enrolled in a vocational education course.
Custodial staff should be reminded to tell school officials when they find graffiti related to race, national origin, sex, disability, or other kinds of slurs that are of concern to the district, such as slurs related to sexual orientation and religion. In such instances, provide clear instructions regarding removal. (See Part II: Addressing Hate Crime for information regarding preservation of evidence for investigation.)
Also, sexual harassment among students may be so widespread that, without substantial training and regular reminders, neither students nor teachers are likely to report it. Regular monitoring of the school environment will produce information that the school can use to develop prevention strategies.
When school officials receive a complaint or report of harassment that is criminal in nature or that could lead to in-school or out-of-school violence, law enforcement authorities should be alerted immediately. Districts should make known to appropriate administrators the specific types of harassment activity that should be reported to law enforcement authorities. It is advisable to put this policy in writing. A district may wish to designate a particular individual to screen all reports and complaints of harassment to determine if law enforcement officials should be notified. See Part II: Addressing Hate Crime for a full discussion of the circumstances in which incidents of harassment should be reported to law enforcement authorities.
School officials should advise students and their parents of available law enforcement options and sources of outside help. For example, in some states the attorney general might be able to obtain an injunction against further criminal and noncriminal civil rights violations. If the civil rights violation recurs, the perpetrator would be subject to enhanced penalties. Where appropriate, school officials should assist the student or parent to pursue the appropriate relief. However, a law enforcement referral or pursuit of law enforcement remedies by the victim does not alleviate the district's responsibilities to investigate the allegations of in-school harassment and take remedial action.
TYPES OF INVESTIGATION. All reports of harassment should be promptly investigated. The investigation should be undertaken by persons not likely to encounter a conflict of interest.
The type of response and the procedures to be used may depend on a number of factors: whether the report of the incident came from the targeted student or from an observer, such as a teacher; whether the student or parent wishes to file a formal grievance; the reporter's desire for confidentiality; the seriousness of the incident; whether the alleged harasser is a student or employee; the age of the students involved; and whether only an isolated incident is involved or the incident might be part of a pattern of harassment. Related incidents could include other instances in which the target was harassed, either by the same or a different person; instances in which the alleged harasser targeted other students; and instances of harassment, by other perpetrators, directed toward members of the target's group.
A district will probably use its usual procedures for investigating and penalizing student misconduct when a staff person observes specific acts of harassment by one student against another student. When a student or parent files a written complaint, the procedures discussed in Part II: Formal Complaint Procedures should be followed. An informal process of mediation may be appropriate, as long as the parties understand all of the options for resolution.
When a student reports harassment, but refuses to file a written complaint, schools should, at a minimum, initiate an administrative inquiry to determine if other persons are affected and if corrective action is needed. For example, if a student athlete reports racial harassment on a sports team from teammates, but refuses to file a complaint even after being informed about the district's complaint procedures and prohibition against retaliation, an administrator can still conduct an inquiry to determine whether the team's supervision is adequate and appropriate and identify and address any factors contributing to the reported concerns.
It is advisable for the district's anti-harassment policy or a written protocol to set forth the options for responding to reports of harassment. A chart can be useful to outline the alternative methods of response and the steps involved in each alternative.
SCOPE OF INVESTIGATION. All investigations and inquiries should attempt to identify all of the perpetrators and victims; determine whether there are other related incidents of harassment; identify and evaluate the kinds of present and future damage that may have been caused by the harassment, including harm to the victim, the harasser, and the school environment; and consider all of the other factors necessary for complete corrective action.
IMMEDIATE, APPROPRIATE CORRECTIVE ACTION. Remedial action by the district should be taken as soon as possible and take into account the severity of the incident and the age and identity of the person harassed and the harasser. Whether the harasser is a student or employee, remedial steps, including discipline, where appropriate, should be calculated to stop the specific harassment and prevent recurrence. If harassment continues, stronger responses should be employed. Schools should consider all of the kinds of actions that will be necessary to fully address the specific problems experienced at the institution as a result of the harassment.
REMEDYING HARASSMENT BY STUDENTS. Where a student commits harassment, punishment of the student is often appropriate. Punishment of the harasser sends a message to the victim and other students that harassment is a serious violation of school rules.
In some school districts, policies against discriminatory harassment will provide for disciplinary sanctions. If the district's anti-harassment policy does not itself contain penalties for harassing behaviors, the policy should cross-reference other policies of the district such as the student discipline code. When a violation of the district's anti-harassment policy occurs, officials may then use the student discipline code to punish conduct under offense categories such as vandalism, obscene or vulgar language, theft, assault, or unwelcome physical contact. The discipline code may contain enhanced penalties for such offenses when the misconduct is motivated by bias. Even if the discipline code does not explicitly provide for enhanced penalties, the punishment administered under the discipline code should be consistent with the severity of the misconduct and consider the extent of harm to the victim and the school community. The discipline code may also identify specific offenses, such as harassment that results in discrimination or a hostile environment based on race, sex, disability, or other specified bases of discrimination.
Districts should be sure that their disciplinary procedures adequately provide for discipline of students who commit unlawful harassment. For example, some schools may have policies that could make it more difficult to punish students for certain offenses unless an adult observed the conduct.
If appropriate, consider that the harasser, as well as the target of the harassment, may need help. An offender counseling program or restitution program may help perpetrators dispel stereotypes, prejudices, fears, ignorance and other contributors to harassment. It may be appropriate to involve the perpetrator in efforts to repair the damage caused by the harassment.
REMEDYING HARASSMENT BY STUDENTS WITH DISABILITIES. Harassment by students with disabilities must also be stopped and recurrence prevented. Schools may use some disciplinary sanctions with such students; however, the corrective action used must be consistent with the laws governing discipline of students with disabilities.40 In addition, where the student offender's harassing behavior is related to the disability, schools may utilize their evaluation and placement procedures to consider whether a change in the student's placement or individual education plan is appropriate.
REMEDYING HARASSMENT BY STAFF. When an employee commits harassment, districts should consider the advisability of various kinds of remedial action. The district should be sure that its personnel policies, collective bargaining agreements, and staff codes of conduct are adequate to deal with unlawful harassment by teachers, administrators, and other employees, including provisions for discipline or removal.41 Where a district employee perpetrates harassment, an apology by the district may be in order. Offender rehabilitation programs may be appropriate. Repeated or serious instances of harassment generally warrant stringent sanctions.
RESTORE A NONDISCRIMINATORY ENVIRONMENT FOR THE VICTIM OF HARASSMENT. Other kinds of remedial action that may be necessary or appropriate to prevent additional incidents of harassment by students or employees include regular observation of the victim's classes and activities; changes in the activity in which the harassment occurred, including increased adult supervision or video monitoring; a transfer or change of school or class assignment for the harasser; exclusion of the harasser from particular extracurricular activities; increased parent involvement; and required sensitivity training, counseling, an apology, community service, and psychological or medical assessment of the harasser.
Even when the district does not know who is responsible for harassment, the district should take reasonable steps to remedy it. For example, if the perpetrator of graffiti cannot be identified, the district can seek to locate new graffiti and remove it (or cover it up and preserve as evidence, as appropriate). Further, the district should consider instituting oversight mechanisms to help it to identify the perpetrator if the graffiti reappears.
The person reporting the harassment should be informed when the district has taken remedial action. Privacy laws may prevent the district from telling the complainant of any sanctions imposed.42 However, the complainant should be assured that, while the district cannot guarantee the student's safety, the corrective action is calculated to deter future harassment. Tell the complainant how to report any future incidents, and inform the complainant of any changes in procedure or supervision that will be made.
EMOTIONAL AND PSYCHOLOGICAL SUPPORT. Students experiencing harassment may continue to suffer psychological problems, including impaired self-esteem, even after the harassment has ended. Encourage the student and the student's parents to consider treatment, where appropriate. The target of the harassment should be offered school services, such as counseling, or referred to publicly available sources of victim assistance, such as rape crisis centers, state victim assistance agencies, and other victims service agencies in police departments, mental health agencies, and prosecutors' offices.
INSTITUTIONAL REMEDIES. Consider the need for institutional remedies or changes, particularly where a pattern of harassment exists. Institutional remedies could include increased supervision, additional training of students and staff, changes in classroom or other school procedures, statements of nondiscrimination issued by school officials, and initiation of curricular and extracurricular programs to reduce prejudice and conflict.43
Carefully evaluate requests by victim to transfer to another class or schoolThe burden of ending the harassment should not be placed on the victim. For example, transfer of the victim to another class or school to stop the harassment is rarely appropriate, unless specifically requested by the student. The school should evaluate any such requests to make sure the student understands that other options exist to end the harassment. If the victim nevertheless prefers to be transferred, the school must take steps to prevent repeated acts of harassment by the perpetrator against other students.
If the district has not been successful in stopping or remedying the harassment using existing options, changes may be needed in other district policies or commitments, such as the discipline code, personnel policies, and collective bargaining agreements.
If the conduct was not sufficiently severe, pervasive, or persistent to violate the district's anti-harassment policy, the district should still consider action geared to address the target's concerns to prevent recurrence and indicate that unlawful harassment will not be tolerated. Consider use of an informal resolution process, such as mediation, or the application of other district policies, such as the discipline code, to the acts in question. Also consider whether further sensitivity training is needed for all students in the environment in which the objectionable conduct occurred.