By Priscilla Winslow, CTA Assistant Chief Counsel
Standing up for students who are harassed or bullied by their peers isn’t just good policy and an ethical duty; it is required by state and federal law. Failing to do so can have dire financial consequences for both teachers and school administrators who ignore student hate crimes or harassment.
Just ask any of the administrators who were personally sued by several students who were either gay or lesbian or perceived to be by other students in the case Flores v. Morgan Hill Unified School District. The plaintiffs complained to principals and assistant principals about harassment and bullying they suffered, including being physically beaten by students who yelled, “Faggot, you don’t belong here.” Two girls who had started dating each other in high school were verbally harassed by boys in the school parking lot.
In both instances, when the students complained, the administrators responded in a perfunctory manner, such as urging the students to report the incident to the campus police, but failing to follow up. The boy who was beaten up was transferred to another school, and only one of his six assailants was punished. The court held that the administrators could be held liable for failing to take effective remedial measures to stop the harassment. “Effective” in this context meant taking further steps if the initial discipline was inadequate and doing a thorough investigation of complaints. Instead, the district failed to discipline the harassers, and failed to train students, teachers and other school personnel about the district’s policy prohibiting harassment on the basis of sexual orientation.
State statutes also prohibit discrimination in schools on the basis of sex, race, sexual orientation or gender identity, physical disability, religion, and national origin (Ed. Code sections 200 and 220). The State Board of Education is charged with the responsibility of adopting policies directed at creating an environment in K-12 schools that is free from discriminatory attitudes and hate violence. This includes revising curriculum guidelines to include fostering an appreciation of diversity (Ed. Code section 233).
Students between fourth and 12th grades can be suspended or expelled if they engage in hate violence, which includes assault or battery or other violent acts that are motivated by prejudice on the basis of race, sex, sexual orientation, gender identity, physical disability, etc. (Ed. Code section 48900.3; Penal Code sections 422.6, 422.7).
School districts have an obligation to develop, implement, and annually
review a school safety plan (Ed. Code section 33280). Discrimination and anti-harassment policies must be part of the overall school safety plan, and school employees and parents should be involved in the formulation of such a plan (Ed. Code section 32282).
In addition, school safety is something about which the employer has an obligation to negotiate with the employee organization, so don’t hesitate to demand to bargain over any harassment or bullying issues that affect employment.