OCR Reference No. 08-19-1367 (August 23, 2022)
By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG Consulting
SUMMARY OF FACTS
On August 23, 2022, the Office for Civil Rights (“OCR”) entered into a resolution agreement with Kyrene School District (“the District”) in Tempe, Arizona.[1] OCR investigated whether the District failed to respond appropriately to complaints that a student (“the Student”) experienced discrimination based on her Jewish ancestry under Title VI of the Civil Rights Act of 1964. Under Title VI, a school may be in violation if it has effectively caused, encouraged, accepted, tolerated, or failed to correct a hostile environment, based on national origin harassment, of which it has actual or constructive notice.[2] OCR evaluated the appropriateness of the responsive action by assessing whether it was reasonable, timely, and effective. To appropriately respond to a hostile environment based on national origin, a recipient must tailor its response to fully redress the specific problems experienced as a result of the harassment. OCR determined that the District failed to do so.
OCR found that the Student was subject to a hostile environment based on her Jewish heritage, with numerous incidents occurring over the course of approximately five months. Other students joked about the Holocaust, spoke or pretended to speak in German, marched and saluted like Nazi soldiers, made references to concentration camps, and called the Student derogatory names. At least nine of the Student’s peers engaged in the harassment, which occurred in school and online.[3]
OCR found that the principal failed to respond in a reasonable, timely, and effective manner. First, there was no prompt communication to school staff about the reported harassment. Although the principal emailed staff generalized concerns and addressed it in a meeting later in the year, staff were unaware of the need to monitor the situation or identify ongoing harassment. Next, the principal neglected to take action to move the harassing students out of the Student’s classes. Although the students received suspensions for their behavior, the harassing students attended class with the Student for at least one day after their suspensions before the principal changed the Student’s class schedule. Finally, the school failed to create a safety plan for the Student. As a result, OCR determined that the District “abdicated its obligation” to provide the Student with a safe school environment, leaving the Student with no choice other than to select to home-school.[4] The Student suffered academically and socially, disrupting her academic progress.
The principal also failed to address a school-wide problem with anti-Semitic harassment. The remedial measures for the school-wide problem were narrow and focused primarily on punishment of individual perpetrators. The principal waited to implement the only school-wide measure until seven months after the school determined that nine students had engaged in harassment. Even then, only school staff received training, not the student body. Additionally, the principal never conducted interviews with teachers who were in the classrooms where some of the harassment occurred, thereby disregarding the school’s obligation to assess whether the conduct was widespread. Such decisions permitted a hostile environment to persist.
RESOLUTION AGREEMENT
As a result of the allegations and OCR’s investigation, OCR entered into a resolution agreement with the District detailing that the District must:
- Provide reimbursement to the Complainant for documented tutoring expenses, a preparation course, 10 hours of career counseling and/or post-secondary education admissions guidance, and reimbursement for other additional expenses following the harassment.[5]
- Issue an anti-harassment statement and publish it on their website and in printed publications. The statement must emphasize that the District does not tolerate acts of harassment, including harassment based on actual or perceived race, color, or national origin. The statement must also include information about reporting harassment and the District’s responsibility to investigate complaints.
- Review its policies and procedures. As necessary, the District must revise its policies and procedures and disseminate the revised policies and procedures. The revised materials must include a non-discrimination statement and encourage reporting. Moreover, the policies and procedures must designate the staff member responsible for overseeing the District’s response to reports of harassment. The resolution agreement also outlines several specific provisions the District must include in its revisions.
- Provide training to staff and investigators. The training mandates includes many elements, including the non-discrimination policy, other relevant policies and procedures, the definition of harassment, and how to report. For staff members with responsibilities in the resolution process, the District must provide additional training focused on the different steps of the resolution process and the District’s responsibilities at each stage of the process.
- Offer an age-appropriate informational program for students, aimed to address harassment at all schools in the District. The program must include several prescribed components designed to educate students about anti-Semitism and other discrimination based on national origin, as well as the District’s policy and reporting process.
- Conduct an audit of the 2022-2023 school year to review consistency of application and compliance with the District’s new policy and procedures.
- Send a notice to all students and parents or guardians about the non-discrimination statement and how to make a report.
- Administer a climate assessment at all District schools, assess the results, and respond accordingly.
Each element of the resolution agreement is subject to various reporting requirements so OCR may continue to monitor the District’s progress on each requirement. All reporting requirements have corresponding deadlines.
KEY TAKEAWAYS
- Noncompliance comes with costs. The resolution agreement contains a laundry list of requirements the District must complete within the next year. Fulfilling those obligations will take an extraordinary amount of time, energy, and money. The District will use far more resources as a result of this agreement, not to mention responding to the OCR complaint, than it would have by simply responding appropriately to the Student’s complaints. Responding effectively to reports of discriminatory harassment is not only the right thing to do, but it’s the cost-effective option, too. School districts across the country are resource-strapped and need to make tough decisions about how to allocate limited personnel and budget resources, but shortchanging discrimination and harassment processes cannot be an option.
- If they have not done so already, schools must review their non-discrimination policies to ensure they include all required protected characteristics as defined by local, state, and federal law. Furthermore, schools should train their staff members on their responsibilities and verify that reporting mechanisms are functional and understood. Part of that process is notifying parents and guardians. State and federal law may evolve from year-to-year, mandating policy and procedure changes. Implementing an annual review process is critical.
- The facts in this resolution agreement underscore the importance of training teachers and staff members to recognize discriminatory harassment and to understand their obligations to respond and report. A little bit of training can go a long way toward equipping teachers and staff members with the knowledge they need to meet reporting obligations and create a discrimination-free environment for their students.
- Here, the principal’s actions emphasize the importance of responding promptly to reports of harassment, as well as tailoring remedial and disciplinary measures to prevent reoccurrence. The principal failed to properly investigate the claims and also failed to design and implement a safety plan for the Student, leading to additional harassment. As a result, the Student chose homeschooling and fell behind socially and academically, all of which a prompt and effective response may have prevented.
- Schools often view suspension as an end, in itself, and while it may be for certain student discipline matters, this case and many others highlight the fact that suspension may not meet or entirely meet remedial requirements for civil rights discrimination complaints. One of the disconnects we often see with our K-12 clients is that civil rights issues are not managed differently than student conduct offenses by school officials, but outcomes like this remind us how important it is to use the broader civil rights lens for civil rights complaints.
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[1] Click here for the letter and resolution agreement.
[2] Constructive notice means if, upon reasonably diligent inquiry in the exercise of reasonable care, the recipient should have known of the discrimination.
[3] Prior to public posting, OCR heavily redacted the letter to the District, making it challenging to provide a full picture of the allegations and District response in this publication.
[4] OCR Reference No. 08-19-1367 Letter at 7.
[5] Due to redactions in the resolution agreement, the purpose of the preparation course or the additional documented expenses is unclear.