The Dignity Act

A Resource and Promising Practices Guide for School Administrators & Faculty

 

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SECTION II: CREATING AN INCLUSIVE SCHOOL COMMUNITY: SENSITIVITY TO THE EXPERIENCE OF SPECIFIC STUDENT POPULATIONS

Every student deserves to learn in a safe and supportive school. Unfortunately, experience and research has shown that some groups of students are more vulnerable to discrimination and harassment, including bullying behavior, than others.  Therefore, it is vital that school staff be especially attentive regarding their welfare and safety.

Children with Special Needs

A growing body of research has demonstrated that children with special needs are at an increased risk of being bullied. Bullying Among Children and Youth with Disabilities and Special Needs, a fact sheet from the U.S. Department of Health and Human Services (www.stopbullying.govexternal link icon) provides the following insights into the vulnerability of these children:

  • Available information indicates that children with learning disabilities are at greater risk of being teased and physically bullied (Martlew & Hodson, 1991; Mishna, 2003; Nabuzoka & Smith, 1993; Thompson, Whitney, & Smith, 1994).
  • Children with Attention Deficit Hyperactivity Disorder (ADHD) are more likely than other children to be bullied. They also are somewhat more likely than others to bully their peers (Unnever & Cornell, 2003).
  • Children with medical conditions that affect their appearance (e.g., cerebral palsy, muscular dystrophy, and spina bifida) are more likely to be victimized by peers. Frequently, these children report being called names related to their disability (Dawkins, 1996).

Walk A Mile In Their Shoes: Bullying and the Child with Special Needs (4), a report and guide compiled by www.AbilityPath.orgexternal link icon, addresses the issue of children with special needs being targets of harassing behavior: The report and guide includes the following research findings:

  • Researchers have discovered that students with disabilities were more worried about school safety and being injured or harassed by peers, compared to students without a disability (Saylor & Leach, 2009).
  • According to researchers Wall, Wheaton and Zuver (2009) only 10 studies have been conducted in the United States on bullying and developmental disabilities. All studies found that children with disabilities were two to three times more likely to be victims of bullying than their non-disabled peers. In addition, the researchers found that the bullying experienced by these children was more chronic in nature and was most often directly related to their disability.

"Disability harassment” is illegal under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990. According to the U.S. Department of Education, disability harassment is “intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student’s participation in or receipt of benefits, services, or opportunities in the institution’s program” (U.S. Department of Education, 2000).

Please see: http://www2.ed.gov/about/offices/list/ocr/docs/disabharassltr.htmlexternal link icon

Autism Spectrum Disorders (ASDs)

The Interactive Autism Network (IAN) conducted a national study related to the frequency of students with ASDs being bullied in school. (5)

The initial results of the study released in 2012, illustrate that “children with ASD are bullied at a very high rate, and are also often intentionally “triggered” into meltdowns or aggressive outbursts by ill-intentioned peers.”   The IAN further reported that “bullying is extremely common in the lives of children with ASD, and occurs at a much higher rate for them than it does for their typically developing siblings. It is crucial that educators, providers, advocates, and families be aware of this, and be prepared to intervene. Children with ASD are already vulnerable in multiple ways. To have to face teasing, taunts, ostracism, or other forms of spite may make a child who is already struggling to cope completely unable to function. If a child was anxious, or dealing with issues of self-control, or unable to focus before there was any bullying, imagine how impossible those issues must seem when bullying is added to the mix. Cruelest of all is the fact that bullying may further impair the ability of a child with ASD, who is already socially disabled, to engage with the social world.”

The following chart was developed as part of the IAN Report, is based on a survey of parents of children (ages 6-15) with ASD.  Parents were asked whether their child had ever been bullied. Of the 1,167 students associated with this survey, 63% indicated that they had been bullied at some point.

Pie chart showing how many children with ASD were ever bullied: 63% 

On the other hand, “children with ASD may also behave as bullies, or at least be viewed as such. In fact, 20% of parents told us their child with ASD had bullied others, a rate that compares to only 8% for typical siblings. Most of these children were bully-victims – children who had been bullied and had also bullied others.”

Refugee and Immigrant Children

A refugee is a person who has left his or her country of nationality and is unable or unwilling to return to that country due to persecution or a well-founded fear of persecution based upon race, religion, nationality, membership in a specific social group, or political group. New York State receives refugee children every year. While most come with some family, others come alone, and all leave behind everything they have ever known. Some refugee children have experienced the ravages of war and others have suffered trauma as a result of their experiences in refugee camps.

Children who come to the United States as refugees face the challenge of adapting to a new environment while coping with the loss of home, family members, friends, belongings, and community. Although immigrant children usually do not leave their homes under the same kinds of circumstances that compel refugees to flee their country of nationality, they share some of the same challenges faced by refugee children in adapting to a new environment, learning a new language and creating social support networks with peers and adults in a new school community.

Both refugee and immigrant children must deal with vast cultural change, and cultural misunderstandings can make them particularly vulnerable to harassment in the form of bullying.  Factors such as a lack of understanding of cultural norms, different expectations for personal hygiene, peer pressure around appropriate clothing, different kinds of social boundaries, different culturally informed gestures, body language and use of personal space can make immigrant or refugee children the target of harassment.

A Brown University New England Equity Assistance Center (NEEAC) study in a medium-sized Massachusetts school district found that twice as many middle school English Language Learners (ELLs) reported worrying about being physically bullied as compared to their non-ELL peers and 49% of ELL students reported that students make fun of others with accents as compared to 21% of non-ELL students.

www.cga.ct.gov/coc/PDFs/bullying/102107_bullying_immigrants.pdfexternal link icon

To compound such issues, depending on the conditions in their home country, immigrant children and refugee children may be mistrustful of authority and, therefore, reluctant to report harassment or discrimination because they do not want to draw attention to themselves. Bridging Refugee Youth and Children’s Services (BRYCS) provides national technical assistance to organizations serving refugee and immigrants. Its website www.brycs.orgexternal link icon includes multiple resources that can assist educators in providing support to immigrant and refugee children.

LGBTQ Children (6)

The Gay, Lesbian and Straight Education Network (GLSEN) reports that many lesbian, gay, bisexual, and transgender teens in the United States experience homophobic remarks and harassment throughout the school day, creating an atmosphere where they feel disrespected, unwanted, and unsafe.

Homophobic remarks such as “that’s so gay” are the most commonly heard type of biased remarks at school. GLSEN’s research has found that such slurs may be unintentional since they may be part of teens’ vernacular.  In spite of this, most teens do not recognize that the casual use of such language often carries over into more overt harassment. See: www.thinkb4youspeak.com/ForEducators/?state=&type=antibullyingexternal link icon.

Students who are lesbian, gay, bisexual, transgender, or questioning (LGBTQ) are often reluctant to report harassment or discrimination. Negative attitudes that some people have toward LGBT individuals in general put such youth at increased risk for experiences with violence, compared with other students (Coker, Austin, Schuster, Annual Review of Public Health 2010.)  Such behaviors can include bullying, teasing, harassment, and physical assault. GLSEN’s 2009 National School Climate Survey examined the responses of 7,261 middle and high school students.

Key findings include:

  • 84.6% of LGBT students reported being verbally harassed, 40.1% reported being physically harassed and 18.8% reported being physically assaulted at school in the past year because of their sexual orientation.
  • 72.4% heard homophobic remarks, such as "faggot" or "dyke," frequently or often at school.
  • Over three-fifths (61.1%) of students reported that they felt unsafe in school because of their sexual orientation, and more than a third (39.9%) felt unsafe because of their gender expression.
  • 63.7% of LGBT students reported being verbally harassed, 27.2% reported being physically harassed and 12.5% reported being physically assaulted at school in the past year because of their gender expression.

See: www.glsen.org/binary-data/GLSEN_ATTACHMENTS/file/000/001/1675-2.pdfexternal link icon

"Playgrounds and Prejudice: Elementary School Climate in the United States," a study published by GLSEN in January 2012 further revealed the following statistics:

  • The most common forms of biased language in elementary schools, heard regularly (i.e., sometimes, often or all the time) by both students and teachers, are the use of the word "gay" in a negative way, such as "that's so gay," (students: 45%, teachers: 49%) and comments like "spaz" or "retard" (51% of students, 45% of teachers). Many also report regularly hearing students make homophobic remarks, such as "fag" or "lesbo" (students: 26%, teachers: 26%) and negative comments about race/ethnicity (students: 26%, teachers: 21%).
  • Three-fourths of students (75%) report that students at their school are called names, made fun of or bullied with at least some regularity. Most commonly this is because of students' looks or body size (67%), followed by not being good at sports (37%), how well they do at schoolwork (26%), not conforming to traditional gender norms/roles (23%) or because other people think they're gay (21%).

www.glsen.org/cgi-bin/iowa/all/library/record/2832.html?state=research&type=researchexternal link icon

A key finding in GLSEN’s "Playgrounds and Prejudice: Elementary School Climate in the United States" study was the physical location where students reported being directly confronted in name calling situations.  Figure 3.7 “Locations Where Bullying or Name-Calling Occurs at School” provides valuable insight for school administrators, the DAC(s), and other personnel in relation to where to focus their efforts to curtail and ultimately eliminate such acts.  See:

www.glsen.org/binary-data/GLSEN_ATTACHMENTS/file/000/002/2027-1.pdfexternal link icon

Fig 3.7 Locations Where Bullying or Name-Calling Occurs at SchoolStill another critical finding was the student’s perception of whether or not reporting such acts to their teacher helped to resolve the situation. Figure 3.8 “Frequency and Helpfulness of Telling a Teacher About Being Called Names, Made Fun Of, or Bullied At School” is particularly significant since all students are entitled to attend school in a safe and supportive environment free from bullying, discrimination, and harassment.  See:

www.glsen.org/binary-data/GLSEN_ATTACHMENTS/file/000/002/2027-1.pdfexternal link icon

Fig 3.8 Frequency and Helpfulness of Telling a Teacher about Being Called Names, Made Fun of or Bullied at School

Additional research published in 2011 by the National Center for Transgender Equality and the National Gay and Lesbian Task Force revealed that students “…who expressed a transgender identity or gender non-conformity while in grades K-12 reported alarming rates of harassment (78%), physical assault (35%) and sexual violence (12%); harassment was so severe that it led almost one-sixth (15%) to leave a school in K-12 settings or in higher education.”  The  research also found that  individuals “…who have been harassed and abused by teachers in K-12 settings showed dramatically worse health and other outcomes than those who did not experience such abuse. Peer harassment and abuse also had highly damaging effects.” 

http://transequality.org/PDFs/NTDS_Report.pdfexternal link icon

According to GLSEN’s Harsh Realities report  “Nearly nine in ten transgender students have been verbally harassed in the last year due to their gender expression (87 percent) and more than half have also been physically assaulted (53 percent).”  In addition, the report states “nearly  half of transgender students report regularly skipping school because of safety concerns, clearly impacting their ability to receive an education, and nearly one in six (15 percent) of transgender and gender nonconforming students face harassment so severe that they are forced to leave school.”

Finally, the U.S. Centers for Disease Control and Prevention (CDC) reported that a survey of more than 7,000 seventh and eighth grade students from a large Midwestern county examined the effects of school climate and homophobic bullying on lesbian, gay, bisexual, and questioning (LGBQ) youth and found that:

  • LGBQ youth were more likely than heterosexual youth to report high levels of bullying and substance use.
  • Students who were questioning their sexual orientation reported more bullying, homophobic victimization, unexcused absences from school, drug use, feelings of depression, and suicidal behaviors than either heterosexual or LGBQ students.

Children in Foster Care and Children with Incarcerated Parents

While bullying can be a common problem for all students, children in foster care and children with incarcerated parents face additional stigmas that make them more susceptible to being victims or bullies at school.  These children frequently miss school, which can lead to education and social problems, making them easy targets.  Furthermore, they may feel humiliated for having lost contact with their parents and may worry about how their parents are doing or when they might see or talk to them again. These worries can lead to anxiety, making the child stressed and emotionally overwhelmed.

  • More than 72% of incarcerated women report being parents.
  • In New York, it is estimated that more than 105,000 minor children have a parent serving time in prison or jail at any one time.
  • There are more than 120,000 individuals subject to probation, and nearly 42,000 on parole as of December 31, 2009.

Source: www.osborneny.org/NYCIP/ACalltoActionNYCIP.Osborne2011.pdfexternal link icon A Call to Action: Safeguarding New York’s Children of Incarcerated Parents A Report of the New York Initiative for Children of Incarcerated Parents (May 2011)

Additionally, children in foster care and children with incarcerated parents may become withdrawn and experience low self-esteem.  Children may be afraid of the stigmas and stereotypes that come with being a child in foster care or a child with an incarcerated parent.  For example, when it is known that a child has an incarcerated parent, s/he may be blamed if another student’s personal belongings go missing based on the beliefs that “the apple doesn’t fall far from the tree” and criminality is in the child’s genes.  Consequently, students may shy away from revealing their situation to school staff or their peers and may inevitably cope with their struggles alone.

Children in foster care and children with incarcerated parents are also more likely to become bullies.  As a result of their situation, they may turn to anger, aggression, drugs and/or alcohol as an outlet.  Being unable to control their emotions, they may take out their anger and frustration on fellow peers at school.  According to the CDC, drug and alcohol use, high emotional distress, and high level of family disruption are risks that may lead to youth violence.

Home life can also be extremely difficult for these students.  Placement in kinship foster homes, while done in order to minimize change or disruption in their families, has the possibility of making the living situation even more complicated.  According to the 2011 Osborne Report, the Child Welfare League of America defines kinship caregivers as “relatives, members of a tribe or clan, godparents, step-parents, or other adults who have a kinship bond with a child.”  Therefore, whatever emotions the child is experiencing the kinship caregiver is probably feeling something very similar.  While a kinship caregiver may also have a better understanding of what the child is going through, it may be difficult for the caregiver to separate his/her emotions from his/her interaction with the child.

In addressing the special needs of these populations, some model programs have been developed.  For example, in Virginia, public schools have implemented the Milk and Cookies Children’s Program, a support-based group that allows children with incarcerated parents to meet with peers in the same situation and talk amongst themselves with a trained adult.  The program is designed to help the children understand their situation in order to understand how to react appropriately.

The federal McKinney-Vento Act provides specific protections to ensure educational stability for students who are homeless or in temporary housing.  Both McKinney-Vento and the Dignity Act have raised awareness and sensitivity about particular issues that may impact students’ education and the need to increase the educational outcomes for children who attend public schools.  McKinney-Vento has had a positive effect on the educational opportunities, attendance and outcomes for students in temporary housing.

For more information on the McKinney-Vento Act, please see: http://nysteachs.org www.p12.nysed.gov/nclb/programs/homelessexternal link icon or call 800-388-2014.

Federal Civil Rights Statues Related to Schools and Harassment

Schools that receive federal funding are required by federal law to address discrimination. The statutes the Department of Education’s Office for Civil Rights (OCR) enforces include:

  • Title VI of the Civil Rights Act of 1964 (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, including sexual harassment and stereotyping;
  • Section 504 of the Rehabilitation Act of 1973 (Section 504); and Title II of the Americans with Disabilities Act of 1990 (Title II). Section 504 and Title II prohibit discrimination on the basis of disability.

Federal courts have found that school districts may be subject to liability in Title VI and Title IX cases for teacher or peer harassment when the district exercises substantial control over the harasser and the context in which the known harassment occurs, the harassment is severe and discriminatory, the district has actual knowledge of the harassment, and its response amounts to deliberate indifference to discrimination (see e.g., Davis ex. rel. LaShonda P. v. Monroe Cnty. Bd. of Educ., 526 US 629 [1999]; Zeno v. Pine Plains Central School District, 702 F3d 655 [2d Cir. 2012]).

US Department of Education Office of Civil Rights “Dear Colleague” Letter on Harassment and Bullying

The U.S. Department of Education’s Office of Civil Rights periodically issues “Dear Colleague” letters to school districts and to schools on pertinent issues related to K-12 and higher education.  The October 2010 “Dear Colleague” letter from U.S. Assistant Secretary of Education Russlynn Ali addressed harassment and bullying and is particularly pertinent to implementing the Dignity Act within the larger context of federal civil rights laws.   

The following are excerpts from the Office of Civil Rights’ letter: (www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdfexternal link icon)

[S]ome student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal civil antidiscrimination laws enforced by [OCR]….  Harassing conduct may take many forms, including verbal acts and name calling, graphic and written statements, which may include use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating.  Harassment does not have to include intention to harm, or be directed at a specific target, or involve repeated incidents. 

Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school.  When such harassment is based on race, color, national origin, sex, or disability, it violates the civil rights laws that U.S. Department of Education Office of Civil Rights enforces.

Some conduct alleged to be harassment may implicate the First Amendment rights to free speech or expression. For more information on the First Amendment’s application to harassment, see the discussions in OCR’s Dear Colleague Letter: First Amendment (July 28, 2003), available at www.ed.gov/about/offices/list/ocr/firstamend.htmlexternal link icon)

As noted in the October 2010 U.S. Department of Education Office of Civil Rights letter, a school is responsible for addressing harassment incidents about which it knows or reasonably should have known.

A school has notice of harassment if a responsible employee knew, or in the exercise of reasonable care should have known, about the harassment. In some situations, harassment may be in plain sight, widespread, or well-known to students and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, on a school bus, or through graffiti in public areas. In these cases, the obvious signs of the harassment are sufficient to put the school on notice. In other situations, the school may become aware of misconduct, triggering an investigation that could lead to the discovery of additional incidents that, taken together, may constitute a hostile environment.

The following is an excerpt from the October 2010 letter from U.S. Assistant Secretary of Education Russlynn Ali, available at: www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdfexternal link icon.

In all cases, schools should have well-publicized policies prohibiting harassment and procedures for reporting and resolving complaints that will alert the school to incidents of harassment.

When responding to harassment, a school must take immediate and appropriate action to investigate or otherwise determine what occurred. The specific steps in a school’s investigation will vary depending upon the nature of the allegations, the source of the complaint, the age of the student or students, involved, the size and administrative structure of the school, and other factors. In all cases, however, the inquiry should be prompt, thorough, and impartial.

If an investigation reveals that discriminatory harassment has occurred, a school must take prompt and appropriate steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring. These duties are a school’s responsibility even if the misconduct is also covered by an anti-bullying policy, regardless of whether a student has complained, asked the school to take action, or identified the harassment as a form of discrimination.

Appropriate steps to end harassment may include separating the accused harasser and the target, providing counseling for the target and/or harasser, or taking disciplinary action against the harasser. These steps should not penalize the student who was harassed. For example, any separation of the target from an alleged harasser should be designed to minimize the burden on the target’s educational program (e.g., not requiring the target to change his or her class schedule).

In addition, depending on the extent of the harassment, the school may need to provide training or other interventions not only for the perpetrators, but also for the larger school community, to ensure that all students, their families, and school staff can recognize harassment if it recurs and know how to respond. A school also may be required to provide additional services to the student who was harassed in order to address the effects of the harassment, particularly if the school initially delays in responding or responds inappropriately or inadequately to information about harassment. An effective response also may need to include the issuance of new policies against harassment and new procedures by which students, parents, and employees may report allegations of harassment (or wide dissemination of existing policies and procedures), as well as wide distribution of the contact information for the district’s Title IX and Section 504/Title II coordinators.

Finally, a school should take steps to stop further harassment and prevent any retaliation against the person who made the complaint (or was the subject of the harassment) or against those who provided information as witnesses. At a minimum, the school’s responsibilities include making sure that the harassed students and their families know how to report any subsequent problems, conducting follow-up inquiries to see if there have been any new incidents or any instances of retaliation, and responding promptly and appropriately to address continuing or new problems.

When responding to incidents of misconduct, schools should keep in mind the following:

  • The label used to describe an incident (e.g., bullying, hazing, teasing) does not determine how a school is obligated to respond. Rather, the nature of the conduct itself must be assessed for civil rights implications. So, for example, if the abusive behavior is on the basis of race, color, national origin, sex, or disability, and creates a hostile environment, a school is obligated to respond in accordance with the applicable federal civil rights statutes and regulations enforced by OCR.
  • When the behavior implicates the civil rights laws, school administrators should look beyond simply disciplining the perpetrators. While disciplining the perpetrators is likely a necessary step, it often is insufficient. A school’s responsibility is to eliminate the hostile environment created by the harassment, address its effects, and take steps to ensure that harassment does not recur. Put differently, the unique effects of discriminatory harassment may demand a different response than would other types of bullying.

(4) www.abilitypath.org/areas-of-development/learning--schools/bullying/articles/walk-a-mile-in-their-shoes.pdfexternal link icon

(5) www.iancommunity.org/cs/ian_research_reports/ian_research_report_bullyingexternal link icon 

(6) It is recognized that there are a number of commonly used variants of this acronym. For the purposes of consistency in this guidance document, the acronym LGBTQ will be officially used to refer to individuals who self-identify as either lesbian, gay, bisexual, transgender, or questioning. Variations of this acronym are taken from the original source material.

 

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Last Updated: March 11, 2014