Discriminatory harassment and bullying: a definitional sticky wicket?
Original post made on Jun 14, 2013
Read the full story here Web Link posted Friday, June 14, 2013, 8:26 AM
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.
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"
on Jun 14, 2013 at 4:30 pm
"Discriminatory harassment and bullying: a definitional sticky wicket?"
However well-written, it hurts to read that #:^)