Policy: Prevention of Harassment of Students

Student 6002
Procedures for Prevention of Harassment of Students & Handling Complaints
Harassment Complaint Flow Chart
Student Harassment Incident Form

I. Purposes

The Orange Southwest Supervisory Union District is committed to providing all of its students with a safe and supportive school environment in which all members of the school community are treated with respect. This policy addresses incident(s) and/or conduct that occur on school property, on a school bus or at a school sponsored activity, or incident(s) and/or conduct that does not occur on school property, on a school bus or at a school-sponsored activity but where direct harm to the welfare of the school can be demonstrated.

Harassment is a form of unlawful discrimination that will not be tolerated. It is the policy of the District to prohibit the unlawful harassment of students based on race, creed, color, national origin, marital status, disability, sex, sexual orientation, and gender identity, to the extent required by law. In addition, retaliation is a form of unlawful discrimination that will not be tolerated. Consistent with these purposes, annually,1 each school shall select two or more designated employees to receive complaints and shall publicize their availability in any publication of the District that sets forth the comprehensive rules, procedures, and standards of conduct for the school.2

It is the intent of the District to apply and enforce this policy in a manner that is consistent with student rights to free expression under the First Amendment of the U.S. Constitution.

The purpose of this harassment policy is to prohibit conduct or communication that is directed at a person's protected characteristics as defined below and that is likely to substantially disrupt the educational learning process and/or access to educational resources, or create a hostile learning environment.

The District shall promptly and effectively address all complaints of harassment in accordance with the procedures established by this policy. In cases where harassment is substantiated, the school shall take prompt and appropriate remedial action reasonably calculated to stop the harassment. Such action may include a wide range of responses from education to serious discipline. Such serious discipline may include termination for employees and, for students, expulsion or removal from school property. Nothing herein shall be construed to prohibit punishment of a person for conduct which, although it does not rise to the level of harassment as defined herein, otherwise violates one or more of the school’s other disciplinary policies or codes of conduct.

1 See 16 V.S.A. §565(c)(1).
2 See Appendix A.  harassment as defined herein, otherwise violates one or more of the school's other disciplinary policies or codes of conduct.


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II. Definitions
“Harassment” means an incident or incidents of verbal, written, visual, or physical conduct, including any incident conducted by electronic means, based on or motivated by a student’s or a student’s family member’s actual or perceived race, creed, color, national origin, marital status, sex, sexual orientation, gender identity, or disability that has the purpose or effect of objectively and substantially undermining and detracting from or interfering with a student’s educational performance or access to school resources or creating an objectively intimidating, hostile, or offensive environment.  Sec. 35. 16 V.S.A. § 11(a)(26)(A) – 2011

Sec. 36. 16 V.S.A. § 11(a)(32) is amended to read (2011):
“Bullying” means any overt act or combination of acts, including an act conducted by electronic means, directed against a student by another student or group of students and which:
(A) is repeated over time;

(B) is intended to ridicule, humiliate, or intimidate the student; and

 (C)(i) occurs during the school day on school property, on a school bus, or at a school-sponsored activity, or before or after the school day on a school bus or at a school-sponsored activity; or

(ii) does not occur during the school day on school property, on a school bus, or at a school-sponsored activity and can be shown to pose a clear and substantial interference with another student’s right to access educational programs.

Additionally, the following laws related to Harassment and Bullying were amended during the 2010-2011school year:

Sec. 37. 16 V.S.A. § 1162 is amended to read:
§ 1162. SUSPENSION OR EXPULSION OF PUPILS
(a) A superintendent or principal may, pursuant to policies adopted by the school board that are consistent with state board rules, suspend a pupil for up to 10 school days or, with the approval of the board of the school district, expel a pupil for up to the remainder of the school year or up to 90 school days, whichever is longer, for misconduct:
(1) on school property, on a school bus, or at a school-sponsored activity when the misconduct makes the continued presence of the pupil harmful to the welfare of the school or for misconduct;
(2) not on school property, on a school bus, or at a school-sponsored activity where direct harm to the welfare of the school can be demonstrated; or
(3) not on school property, on a school bus, or at a school-sponsored activity where the misconduct can be shown to pose a clear and substantial interference with another student’s equal access to educational programs.

(b) Nothing contained in this section shall prevent a superintendent or principal, subject to subsequent due process procedures, from removing immediately from a school a pupil who poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process of the school, or from expelling a pupil who brings a weapon to school pursuant to section 1166 of this title.
(b)(c) Principals, superintendents, and school boards are authorized and encouraged to provide alternative education services or programs to students during any period of suspension or expulsion authorized under this section.

Harassment includes conduct as defined above and may also constitute one or more of the
following:

(1) Sexual harassment, 4 which means conduct that includes unwelcome sexual advances, requests for sexual favors and other verbal, written, visual or physical conduct of a sexual nature when one or both of the following occur:
(i) submission to that conduct is made either explicitly or implicitly a term or condition of
a student's education, academic status or progress; or
(ii) submission to or rejection of such conduct by a student is used as a component of the basis for decisions affecting that student

(2) Racial harassment, which means conduct directed at the characteristics of a student's or a student's family member's actual or perceived race or color, and includes the use of epithets, stereotypes, racial slurs, comments, insults, derogatory remarks, gestures, threats, graffiti, display, or circulation of written or visual material, and taunts on manner of speech and negative references to cultural customs.

(3) Harassment of members of other protected categories, means conduct directed at the characteristics of a student's or a student's family member's actual or perceived creed, national origin, marital status, disability, sex, sexual orientation, or gender identity and includes the use of epithets, stereotypes, slurs, comments, insults, derogatory remarks, gestures, threats, graffiti, display, or circulation of written or visual material, taunts on manner of speech, and negative references to customs related to any of these protected categories.

B. “Complaint” means an oral or written report by a student or any person to an employee alleging that a student has been subjected to conduct that may rise to the level of harassment.

C. “Complainant” means a student who has filed an oral or written complaint with a school employee or a student who is the target of alleged harassment in a report made by another person.

D. “Designated employee” means an employee who has been designated by the school to receive complaints of harassment pursuant to subdivision 16 V.S.A. §565(c)(1).

E. “Employee” includes any person employed directly by or retained through a contract with the District, an agent of the school, a school board member/member of the board of trustees, a student teacher, an intern or a school volunteer. For purposes of this policy, “agent of the school” includes supervisory union staff.

F. “Notice” means a written complaint or oral information that harassment may have occurred which has been provided to a designated employee from another employee, the student allegedly subjected to the harassment, another student, a parent or guardian, or any other individual who has reasonable cause to believe the alleged conduct may have occurred.5

G. “Retaliation” is any adverse action by any person against a person who has filed a complaint of harassment or against a person who assists or participates in an investigation, proceeding or hearing related to the harassment complaint. Such adverse action may include conduct by a school employee directed at a student in the form of intimidation or reprisal such as diminishment of grades, suspension, expulsion, change in educational conditions, loss of privileges or benefits, or other unwarranted disciplinary action. Retaliation may also include conduct by a student directed at another student in the form of further harassment, intimidation, and reprisal.

H. “School administrator” means a superintendent, principal/head of school/technical center director or his/her designee.

III. Reporting Student Harassment

A. Student reporting: Any student who believes that s/he has been harassed under this policy, or who witnesses or has knowledge of conduct that s/he reasonably believes might constitute harassment, should promptly report the conduct to a designated employee or any other school employee.

B. School employee reporting: Any school employee who witnesses conduct that s/he reasonably believes might constitute harassment shall take reasonable action to stop the conduct and to prevent its recurrence and immediately report it to a designated employee.  Any school employee who overhears or directly receives information about conduct that might constitute harassment shall immediately report the information to a designated employee. If one of the designated employees is the person alleged to be engaged in the conduct complained of, the complaint shall be immediately filed with the other designated employee or the school administrator.

C. Other reporting: Any other person who witness’s conduct that s/he reasonably believes might constitute student harassment under this policy should promptly report the conduct to a designated employee.

D. Documentation of the report: If the complaint is oral, the designated employee shall promptly reduce the complaint to writing in a harassment complaint form, including the time, place, and nature of the alleged conduct, and the identity of the complainant, alleged perpetrator, and any witnesses.

E. False Complaint: Any person who knowingly makes a false accusation regarding harassment may be subject to disciplinary action up to and including suspension and expulsion with regard to students, or up to and including discharge with regard to employees. There shall be no adverse action taken against a person for reporting a complaint of harassment when the person has a good faith belief that harassment occurred or is occurring.

IV. Procedures Following a Report

A. Notification: 6 Upon receipt of a complaint of harassment the designated employee shall immediately inform the school administrator of the complaint. In addition, the designated employee shall immediately provide a copy of this harassment policy to the complainant and accused individual. If either the complainant or the accused individual is under the age of 18, his or her parent(s) or guardian(s) shall be: 1.) promptly notified that a complaint of harassment has been filed and provided with a copy of this policy; 2.) notified if an alternative dispute resolution method will be offered and, if it occurs, of the outcome of any such attempt; and 3.) notified in writing of the results of the complaint investigation. All notification letters shall be subject to state and/or federal laws protecting the confidentiality of personally identifiable student information. A school administrator may seek waiver of confidentiality rights of the accused in order to inform the complainant of any disciplinary action taken in cases where the school determined that harassment or other misconduct occurred.

B. Investigation:7 Unless special circumstances are present and documented, such as reports to the Department for Children and Families (“DCF”) or the police, the school administrator shall, no later than one school day after the filing of a complaint with a designated employee, initiate or cause to be initiated, an investigation of the allegations. The school administrator shall assign a person to conduct the investigation; nothing herein shall be construed to preclude the school administrator from assigning him/herself or a designated employee as the investigator. No person who is the subject of a complaint shall conduct such an investigation.

No later than five school days from the filing of the complaint with the designated employee, unless special circumstances are present and documented, the investigator shall submit a written initial determination to the school administrator. The report shall include a statement of the findings of the investigator as to whether the allegations have been substantiated, and as to whether the alleged conduct constitutes harassment. When the initial determination concludes that an accused student has engaged in
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harassment, the school administrator shall use his or her discretion to decide the appropriate disciplinary and/or remedial action. In cases where the investigation has identified other conduct that may constitute a violation of other school disciplinary

policies or codes of conduct, the designated employee shall report such conduct to the school administrator for action in accordance with relevant school policies.

All levels of internal review8 of the investigator’s initial determination, and the issuance of a final decision, shall, unless special circumstances are present and documented by the District, be completed within 30 calendar days after the review is requested.

C. Action on a substantiated complaint: If, after investigation, the school finds that the alleged conduct occurred and that it constitutes harassment, the school shall take prompt and appropriate disciplinary and/or remedial action reasonably calculated to stop the harassment and prevent any recurrence of harassment. Such action may include warning, reprimand, education, training and counseling, transfer, suspension, and/or expulsion of a student, and warning, reprimand, education, training and counseling, transfer, suspension and/or termination of an employee.

D. Alternative dispute resolution:9 At all stages of the investigation and determination process, school officials are encouraged to make available to complainants alternative dispute resolution methods, such as mediation, for resolving complaints. The following should be considered before pursuing alternative dispute resolution methods: (1) the nature of the accusations, (2) the age of the complainant and the accused individual, (3) the agreement of the complainant, and (4) other relevant factors such as any disability of the target or accused individual, safety issues, the relationship between the target and accused individual, or any history of repeated misconduct/harassment by the accused individual. If an alternative dispute resolution is either not appropriate or is unsuccessful, the school administrator shall initiate or cause to be initiated an investigation of the allegations in accordance with the timelines established in this policy.

E. Appeal: A person determined to be in violation of this policy and subjected to disciplinary action under it may appeal the determination and/or the disciplinary action(s) taken in the same manner as other disciplinary actions, in accordance with the District’s discipline policy, applicable statutes, or collective bargaining agreements.

F. Independent Review:10 A complainant may request an independent review if s/he: 1.) believes that the school did not correctly analyze the complaint and failed to conduct an investigation of the incident because the school believed the alleged conduct did not constitute possible harassment, 2.) is dissatisfied with the final determination following an investigation as to whether harassment occurred, or 3.) believes that although a final determination was made that harassment occurred, the school's response was inadequate to correct the problem. The complainant shall make such a request in writing to the superintendent of schools/head of school. Upon such request, the superintendent/head of school shall promptly initiate an independent review by a neutral person as described under 16 V.S.A. § 565(f), and shall cooperate with the independent reviewer so that s/he may proceed expeditiously. The review shall consist of an interview of the complainant and relevant school officials and a review of the written materials from the school’s investigation. Upon completion of the independent review, the reviewer shall advise the complainant and school officials in writing: 1.) as to the sufficiency of the school’s investigation, its determination, and/or the steps taken by the school to correct any harassment found to have occurred, and 2.) of recommendations of any steps the school might take to prevent further harassment from occurring. A copy of the independent review report shall be sent to the Commissioner.
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The reviewer shall advise the student of other remedies11 that may be available if the student remains dissatisfied and, if appropriate, may recommend mediation or other alternative dispute resolution. The independent reviewer shall be considered an agent of the school for the purpose of being able to review confidential student records. The costs of the independent review shall be borne by the District. The District may request an independent review at any stage of the process.

G. Retaliation: It is unlawful for any person to retaliate against a person who has filed a complaint of harassment or against a person who assists or participates in an investigation, proceeding or hearing related to the harassment complaint. A person may violate this antiretaliation provision regardless of whether the underlying complaint of harassment is substantiated.

Nothing in this policy shall preclude anyone from reporting any incidents and/or conduct that may be considered a criminal act to law enforcement officials.

VIII. Alternative Complaint Process
In addition to, or as an alternative to filing a harassment complaint pursuant to this policy, a person may file a harassment complaint with the Vermont Human Rights Commission or the Office for Civil Rights of the U.S. Department of Education at the addresses noted below:
Vermont Human Rights Commission                              Office for Civil Rights, Boston Office
14-16 Baldwin Street                                                     U.S. Department of Education
Montpelier, VT 05633-6301                                            33 Arch Street, Suite 900
(800) 416-2010 or (802) 828-2480 (voice)                       Boston, MA 02110-1491
(877) 294-9200 (tty)                                                       (617) 289-0111 (voice)
(802) 828-2481 (fax)                                                      (877) 521-2172 (tdd)
Email: human.rights@state.vt.us                                     (617) 289-0150 (fax)
Email: OCR.Boston@ed.gov

12 See 16 V.S.A. §565(d).
13 See 16 V.S.A. §565(d).

APPENDIX A
Designated Employees
The following employees of the Orange Southwest Supervisory Union have been designated by the District to receive harassment complaints pursuant to this policy and 16 V.S.A. §565(c)(1):
Name: Stephen Kinney
Title: Special Education Coordinator
Contact information: 24 Central Street, Randolph, VT 05060
802 728-9844
Name: Robin Pembroke
Title: Business Manager
Contact information: 24 Central Street, Randolph, VT 05060
802 728-5052  

Orange Southwest Supervisory Union Warned   8/15/2011   Revised    9/12/2011
Braintree Elementary School Warned   9/12/2011   Revised   10/10/2011
Brookfield Elementary School Warned   8/15/2011   Revised     9/12/2011
Randolph Elementary School Warned   9/12/2011   Revised    10/10/2011
Randolph Union High School Warned   9/12/2011   Revised    11/14/2011

 

Legal References: Title V, Section B, 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 et seq.;
  Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d;
  Title IX of the Educational Amendments Act of 1972, 20 U.S.C. §§1681 et seq.;
  Family Education Rights Privacy Act; 20 U.S.C. 1232g;
  Public Accommodations, 9 V.S.A. §§4500 et seq. ;
  Education, Classifications and Definitions, 16 V.S.A. §11a (26);
  Education, Harassment, Notice and Response, 16 V.S.A. §14;
  Education, 16 V.S.A. §140(a)(1);
  Education, 16 V.S.A. §166(e);
  Education, Harassment and Hazing Prevention Policy, 16 V.S.A. §565;
  Education, Discipline, 16 V.S.A. §1161a;
  Education, Suspension or Expulsion of Pupils, 16 V.S.A. §1162;
  Child Abuse, 33 V.S.A. §§4911 et seq.;
  Adult Protective Services, 33 V.S.A. §6901 et seq., all as they may be amended from time to time.
  Washington v. Pierce , 179 VT 318 (2005)