The new policies are in many ways a vast improvement over the district's outdated policies governing complaint procedures; discipline; discrimination; hate-motivated bullying; and sexual harassment, which are conflicting and, as OCR found do not implement the law correctly.
However, some concerns remain. The policies create a complex, two-tier system of procedures in which children who are the victims of "regular" bullying are accorded lesser protections than those who are bullied based on a "protected" characteristic (i.e., disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics).
The California School Board Association recommended strongly against using a two-tier system, and the federal Office for Civil Rights also frowned on Palo Alto's proposed policy after reviewing it. However, Palo Alto went ahead with the two-tier framework.
First Tier. In PAUSD's proposed policy, children who are bullied based on one of the traits listed above will receive first-tier protection. Their claims are investigated and documented by the district Compliance Officer under the Uniform Complaint Procedure (UCP). The UCP is a procedure mandated by the state that every school district must follow in handling certain kinds of complaints, including complaints of discriminatory bullying.
Under Palo Alto's revised version of the UCP, any school staff member who witnesses or otherwise learns about any alleged act of harassment based on a protected status is required to report it to the principal within one school day. The principal must then forward that complaint to the District Compliance Officer within two days so that it can be documented and investigated. Parents must be notified. Parents and students can also file written complaints directly with the Compliance Officer.
State law requires that records must be kept of UCP investigations and resolutions, in part so that districts can be audited to ensure that students are protected from discrimination. Districts must investigate promptly, protect the confidentiality of victims, allow the complaining party to meet with the investigator and present evidence and information regarding the alleged discrimination, respond within 60 days, issue a written decision that includes specific elements such as findings of fact and conclusions of law, and inform complaining parents that the decision is appealable to the California Department of Education (CDE).
Palo Alto's new UCP also incorporates aspects of federal law. It provides that the Compliance Officer must meet with the victim and his or her parents, and then interview a host of relevant witnesses including the accused student, his or her parents, all witnesses, and "anyone mentioned as having relevant information," and review all notes, records, and statements related to the case. Interviews of the alleged victim and perpetrator are to be conducted separately, and confidentiality is protected. Even if the victim does not want to file a complaint, the district may be required to investigate in order to protect the safety of the school environment. The Compliance Officer must determine whether interim accommodations are necessary to protect the victim and address the effects of the bullying during the period of the investigation, and must address the need for longer-term accommodations in the final written decision.
The many procedural protections of Palo Alto's new UCP are intended to ensure prompt, thorough, and equitable resolution of discrimination complaints as required by law.
Second Tier. By contrast, students who are bullied based on a non-protected status, or who are bullied for no reason at all, are handled under the second-tier rules. They will receive far less procedural protection in Palo Alto. Their complaints will be handled under a brand-new process, drafted earlier this year by district lawyer Dora Dome, called the "Site-Level Complaint Investigation Procedures."
This includes children like Rebecca Sedwick, the 12-year-old Florida girl pictured above who took her own life after she was severely bullied by classmates over a period of more than a year. Rebecca was not bullied due to being a member of a protected class but was reportedly singled out by another girl because they liked the same boy.
One example of the reduced protection under the Site-Level procedure is that district staff are not required to report incidents of bullying that they learn about. A teacher who receives a bullying complaint is not specifically mandated under the "Site-Level" procedure to report that complaint to anyone. In fact, staff are only required to report the most serious instances of abuse, and only then if they have directly witnessed them.
To be clear, this means that under the district's new bullying policy, a teacher can be fully aware of bullying that is happening in his or her classroom but does not have to alert the principal or the parents involved if the bullying does not appear to the teacher to be especially severe or based on a protected characteristic.
The Site-Level procedure provides that any member of a school community may "file" an oral or written complaint with the school's principal (The treatment of email is not mentioned even though it is likely the medium for a great many bullying complaints.) As noted above, there is no requirement that staff report complaints to the principal, or notify parents. Principals who receive complaints are to notify parents and begin an investigation as soon as possible, and issue a written decision within 15 days. There is no requirement that the principal interview anyone (but if the alleged target and accused student are interviewed, they must be seen separately). Both parties have the right to appeal the decision to the district's Student Services Coordinator, Brenda Carrillo, within 15 days. However, there are no guidelines for conducting the appeal or criteria for the decision, there is no deadline for Carrillo to issue a determination, and there is no right to appeal to CDE.
According to Dome, this differential treatment of bullying victims depending on their race or disability or sexual orientation is perfectly legal. And in fact, both federal and state law currently place great emphasis on ensuring that our schools are free of discrimination, including bullying based on discriminatory motives.
Anti-Discrimination Law. Title VI of the 1964 Civil Rights Act prohibits race, color, and national origin discrimination in schools receiving federal funding.Other similar federal laws prohibit discrimination on the basis of sex, and disability. The State of California also has an extensive statutory framework prohibiting discrimination in education, including Seth's Law, which addresses discriminatory bullying similarly to federal law but extends that protection to more categories such as religion and sexual orientation.
There are good reasons for this focus, given our country's history of discrimination and cruelty toward minorities and women. Research indicates that disabled children, for example, are
two to three times more likely to be the victims of bullying than non-disabled peers.
Gay youth also appear to be
bullied at far higher rates than their non-gay counterparts. 61% of LGBTQ youth reported feeling unsafe in their school environments and 44% reported being physically harassed due to their perceived sexual orientation. Meanwhile, a 2006 Massachussetts survey found that gay students were more than twice as likely as non-gay students to attempt suicide.
These statistics suggest that there is a legitimate basis for focusing the law's attention on discriminatory bullying. That could change in the future as research reveals more about the incidence and impact of bullying across demographic groups, but at this time the law simply does not provide the same level of protection from "ordinary" bullying that it does from disability or gender harassment.
But that does not mean it's a good idea for schools to incorporate this difference into policies. California law specifically allows districts to utilize the UCP in cases where it is not mandatory such as "ordinary" bullying.
Just because something can be done does not mean that it should be done. And in this case there are good reasons that it should not.
Next: Why the two-tier bullying policy will cause kids to fall through the cracks.