School Districts: Dignity For All Students Act And The United States Department Of Education "Dear Colleague Letter" 

November 10, 2010

Recently there has been widespread media coverage regarding the detrimental physical and emotional effects that occur from student-on-student bullying and other forms of harassment and discrimination against students. In an attempt to create a school environment free of harassment and discrimination, New York State's lawmakers recently enacted the Dignity for All Students Act ("DASA" or the "Act"). In addition, the United States Department of Education recently issued a "Dear Colleague Letter" to support and guide educators in explaining a school district's legal obligations when combating discriminatory harassment in schools.

A discussion of a district's legal obligations and responsibilities under both DASA and the "Dear Colleague Letter" are outlined below.

I. Dignity for All Students Act

DASA was signed into law by Governor David A. Paterson on September 13, 2010. The Act is an anti-bullying statute that prohibits harassment and discrimination against students in school or at school functions. Specifically, DASA provides protection against bullying conduct based on certain protected classes including, but not limited to, the student's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex.

Under the Act, "harassment" is defined as the "creation of a hostile environment by conduct or by verbal threats, intimidation or abuse that has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being." The Act provides that the bullying conduct or verbal behavior must be severe or pervasive enough to substantially interfere with a student's education to be considered harassment under the Act.

DASA only directly applies to bullying that takes place on school property or during school functions. The Act defines "school property" to mean "in or within any building, structure, athletic playing field, playground, parking lot, or land contained within the real property boundary line of a public elementary or secondary school, or in a school bus." "School functions" include school-sponsored extracurricular events or activities.

DASA does not directly extend to or include off-premises student-on-student conduct (including bullying) that occurs via electronic media. However, DASA charges the Commissioner of Education with the responsibility for providing direction to school districts about compliance with the Act. DASA also requires school districts to revise their Codes of Conduct to include an age appropriate, plain-language version of the anti-bullying policy set forth under the Act. It is therefore noteworthy that the New York State Education Department has prepared and published on the Department's website, a "Guidance on Bullying and Cyberbullying" stating that school districts "should address such internet and electronic device safety issues as cyberbulling and sexting" in their Codes of Conduct.

Pursuant to the Act, in addition to revising their Codes of Conduct, school districts are required to create policies and guidelines that will help students and educators address student-on-student bullying and other forms of harassment and discrimination, including harassment of students by school employees.

Specifically, districts will be required to:

1. Create policies that are intended to construct a school environment that is free from discrimination or harassment;

2. Create guidelines to be used in school training programs to discourage discrimination or harassment and that are designed to:

a. Raise awareness and sensitivity of school employees to potential discrimination or harassment; and

b. Enable school employees to prevent and respond to discrimination or harassment.

3. Create guidelines relating to the development of nondiscriminatory instructional and counseling methods;

4. Designate at least one (1) staff member at every school building to be thoroughly trained to handle human relations in the areas of race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender and sex; and

5. Revise the district's Code of Conduct to include an age appropriate, plain-language version of the anti-bullying policy set forth under the Act.

DASA does not take effect until July 1, 2012. However, all district codes, policies and guidelines should be reviewed and revised to ensure they are in full compliance with the Act well before that date.

II. U.S. Department of Education's "Dear Colleague Letter"

On October 26, 2010 the United States Department of Education ("Department") issued a "Dear Colleague Letter" that explains an educator's legal obligation to protect students from student-on-student racial, national origin, gender and disability harassment. The purpose of the "Dear Colleague Letter" was to remind districts that some student-on-student bullying may trigger additional responsibilities under one or more of the federal anti-discrimination laws enforced by the Department's Office for Civil Rights.¹

The civil rights statutes that could be triggered by student-on-student bullying include:

• Title VI of the Civil Rights Act of 1864 (Title VI) which prohibits discrimination on the basis of race, color, or national origin;
• Title IX of the Education Amendments of 1972 (Title IX); which prohibits discrimination on the basis of sex; and
• Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disability Act of 1990 (Title II) which both prohibit discrimination on the basis of disability.

Districts may violate the abovementioned statutes when peer harassment based on race, color, national origin, sex or disability is sufficiently serious that it creates a hostile environment and the harassment is ignored, encouraged, tolerated or not adequately addressed by school employees.

Similar to the standards set forth under DASA, supra, conduct creates a hostile environment when it is so sufficiently severe, pervasive or persistent that it interferes with a student's ability to participate in or benefit from the services, activities, or opportunities offered by a school.

Schools are responsible for addressing harassment-related incidents about which it knows or reasonably should have known. The Department has opined that a school is sufficiently placed on notice of harassing behavior where the harassment occurs in plain sight, is widespread or well known to students and staff, occurs in the hallways, during academic or physical education classes, occurs during extracurricular activities, at recess, on a school bus or through graffiti in public areas.

When the bullying behavior implicates one or more of the foregoing civil rights laws, the Department recommends that school administrators take further steps, in addition to disciplining the perpetrator, to address the harassing behavior. The Department notes that it is the school's responsibility to eliminate the hostile environment created by the harassment, address its effects and take affirmative action to ensure that the harassment does not recur.

The following is the Department's list of suggested actions a district should take when addressing peer harassment that implicates one of the civil rights statutes:

1. Separate the accused harasser and the victim. However, it is important that the school takes care to ensure that the victim of the harassment is not penalized. Any separation of the victim from an alleged harasser should be designed to minimize the burden on the victim's educational program. It is generally not a solution to require the victim to change his or her class schedule;

2. Provide counseling for the victim and/or the harasser;

3. Take disciplinary action against the harasser;

4. Provide training or other interventions for the perpetrators and the entire school community to ensure that all students, families and school staff can recognize harassment and know how to respond if a similar situation should recur;

5. Provide additional services to the victim in order to address the effects of the harassment (particularly if the school initially delayed in responding to the harassment or if the school inappropriately or inadequately responded to information about the harassing conduct);

6. Issue a new policy against harassment and new procedures by which students, parents and employees may report allegations of harassment or, in the alternative, widely disseminate the existing policies and procedures;

7. Widely distribute the contact information for the district's Title IX and Section 504/Title II coordinators;

8. Prevent any further harassment or retaliation against the person who made the complaint or against the victim of the harassment by:

a. Ensuring that the harassed students and their families know how to report any subsequent problems;

b. Conducting follow-up inquiries to see if there have been any new incidents of harassment or retaliation; and

c. Responding promptly and appropriately to address and resolve any continuing or new problems.

When determining whether or not the alleged conduct rises to the level of harassment and implicates one of the civil rights laws, it is important to assess the nature of the conduct rather than to rely on the label used to describe the incident (e.g., bullying, hazing, teasing etc.). If the harassing conduct is based on race, color, national origin, sex or disability and creates a hostile environment, a civil rights statute has likely been implicated and a district is obligated to respond accordingly.

Please do not hesitate to contact us should you need any assistance in complying with the requirements set forth under DASA or implementing and revising any policies to conform with current requirements under the civil rights statutes.

In Buffalo / Niagara Falls call 716-566-2800 or e-mail:

In the Capital District, call 518-533-3000 or e-mail:

In Central New York, call 315-218-8000 or e-mail:

In Long Island, call 516-267-6300 or e-mail:

In New York City, call 646-253-2300 or e-mail:

In the Rochester Region, call 585-362-4700 or e-mail:

¹ The Dear Colleague Letter was narrow in scope in that it only focused on the civil rights laws enforced by the Office for Civil Rights. However, the Letter acknowledged that other federal, state (such as DASA) and local laws may impose additional obligations on schools.