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Discriminatory harassment and bullying: a definitional sticky wicket?

One term is overused while the other is spelled out in federal law

This story is part of an in-depth package of stories on the subject of bullying in Palo Alto schools. For links to all the stories, follow this link.

Definitional issues, as technical as they are important, have occupied much discussion among Palo Alto school board members, administrators, lawyers and the public in the wake of the Office for Civil Rights report. What does "bullying" mean within the law, and how does it relate to students' civil rights?

"The policy issue is clearly a complicated one, with all of the conflicts between federal and state law requirements," wrote Dora Dome, one of the district's attorneys and leader of staff training, in a March email to the Office for Civil Rights.

Part of the confusion arises from the word's increased popularity and the public's tendency (fueled by the media) to apply it too broadly. This is what Emily Bazelon, senior Slate legal editor and author of Sticks and Stones, argued in a New York Times op-ed in March: "(The word) is being overused -- expanding, accordion-like to encompass both appalling violence or harassment and a few mean words. ... The misdiagnosis of bullying is making the real but limited problem seem impossible to solve. If every act of aggression counts as bullying, how can we stop it?"

In a later column in Pyschology Today (March 31), Bazelon drew a distinction between the overused definition of "bullying," on the one hand, and the consistently clear definition of "discriminatory harassment" under federal discrimination laws. She urged care in "distinguishing discriminatory harassment from other kinds of bullying. In the case of discriminatory harassment (based on race, disability, sex, etc.), the law is clear and so are the definitions. The federal Department of Education wrote a letter to schools reminding them of their obligations in 2010, and it sets out clear guidelines for shielding students from bullying that's based on what's really discrimination."

So, according to Bazelon, the definition of bullying has been bastardized, but the definition of discriminatory harassment is clear and always has been. This requires some deconstruction.

The standard definition of "bullying" among educators and psychologists comes not from the law but from a Swedish psychologist, Dan Olweus, according to Bazelon. While researching aggression among youth during the 1960s, Olweus identified a whole range of cruel behaviors but found a particularly wounding form of aggression he labeled "bullying." This behavior had three basic elements: verbal or physical aggression; repetition over time; and a power differential.

"A onetime episode of meanness or violence could be bad in the moment, but it was the repetition and the power imbalance that were most often associated with lasting, scarring impact. Bullying, as Olweus defined it, was the behavior that constituted real abuse in the eyes of the children themselves: a serious rupture in their lives with potentially devastating consequences," Bazelon wrote.

California law does not contain a definition of prohibited "bullying" conduct, except to the extent that it outlines school findings necessary for the most severe disciplinary consequences, as stated in Education Code section 48900(r). In order to suspend or recommend expulsion, a school must find "bullying" that fits these requirements:

"Severe or pervasive physical or verbal acts or conduct, including communications made in writing or by means of an electronic act ... directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following:

(A) Placing a reasonable pupil or pupils in fear of harm to that pupil's or those pupils' person or property.

(B) Causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health.

(C) Causing a reasonable pupil to experience substantial interference with his or her academic performance.

(D) Causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities or privileges provided by a school."

Federal law does not directly address bullying. However, both California and federal law prohibit "harassment" of students based on legally protected attributes (race, sex, disability, etc.). "Harassment" is defined as conduct that creates a "hostile environment" that limits students from participating or benefiting from school activities or services and can include conduct that might also be considered "bullying" under the Olweus or other definitions.

California Education Code section 48900.4 provides that the school may suspend or recommend for expulsion students in grades 4 to 12 when the school has determined that "the pupil has intentionally engaged in harassment, threats or intimidation, directed against school district personnel or pupils, that is sufficiently severe or pervasive to have the actual and reasonably expected effect of materially disrupting classwork, creating substantial disorder, and invading the rights of either school personnel or pupils by creating an intimidating or hostile educational environment."

While "harassment" conduct may overlap with what is known as "bullying," it is not the same as bullying. The concept of bullying is based on a psychological construct designed to identify the most emotionally harmful behavior; by contrast, harassment is a legal construct designed to protect certain students from discrimination. Harassment, which may include bullying, may also include conduct outside the standard definition of bullying; for example, harassment under federal law does not need to be directed at a specific target, is not necessarily motivated by intent to harm and is not always repeated.

Under federal law, the types of discriminatory conduct outlawed in the educational settings are those based on race, color, national origin, sex, age and disability. (See "Office for Civil Rights: Why is it there and what does it do?").

California law expands on the federal categories of protections to also include: gender, gender identity, gender expression, nationality, ethnicity, religion and sexual orientation.

School districts may be in violation of federal law when peer harassment based on race, color, national origin, sex or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed or ignored by school employees. California law has similar anti-discrimination requirements (but with the expanded list of categories).

Under federal and California law, prohibited discrimination does not necessarily involve targets with the specific protected attributes; instead the protections are focused on the basis for the discrimination, which can include harassment directed at someone perceived to have that characteristic (e.g., a heterosexual perceived to be gay) or associated with a person or group with one of the listed actual or perceived characteristics (e.g., a brother or close friend of a disabled student).

On Oct. 26, 2010, as Bazelon noted, the U.S. Department of Education sent a "Dear Colleague" letter to all districts receiving federal funds (including Palo Alto) addressing the issue of bullying and how it relates to discriminatory harassment under federal law. The letter reminded schools that while certain conduct might be labeled as "bullying" and covered by local anti-bullying policies, some of that same conduct "also may trigger responsibilities under one or more federal antidiscrimination laws." It warned that by "limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment." The letter provides a comprehensive re-cap of what federal law specifically prohibits and what schools' response obligations are to discriminatory harassment.

The Office for Civil Rights lawyers visiting Palo Alto on May 16 for the community educational event at Ohlone Elementary School covered these issues in detail in their presentation about federal civil rights law.

According to the Office for Civil Rights' "Dear Colleague" letter, "When the behavior implicates the civil rights laws, school administrators need to look beyond simply disciplining the perpetrators. While disciplining the perpetrators is likely a necessary step, it often is insufficient. ... Put differently, the unique effects of discriminatory harassment may demand a different response than would other types of bullying."

This distinction between bullying and harassment -- where behaviors can overlap, but legal responsibilities are quite different -- can be difficult to grasp. In the Weekly's fall interviews with 13 principals, many used the terms "bullying" and "harassment" interchangeably, and when asked, had differing definitions.

Palo Alto's current board policies are little help as they do not define bullying (see "New district policies and procedures"). However, a few of the schools' handbooks do. For example, Barron Park Elementary School defines bullying as "unfair, one-sided and on purpose. It happens when one or more people keep hurting, frightening, teasing or leaving someone out." Other handbooks use different formulations.

Gunn High School Assistant Principal Trinity Klein said: "Bullying and harassment, for working purposes, don't differ very much. It is one person acting in a way towards somebody else that that person feels uncomfortable with. ... What we always try to emphasize is that how the perpetrator intends it to come across is not relevant. What is relevant is how the person receiving the words or actions feels." Other principals focus more on student intent, how a "reasonable" student would react, or other factors.

Some principals described what they saw as the differences between the two terms, but these descriptions were not consistent from school to school and at times did not seem to reflect the law.

For example, last October, Terman Middle School Principal Katherine Baker told the Weekly: "Bullying is separate from harassment. Bullying can be as benign as rolling your eyes, put downs of other people. It can be excluding them socially in a group. It can be physically bullying them, blocking their way, pushing them, shoving them. ... Harassment is where it happens more than once, when you've told them to stop and they continue to do it. ... Kids are a bully to many different kids, but harassment is when you are targeting somebody, and you're doing it over and over again."

As the Office for Civil Rights report found, this interpretation misconstrues the law.

These differing understandings exist not only among principals but also among teachers, parents and others who work with students, as well as students themselves, according to Weekly interviews. Any survey of teachers and administrators that includes questions about bullying definitions will typically reveal this definitional hodge-podge within a school community, according to bullying expert and Stanford University Adjunct Clinic Faculty Psychiatrist Tom Tarshis, who has worked with Palo Alto schools and parent groups in the past. Such a survey can be an eye-opener and motivator to develop a common policy and practices on these issues, according to Tarshis.

Many school officials shy away from use of the word "bullying." The label carries stigma. Many students don't relate to it well; some teens especially consider it an adult construct irrelevant to their lives and weighty with baggage, according to Weekly interviews.

Micaela Presti, former Palo Alto parent and PTA Council leader on these issues, said: "I don't like the word 'bullying.' It's so negative, and people just hear it and they think, 'Well, that's not my child.'"

Despite aversion to the word "bullying," the need for consensus around a common definition has been one of the frequently mentioned goals of the Palo Alto principals' March training, the secondary-student instruction this spring, and also the new bullying policies still in development (all of which were measures undertaken pursuant to the terms of the Office for Civil Rights resolution agreement).

This consensus is difficult to reach, however. For example, the district and the Office for Civil Rights had difficulties coordinating the definitional message for the required spring secondary-student instruction, according to documents provided to the Weekly by the district. On March 15 the district presented to the federal agency five different plans for each of the secondary schools.

"Each site has taken ownership and created lesson plans which take into consideration the culture and community of the respective school," wrote Holly Wade, district director of special education. Despite the district's stated goals of common language and consistency across the schools, the district apparently continued to defer to school autonomy in development of the student trainings. The volume of paperwork alone, including the Office for Civil Rights' meticulous comments on each school's program, illustrates some of the inefficiencies and difficulty in oversight of such a site-based system.

Also, the schedule for student instruction included in the district's package to the Office for Civil Rights showed that the JLS Middle School instruction had already occurred on March 6 (the rest were scheduled later in March and April), which became a problem because the Office for Civil Rights did not agree with the bullying definition utilized in the JLS presentation. In an email on March 26, Office for Civil Rights staff expressed concern that the JLS training had occurred before the federal agency had had an opportunity to review it: "We'd like to remind the District that there does not need to be a power imbalance ... and (that) even one instance of harassment can create a hostile environment in violation of federal civil rights laws."

The Office for Civil Rights asked for a plan from the district to provide corrected information to students about the definition of bullying that constituted discriminatory harassment.

On April 12, the district proposed that an announcement be made to all students at the middle school level with a corrected definition. The federal attorneys reviewed and approved the proposed announcement, with some changes, as follows:

"Students, last month you received training on bullying in school, specifically as it relates to disability-based harassment. The following is a definition of bullying. Last month we indicated that there needed to be an imbalance of power for bullying to occur. Please disregard that definition, and rely on this one. If you have questions, please ask your teacher.

• Bullying can be physical or verbal conduct that happens once or is repeated over time.

• Bullying can be sexual harassment or harassment that targets someone based on protected status, like disability, race or sexual orientation

• Bullying can be conduct that creates a hostile or intimidating educational environment for other students.

According to Wade, this message was delivered to all the middle school students this spring. In addition lessons were delivered to both high schools in May.

Palo Alto High School Principal Phil Winston told the Weekly that he has never seen bullying that was not based on the characteristics protected by discrimination laws.

"If you take the time and are patient enough to strip it away, absolutely," he said. "I've never not seen it that way."

If that holds true, or even mostly true, for other principals, then most bullying situations are likely to trigger civil rights obligations under anti-discrimination laws. It is this additional lens on any reported or witnessed incident that administrators, teachers, parents and students are now learning bears close attention as a result of the Office of Civil Rights involvement in the Palo Alto bullying cases.

Sources: U.S. Department of Education Office of Civil Rights "Dear Colleague" letter sent to all school districts on Oct. 26, 2010; California Education Code sections 234 et seq. (known as "The Safe Place to Learn Act"); and California Department of Education brochure (July 2012) "Prohibition of discrimination, harassment, intimidation and bullying in California Public Schools."

Return to "Out of the shadows" index of articles

Comments

 +   Like this comment
Posted by Edmund Burke
a resident of Another Palo Alto neighborhood
on Jun 14, 2013 at 1:43 pm

This is a well-done summary of the law. However it presents the material in a way that makes it appear somewhat more complex than it is. The key points is:

State and federal law regarding discriminatory harassment do not differ. The only real difference difference is that state law bars harassment based on religion while federal law does not. Both state and federal law prohibits sexual orientation and gender identity discrimination though state law does so directly while federal law does so through the rubric of sex discrimination under Title IX. The other state categories of ethnicity and nationality are captured by federal categories of race, color, and national origin. State and federal law are (with the exception of religion, not at issue in Palo Alto thus far) entirely consistent on the substantive law of discriminatory harassment. Indeed, state court cases interpreting Ed. Code section 220, which is the state bar on discrimination, follow federal anti-discrimination law and this makes even the caselaw consistent.

I am concerned that by repeating the district perspective that the law is complicated and contradictory that this story might run the risk of obfuscating rather than shedding light on this single important point.

In addition Phil Winston makes an excellent point that should not be overlooked, which is that all or nearly all bullying has discriminatory elements once the investigation is completed. Therefore, the district's misguided effort to treat nondiscriminatory bullying to a site level process and discriminatory bullying to the legally mandated UCP is destined to result in procedural and substantive errors and denial of student civil rights. That will lead to future complaints and more litigation. The advice that the district is receiving from its counsel that it need not apply the UCP in all cases is asking for problems down the road -- problems that perhaps not coincidentally will be resolved with billings from the same district counsel.

Well done story in which many difficult regulations, policies, and statutes are parsed.


 +   Like this comment
Posted by wrong
a resident of Charleston Gardens
on Jun 14, 2013 at 3:21 pm

Bullying is teasing, excluding, etc over a prolonged period by the same person. It's not refusing someone to eat lunch with you on a Tuesday. That's just a personal choice by the person to not have lunch with you.

Harassment is based in discrimination. Completely different. More severe in standing, but perhaps not to the "victim"


 +   Like this comment
Posted by Chris Zaharias
a resident of Crescent Park
on Jun 14, 2013 at 4:30 pm

"Discriminatory harassment and bullying: a definitional sticky wicket?"

However well-written, it hurts to read that #:^)


 +   Like this comment
Posted by paly parent
a resident of Palo Alto High School
on Jun 14, 2013 at 9:44 pm

PAUSD is no different than most other districts and from my experience, better than most. Bullying and harassment is terrible and there is no excuse for what happened to the Terman student. But if the adults involved are not clear on what constitutes bullying (from a legal standpoint) how on earth can we expect a middle school student to know what is federally illegal bullying and what is simply being a little "s***" like a lot of middle school kids.

If you are tall, attractive and athletic in middle school you are golden. If you are short, under-developed, quiet, quirky, have braces, stutter etc. you are a target. If you are a kid that is annoying, hard to work with as part of a group, or even the slightest bit different, middle school is hard. And how are fellow students able to know whether their classmate is being a pain because that is their age appropriate behavior or if they act as they do because of a disability if they don't know a kid is disabled.

More adults in a classroom help, but if you have an aide, you are labeled special ed and most middle school kids want no part of that. Its a tough problem.


 +   Like this comment
Posted by Palo Alto Native
a resident of Palo Alto High School
on Jun 15, 2013 at 10:52 pm

Agree with "paly parent" that middle school kids can be little sh**s. And when I grew up, we accepted that others are mean at times and let it roll off our shoulders instead of whining to our parents. Is it right for parents to overreact and sensitize their children to be hurt by every mean/sarcastic comment? Isn't it better that they can brush it off and move on?

It seems us laymen view bullying and harassment as synonymous, defined as: continually negatively bothering the same student. If a student hits another student for whatever reason, is it bullying when it's a one-time altercation with one student? I don't define it as bullying while others do. There was a boy in kindergarten who went around hitting various students and it took 6 months for him to finally be kicked out and sent to an LD school. This boy was sent to the office 3-4 times per week and it took 6 months. Was it bullying when it was different children he hit?

I do disagree with "If you are short, under-developed, quiet, quirky, have braces, stutter etc. you are a target. If you are a kid that is annoying, hard to work with as part of a group, or even the slightest bit different, middle school is hard." My children know plenty of students as such and they are not bullied. In fact, some of them are "popular." PAUSD isn't so harsh; this is the place to be if one is a nerd and has been a safe haven for nerds for decades. Not sure why some students are bullied and others are not. One common trait seems to be that students who are bullied have gentle personalities, ie, no one is going to mess with anyone with a strong personality or athletic stature.

Shouldn't our children learn how to behave properly and be guided by parents? In life, oftentimes it's the well-liked people who are promoted, not necessarily the most intelligent or hardest worker.


 +   Like this comment
Posted by No kids in PA or middle schools
a resident of Mountain View
on Jun 17, 2013 at 3:20 pm

I'm curious if any of the above posters have kids who are mean, or who are bullies. It's easy to say that we should brush it off and move on, but if instead we stand up to these kids, teach them to be nice, maybe we would not have such awful people in our government, banks, corporations. It may be that I just read BofA is being sued for foreclosing on people's houses illegally, rewarding employees who "lost" paperwork - wonder if those employees and those top management were bullies in school? Sure parents have a responsibility here, but so do fellow students who, if not bullies themselves, are letting things go.


 +   Like this comment
Posted by Alexis smith
a resident of another community
on Jun 19, 2013 at 6:26 pm

I would like to say something about the fact that kids get bullied for the gender that they like....i mean come on if a girl wants to like another girl then let them be..if a voy wabts to like another boy let them be..i mean love is love and they day if you love someone ageweight distance is just a number well they should also say that gender shouldn't matter either...i have been bullied for being bisexual and i will take a stand for anyone that is being bullied for likeing the same gender


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