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Definitions - M.G.L. c. 71 § 37O and its implementing regulations, 603 CMR 49.00

Bullying: The repeated use by one or more students or by a member of a school staff including, but not limited to, an educator, administrator, school nurse, cafeteria worker, custodian, bus driver, athletic coach, advisor to an extracurricular activity or paraprofessional of a written, verbal, or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that:

causes physical or emotional harm to the victim or damages the victim’s property;
places the victim in reasonable fear of harm or damage to his property;
creates a hostile environment at school for the victim;
infringes on the rights of the victim at school; or
materially and substantially disrupts the education process or orderly operation of a school.

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Definitions - M.G.L. c. 71 § 37O and its implementing regulations, 603 CMR 49.00

Cyber-Bullying: bullying through the use of technology or any electronic communication, which shall include, but shall not be limited to, any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications. Cyberbullying shall also include:

the creation of a web page or blog in which the creator assumes the identity of another person or the knowing impersonation of another person as the author of posted content or messages, if the creation or impersonation creates any of the conditions enumerated in the definition of bullying.
the distribution by electronic means of a communication to more than one person or the posting of material on an electronic medium that may be accessed by one or more persons, if the distribution or posting creates any of the conditions enumerated in the definition of bullying.

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Definitions - M.G.L. c. 71 § 37O and its implementing regulations, 603 CMR 49.00

Perpetrator: “a student or a member of a school staff including, but not limited to, an educator, administrator, school nurse, cafeteria worker, custodian, bus driver, athletic coach, advisor to an extracurricular activity or paraprofessional who engages in bullying or retaliation.” (emphasis added).

Hostile Environment: A situation in which bullying causes the school environment to be permeated with intimidation, ridicule, or insult that is sufficiently severe or pervasive to alter the conditions of the student’s education.

Retaliation: Retaliation against a person who reports bullying, provides information during an investigation of bullying, or witnesses or has reliable information about bullying shall be prohibited.

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Bullying

Definitions

Prohibition Against Bullying

Policies and Procedures

Bullying Investigation Process

Liability

Students in Protected Categories

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Retaliation

Retaliation is prohibited against a person who:

Reports bullying;
Provides information during an investigation; or
Has reliable information.

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Reporting Bullying

Staff must immediately report bullying or retaliation that they witness or become aware of to principal or other designated person.

Clear procedures for students, staff, parents, guardians, and others to report bullying or retaliation; Information regarding the availability and use of the bullying reporting form.

Must investigate all reports of bullying. It is our responsibility to identify bullying.

Bullying or retaliation may be reported anonymously, such as through a “bully box” or “bully hot line,” but no disciplinary action can occur solely based on an anonymous report.

A student who makes a false accusation of bullying or retaliation will be subject to disciplinary action.

Create interim safety measures for student and create plan after investigation.

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Investigating Bullying

Principal will investigate incident.

DOCUMENT, DOCUMENT, DOCUMENT.

There is no need to wait for a formal complaint to begin an investigation. The more proactive the school can be, the better.

When interviewing suspected perpetrators, take notes, indicate the date, time, and length of the interview.

Preserve all email or text communications.

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Communicating with Parents

Procedures consistent with state and federal law for promptly notifying the parents or guardians of a victim and a perpetrator of outcome.

Parents/Students should never feel the school is being unresponsive. Keep parents of both victim and accused bully informed of the investigation, even if it is fruitless.

The parents of the perpetrator have a right to know the outcome of the investigation and the district’s response. This notice must comply with student record confidentiality requirements.

The parents or guardians of a victim shall also be notified of the determination of whether bullying occurred and action taken to prevent any further acts of bullying or retaliation. This notice must comply with student record confidentiality requirements.

There should be notification by the principal when criminal charges may be pursued against the perpetrator.

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Discipline

Wayland’s policies indicate the range of disciplinary actions that may be taken against a perpetrator for bullying or retaliation; provided, however, that the disciplinary actions shall balance the need for accountability with the need to teach appropriate behavior.

Be aware that the obvious resolution of disciplining the perpetrator is not always sufficient or appropriate.

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Steps to Protect the Victim and Prevent Re-occurrence

Types of support services available to the student bully, victim, witnesses, and any bystanders;
Clear procedures for restoring a sense of safety for a victim and assessing that victim’s needs for protection;
Strategies for protecting from bullying or retaliation a person who reports bullying, provides information during an investigation of bullying or witnesses or has reliable information about an act of bullying; and
A strategy for providing counseling or referral to appropriate services for perpetrators and victims and for appropriate family members of said students.

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Multiple Schools/Older students

If an incident involves students from more than one school, the school district first informed, consistent with state and federal law, must notify the appropriate administrator of the other school.

If an incident involves a student older than 21 who is no longer enrolled, the school must contact law enforcement.

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Liability

Jane Doe v. Northampton, 23-10358-MGM – Student committed suicide after being withdrawn from school, allegedly due to bullying. Plaintiff alleged Defendant had “an unwritten policy to intentionally downgrade and misclassify bullying incidents as incidents of ‘peer on peer conflict.’” When viewed in its entirety, the factual allegations support the plausible existence of the unconstitutional policy articulated by Plaintiff. Additionally, an NHS student identified as A.M. told N.M. she was not “black enough” to wear her hair in braids and NHS assistant principal Celeste Malvezzi informed N.M. that when she wore “flashy eyelashes,” it appeared N.M. was more likely to be targeted for harassment. Malvezzi then allegedly said, “but I know [the eyelashes] are cultural for you.” These statements were sufficient to allege that the harassment was related to race and a potential Title VI violation.

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Agenda

Bullying
Title IX
Civil Rights
Q & A

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Definitions

Under state law, sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment under Massachusetts law when:

Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's advancement (quid pro quo harassment);
Submission to or rejection of such conduct by an individual is used as the basis for employment decisions;
Such conduct interferes with an individual's job duties; or
The conduct creates an intimidating, hostile or offensive work environment.

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Definitions

Under Federal law, sexual harassment means conduct on the basis of sex that satisfies one or more of the following:

An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct (“quid pro quo harassment”);
Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity (“hostile environment harassment”); or
“Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30)

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Definitions

“Complainant” means an individual who is alleged to be the victim of conduct that could constitute sexual harassment

“Respondent” means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

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Actual Knowledge

Must respond to complaints when have actual knowledge

“Actual knowledge” means notice of sexual harassment or allegations of sexual harassment to any employee of the district, except that this standard is not met when the only official of the district with actual knowledge is the respondent (where the respondent is an employee). Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. Complaints will be addressed whenever the district has actual knowledge of the allegation.

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Other constraints

Title IX only applies to locations, events, and/ or circumstances in which the school district exercises substantial control.

No longer have to investigate or address off-campus conduct over which the school does not exercise substantial control under Title IX. May have to address under other policy and procedure, like dating violence, bullying, etc.
It must have occurred in the school district program.

It does not apply to events that were alleged to have occurred outside the United States.

There is no time limit or statute of limitation on timing to file a formal complaint. However, at the time of filing a formal complaint, an alleged victim must be participating or attempting to participate in a program or activity of the school district.

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Upon receipt of actual knowledge

Employees notify Title IX Coordinator or people file report directly with Title IX officer

The Title IX Coordinator must then contact the complainant upon receiving the complaint and do the following:

Discuss and offer supportive measures;
Consider the complainant’s wishes with respect to supportive measures;
Explain that supportive measures may be received with or without filing a formal complaint;
Determine whether the complainant wishes to file a formal complaint; and
Explain to the complainant the purpose of filing a formal complaint

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Offer Supportive Measures

Complainant and respondents must be offered supportive measures even if they do not file a formal complaint.

“Supportive measures” means non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient’s educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The district must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the recipient to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures

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Formal complaint

Formal complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment and requesting that the district investigate the allegation of sexual harassment.

If the complainant declines to file a formal complaint, the Title IX Coordinator must consider whether to sign a formal complaint and start an investigation despite the complainant’s preferences.

This decision may be appropriate when safety or similar concerns lead the district to conclude it must investigate and potentially sanction a respondent.
A Title IX Coordinator’s decision to override the complainant’s decision not to file a formal complaint must be documented in writing along with an explanation of why this decision was necessary.

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Timeframe

Must be prompt – generally within sixty days, but can be extended for good cause

Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.

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Written notice

Before any investigation can begin, the district must send written notice to both parties including sufficient details. Sufficient details include:

the identities of the parties involved in the incident, if known
the conduct allegedly constituting sexual harassment,
the date and location of the alleged incident, if known.

The written notice must include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
The written notice must inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence.
The written notice must inform the parties that the District’s code of conduct prohibits knowingly making false statements or knowingly submitting false information during the grievance process.
If additional allegations are added during the course of the investigation, additional written notice must be provided.

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Informal Resolution

Only after a formal complaint and written notice has been issued.

Title IX Coordinator can consider offering mediation.

The parties must give written consent to engage in this process.

Informal resolution may not be used if the allegation is against an employee respondent and student complainant.

Mediator should not prejudge outcome.

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Informal Resolution

Facilitators of informal resolution will be designated by the Title IX Coordinator and must not be biased against any of the parties or have a conflict of interest.

A conflict of interest would typically be a personal financial interest or personal interest that would prevent someone from being impartial.

Informal resolution is entirely voluntary.

If the complainant and the respondent feel that their grievances have been sufficiently addressed via informal resolution, then no further action needs to be taken. This voluntary conversation must occur within five (5) school days after receiving the complaint of discrimination or harassment, unless both parties agree otherwise. The results of an informal resolution shall be maintained by the facilitator, in writing.

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Investigation

The Title IX Coordinator will designate an investigator and a decision maker, who may not be the same person.

The investigator must not be biased against any of the parties at the outset of the investigation.

The investigator will be responsible for interviewing parties and witnesses, finding facts, and making determinations related to credibility, all of which will go into a written report.

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Investigation

Prior to completion of the investigative report, the school district will send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report.

School districts may not limit students’ and employees’ ability to discuss (i.e., speak or write about) the allegations under investigation, for example with a parent, friend, or other source of emotional support, or with an advocacy organization.

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Investigation

Findings should be written in a factual way in an investigative report. Credibility determinations may not be based on an individual’s status as complainant, witness, or respondent.

The investigator must avoid making any final determinations of responsibility for sexual harassment.

Investigative report will be sent to both the complainant and respondent. It will also be sent to the decision-maker.

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Decision-making

The decision-maker must not be biased against any of the parties at the outset of this process.

The parties receive 10 days to respond to report.

The decision-maker will offer both the complainant and respondent the opportunity to submit proposed relevant, written questions to ask of any party or witness, to respond to questions posed by another party, and to offer additional limited follow-up.

Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
The decision-maker(s) must explain to the party proposing the questions any decision to exclude a question as not relevant.
The decision-maker must consider what is relevant, using the same criteria of relevancy as discussed during the investigation.

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Decision-making

After this process is complete, the decision-maker will create a written determination regarding whether sexual harassment has occurred using a preponderance of the evidence standard.

A school district must think about how a reasonable person would view the conduct when determining whether the conduct constitutes sexual harassment. In making this determination, school districts may consider the age and number of parties involved.

Everything about best practices stated during investigation section applies here, such as not prejudging.

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Decision-making

The written determination must be issued to both parties simultaneously and must include:

Identification of the allegations potentially constituting sexual harassment;
A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
Findings of fact supporting the determination;
Conclusions regarding the application of the recipient’s code of conduct to the facts;
A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the recipient imposes on the respondent, and whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant; and
The district’s procedures and permissible bases for the complainant and respondent to appeal (a copy of, or direct reference to, this policy will suffice).

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Decision-making

A “preponderance of the evidence” means that it is more likely than not that the alleged conduct occurred.

The decision-maker shall further recommend what action, if any, is required.

If there is a finding that sexual harassment occurred, the school district will provide remedies to the complainant designed to restore or preserve equal access to the school district’s education program or activity. Such remedies may include supportive measures.

Formal disciplinary actions may be imposed in the event that the preponderance of the evidence indicates a violation of this policy, up to and including expulsion or termination. Any disciplinary action will be in accordance with due process rights under State law and any applicable collective bargaining agreement.

School district cannot take discipline in the absence of following this formal process. It does not limit the District from removing a student or employee from a program or activity on an emergency basis based on immediate threats to people’s physical health or safety or placing an employee on administrative leave during the pendency of the investigation.

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Appeal

Any party may appeal the decision in writing to the Superintendent of the findings of the formal procedure or a dismissal on the following bases:

Procedural irregularity that affected the outcome of the matter;
New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.

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Appeal

The school district will notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties.

Both parties will have a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome.

The Superintendent or designee, as a further impartial decision-maker, will review the comprehensiveness and accuracy of the investigation and the conclusions, and issue written findings to both the complainant and respondent within thirty (30) school days of the appeal.

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Agenda

Bullying
Title IX
Civil Rights
Q & A

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Overview

District has non-discrimination and harassment procedures.
Prohibits discrimination, harassment or violence against any employee, student or third party on the basis of his or her actual or perceived race, color, creed, ethnicity, religion, national origin, sex/gender, homelessness, disability, sexual orientation, gender identity or age.
Retaliation is prohibited.
May still report to law enforcement or DCF.

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Overview

Discrimination on the basis of race, color, and national origin is prohibited by Title VI of the Civil Rights Act of 1964
Sex discrimination is prohibited by Title IX of the Education Amendments of 1972
Discrimination on the basis of disability is prohibited by Section 504 of the Rehabilitation Act of 1973
Age discrimination is prohibited by the Age Discrimination Act of 1975

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Overview

603 CMR 26.07 - All public schools shall strive to prevent harassment or discrimination based upon students' race, color, sex, gender identity, religion, national origin or sexual orientation, and all public schools shall respond promptly to such discrimination or harassment when they have knowledge of its occurrence.

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Overview

Harassment is conduct that creates, or contributes to the creation of, an intimidating or hostile environment for a student because of their race, color, religion, national origin, sex, gender identity, or sexual orientation. Like bullying, harassment can take many forms, including verbal statements, online or social media activity, graffiti, and violent or threatening physical conduct

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Reporting

Everyone in the school community is responsible for immediately reporting incidents of harassment, discrimination and/or retaliation, by anyone, in any form, that are directed at or witnessed by them at school or at a school sponsored event or of which they otherwise learn.
An individual may report to either the principal of the relevant school site or appropriate discrimination/harassment complaint official at his or her discretion. Students may additionally report incidents that they believe involve harassment or discrimination to their guidance counselor, any teacher, administrator or any member of the support staff, and the staff member will refer the complaint to the principal or the discrimination/harassment complaint official.
Oral reports are accepted.

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Reporting

If one of the discrimination/harassment complaint officials is the person alleged to be engaged in discrimination/harassment, the complaint may be filed with one of alternate officials or any other school employee the student or employee chooses.
Building principals are building level coordinators for any of these complaints.

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Investigation Procedure

Review District protocols - WPS Discrimination Response Protocol - CURRENT - Google Docs

Create safety measures for alleged victim
Upon receipt of a report of discrimination to a Principal or District Administrator, the Investigator assigned will be a WPS Administrator such as a Principal, Assistant Principal, or Human Resources Administrator who will conduct a thorough investigation. This investigation may include interviews with the Reporter, Target/Complainant, Witnesses, and the Aggressor/Respondent, as well as a review of other relevant sources of information.
Whenever possible, within 24 hours of the Investigator being assigned, the parent/guardian/caregiver of the Target/Complainants and/or Aggressor/Respondent should expect communication from the Investigator to review the complaint and protocol.

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Investigation Procedure

Within 15 school days will do investigation
Within 15 school days of completing investigation will issue written decision
Parents/caregivers will receive a written notice with a determination of the findings that explains the decision while respecting confidentiality protocols.
Corrective Action, Educational Action, and /or Therapeutic Action may be administered regardless of whether the Non-Discrimination Policy has been violated in order to uphold a districtwide commitment to combat bias and hate.

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Appeal process

Once the Investigator determines that discrimination has/has not occurred and issues the report of such findings, the Target/Complainant and/or Aggressor/Respondent may appeal the findings to the Superintendent within ten (10) school days of receiving the findings notification. This should be done in writing via text, email, or letter.

The Superintendent, or their designee, will then have ten (10) school days to determine whether or not to accept the appeal by reopening the investigation.
If the Superintendent/Designee reopens the investigation, the Superintendent/Designee will become the Investigator and perform further investigation as needed.
If the Superintendent/Designee does not reopen the investigation, the Superintendent/Designee will inform the appealing party.
The Superintendent/Designee’s decision is not appealable at the school district level but may be appealed based on applicable Massachusetts and federal laws.

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Case Studies

A female and male high school student record themselves engaging in intercourse when they are in a relationship. After they break up, the male high school student, Student A, posts the recording on a chat. Another male student on the chat, Student B, shows the video to another student in the cafeteria. Student A is saying other negative comments about the female student on the chat in addition to the posting of the video.

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