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Discriminatory harassment and bullying: a definitional sticky wicket?

Original post made on Jun 14, 2013

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?

Read the full story here Web Link posted Friday, June 14, 2013, 8:26 AM

Comments (7)

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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.

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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"

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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 #:^)

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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.

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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.

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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.

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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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