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Identifying �Discrimination and Harassment in Schools�SB23-296 Training – Module 1 for All School Employees

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Agenda for this Module

Why we do this work
Identifying Discrimination and Harassment

Offensive Unwelcome Conduct or Communication
Connected to a Protected Class
Meeting a Defined Standard of Harm

Practice

Examples Based on Protected Classes
Bullying versus Discrimination and Harassment

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For our agenda today, we want to start with our why. We don’t do compliance for the sake of compliance. We do it so we can make a difference for our kids. So we can keep our schools as safe places of learning. That’s why we start with our why.

Then, we’ll start breaking down how to identify discrimination and harassment. We’ll put this into three buckets.

First, what offensive conduct or communications could be discrimination or harassment?

Second, what are protected classes and what does it mean to be connected to a protected class?

Third, how do we know that the communication is significant or serious enough to rise to the level of being discrimination or harassment? That section talks about how we know that the conduct or communication meets the law’s defined standard or harm.

After we talk through how the law defines these things, we’ll practice! We’ll do some examples based on protected class.

And then we’ll dig in a little bit on how bullying and harassment are similar and different. We know this can be confusing!

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Why we do this work

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Strong systems to prevent and respond to discrimination and harassment ensure that every student feels welcome, safe, and valued – allowing them to learn, thrive, and grow.

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Discrimination and harassment disrupts and undermines that vision for all students.

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Lowered academic achievement and aspirations

Increased anxiety

Loss of self-esteem and confidence

Depression and post-traumatic stress

General deterioration in physical health

Sleep disruption

Self-harm and suicidal thinking

Feelings of alienation in the school environment

Absenteeism and avoidance

And we do this work because there is no denying that discrimination and harassment can disrupt this vision. There is a ton of research about the impact of discrimination and harassment on students.

Some of those impacts are highlighted in the boxes on this slide:

Lowered academic achievement and aspirations.

Depression and post-traumatic stress.

Self-harm and suicidal thinking.

Increased anxiety.

General deterioration in physical health.

Feelings of alienation in the school environment.

Loss of self-esteem and confidence.

Sleep disruption. We all know how important sleep is to our kids.

And absenteeism and avoidance. Kids cannot learn and take advantage of all the benefits of schools if they aren’t there and they aren’t participating.

We are not saying here that if you see these things in your students, they must be experiencing discrimination and harassment. These categories could have many root causes, including underlying mental health or exposure to trauma.

There is so much of what our students experience that is outside of our control. However, to the extent these impacts are arising from discrimination and harassment that is occurring in the school, this is where we have a unique power to intervene.

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I’m Jasmine and I’ve been dealing with harassment from a group of boys at school. They make inappropriate comments about my body, spread rumors, and follow me in the halls. Then it got even worse: a boy created a fake AI picture of me naked and texted it to his friends. I can’t sleep, I can’t focus on my classes, I am too embarrassed to tell anyone. Sometimes it feels easier to not get out of bed and just pretend I am sick. Some days, I have even darker thoughts.

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Seeing the impact through individual narratives.

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I am Carlos, and this is my brother Luis. We just got here last year and the one thing we were really excited about was joining our middle school soccer team. We went to the tryouts, and I think we did great. We’ve learned enough English that we don’t have any problems interacting with the other players. At the end, the coach typed something into his Google translate and showed us in Spanish. It said: “You boys are playing well. But come try out next year when you are fluent in English so it will be easier to communicate.”

The kids weren’t any better. There was this one kid who would walk the halls and point at any kid who looked Hispanic, tap them on the head, and say: “you’re deported,” and “you’re deported.” Another kid had a sign where he wrote “ICE” and then he’d point at us and make a pretend calling sign with his hand. It’s so hard to focus and stay motivated in school when we feel scared, anxious, and excluded.

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I’m Sean, and I’m in fifth grade. I’m one of the few Black kids in the school. When I was younger, kids said stuff they didn’t realize was offensive. Now I feel like they are learning what has the most impact on me and they are doing it intentionally. They’ve been calling me the N-word, touching my hair because they know it annoys me, and blaming me for things that I didn’t even do. The worst part is that my teacher always believes them. When I told my teacher about the N-word, he apologized but made excuses for kids, saying they don’t really know what it means. I got so angry last week, I pushed one of the bullies and I was the one that ended up with a suspension for a day.

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Why we do this work: ��Because you play a role in what happens next in each of these stories.

Building culture in your school to make students feel safe, welcome, and valued.
Responding in the moment to show that bullying, discrimination, and harassment are not ok.
Reporting potential discrimination or harassment to the designated individual in your school or district and cooperating with any future investigation.
Ensuring that a student does not experience retaliation for reporting discrimination or participating in an investigation.
Supporting students through this process to eliminate the disruptions and harms caused by discrimination and harassment.

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Why do we do this work?

Because for the students in those stories, for the students that you work with every day, you play an important role in what happens next.

Do they get what they need to disrupt the harm?

Or does it continue and get worse, disrupting learning and that ultimate vision of the happy student in their graduation robe?

Here’s how you make a difference:

By building culture in your school to make students feel safe, welcome, and valued.

By responding in the moment to show that bullying, discrimination, and harassment are not ok.

By reporting potential discrimination or harassment to the designated individual in your school or district and cooperating with any future investigation.

By ensuring that a student does not experience retaliation for reporting discrimination or participating in an investigation.

By supporting students through this process to eliminate the disruptions and harms caused by discrimination and harassment.

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And this work is required by law.

In 2023, the Colorado legislature passed SB23-296.
It sets a specific definition for discrimination and harassment in Colorado public schools.
Schools must have a policy and procedure on how discrimination and harassment is reported, investigated, and remediated.
Students and their families can file a complaint with the school or district if they are experiencing discrimination or harassment from other students or from the employees and contractors working in schools.
It requires this training!
These definitions and legal obligations live in Colorado Revised Statutes 22-1-143. You’ll see that citation a lot in this training.
There are other state and federal laws on discrimination. However, this training focuses on the definitions and obligations in this state law focused on schools.

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And, we do this work because it is required by law!

In 2023, the Colorado legislature passed SB23-296.

It sets a specific definition for discrimination and harassment in Colorado public schools.

Schools must have a policy and procedure on how discrimination and harassment is reported, investigated, and remediated.

Students and their families can file a complaint with the school or district if they are experiencing discrimination or harassment from other students or from the employees and contractors working in schools.

It requires this training!

These definitions and legal obligations live in Colorado Revised Statutes 22-1-143. You’ll see that citation a lot in this training.

There are other state and federal laws on discrimination. However, this training focuses on the definitions and obligations in this state law focused on schools.

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What did the legislature require for this training?

Recognizing harassment or discrimination, including indicators of grooming and child sexual abuse
The appropriate immediate response when harassment or discrimination is reported to or witnessed by an employee
Reporting harassment or discrimination to the public school or school district

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What did the legislature require for this training?

If the employee has direct supervision of students, the following:

The public school’s procedure for responding to allegations of harassment or discrimination
The difference between the public school’s harassment or discrimination policy adopted pursuant to this section and other federal civil rights laws as well as mandatory reporting requirements in state law
Best practices for avoiding victim-blaming; the effect of trauma on victims of harassment or discrimination; communicating with victims sensitively, compassionately, and in a gender-inclusive and culturally responsive manner; and the impact of harassment or discrimination on students with disabilities
The types of supportive measures available to students and the provision of effective academic, mental health, and safety accommodations for students who report harassment or discrimination

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If the employee has direct supervision of students, which we think includes pretty much everyone working in a school, it includes:

The public school’s procedure for responding to allegations of harassment or discrimination

The difference between the public school’s harassment or discrimination policy adopted pursuant to this section and other federal civil rights laws as well as mandatory reporting requirements in state law

Best practices for avoiding victim-blaming; the effect of trauma on victims of harassment or discrimination; communicating with victims sensitively, compassionately, and in a gender-inclusive and culturally responsive manner; and the impact of harassment or discrimination on students with disabilities

The types of supportive measures available to students and the provision of effective academic, mental health, and safety accommodations for students who report harassment or discrimination

Yes, it is a lot! But we’ll do our best to keep it as simple as possible because we recognize that you have a lot of training to do and not enough time in your day to do it all.

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Identifying Discrimination and Harassment

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Let’s start with the basic concept from C.R.S. § 22-1-143

[Offensive Unwelcome Conduct or Communication]

+

[Connected to a Protected Class]

+

[Meeting a Defined Standard of Harm or Impact to the Student]

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Discrimination or Harassment under C.R.S. § 22-1-143

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We’ll start with our basic concept from our law defining discrimination and harassment in our public schools, Colorado Revised Statutes section 22-1-143.

For all our math teachers out there, we’ve got a short formula of three things that, when you add them together, we have something that meets the definition in this law for discrimination and harassment.

The first part of the equation is offensive and unwelcome conduct or communication.

Not to worry, we are going to unpack each one of these in the upcoming slides.

The second part of the equation is that the conduct or communication is connected to a protected class. You are going to learn a lot about protected classes today.

And the third piece we add to our equation is that what is happening to the student must meet a defined level of harm. This is important because conduct or communication has to rise to a certain level or type of impact in order to qualify as discrimination and harassment. A single comment or a one time action might not get there unless it is really serious. We’ll talk through where the law draws the line. And just because it doesn’t reach that line doesn’t mean the conduct is ok or consistent with your expectations for how kids treat other kids or how adults treat kids. It just means that it might not qualify as discrimination or harassment if it doesn’t meet that line.

When we add these three things together, we have a situation that meets the definition of discrimination or harassment in our Colorado law defining discrimination in schools.

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Offensive Unwelcome Conduct or Communication

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Unwelcome Conduct or Communication

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Type	Examples
Physical conduct	Physical assaults; damaging personal property; or sexual contact.
Verbal conduct	Verbal harassment; stereotyping by protected class; use of slurs; intentional refusal to use a chosen name or form of address; or denial of a benefit or opportunity.
Written communication	Text messages; online messaging; or messages on bathroom stalls.
Pictorial or visual communication	Drawings of offensive images such as swastikas or nooses; AI-created images; or nude photos.

We’ll start with some examples here, but first let’s zoom out to the big picture.

This law covers conduct or communication from the adults working in a school that impacts a student or student.

And it also covers conduct or communication from the students toward other students.

When people talk about complaints, you might hear them referred to as “adult/student” or “student/student” complaints. That refers to who is alleged to have engaged in the unwelcome conduct or communication and who is being impacted.

The other big picture piece is that these are just examples of different types of conduct and communication. But students can get pretty creative about how to cause harm to other students. And the adults too. Pretty much anything is going to fall into the broad terms of conduct or communication.

It could be physical conduct like a physical assault, or damaging a student’s personal property while at school, or it could be sexual contact like brushing a student’s breasts while passing them in the hallway.

It also includes verbal conduct like the use of slurs or intentionally calling them by a name or a form of address that they no longer use. A lot of things that could fit into this category. It could also be a communication that tells a student that they can’t participate in a class or extra curricular. It could be the words of a teacher that treat a student differently from other students.

Other examples would come from written communication like text messages or online messaging or something written on a bathroom stall.

Or they could be pictorial or visual communication like drawings of offensive images such as swastikas or nooses. Or they could be AI-created images or even nude photos of students.

Any of these things would have to be unwelcome to qualify in this first bucket. For example, if students are using language with each other that is not unwelcome, then it’s not going to be discriminatory.

But, a big caveat, what if those same kids are “joking around” with each other and their language or conduct is impacting bystanders or people overhearing the communication or conduct. That could fall into our bucket here of unwelcome conduct or communication, even if it wasn’t directed at the bystanders.

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Objectively Offensive

The unwelcome conduct or communication must be “objectively offensive to a reasonable individual who is a member of the same protected class.” C.R.S. § 22-1-143(1)(d)(I).

Example: If the communication is directed toward a Jewish student, you would consider whether most individuals identifying as Jewish would agree that the communication was offensive.

Example: If the conduct is directed toward students with disabilities, you would consider whether it was objectively offensive to individuals with disabilities.

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In addition to being unwelcome, it must be objectively offensive.

What do we mean by objective here? It means that your average person also finds it offensive. So it can’t just be about how the one student feels, it has to be what your average student feels.

However, our Colorado statute also has a very important distinction. It has to be objectively offensive to an individual who is a member of the same protected class.

We have two examples here on the slide: If the communication is directed toward a Jewish student, you would consider whether your average individual identifying as Jewish would agree that the communication was offensive.

OR: If the conduct is directed toward students with disabilities, you would consider whether it was objectively offensive to individuals with disabilities.

Another example would be: if the conduct is directed toward a Black individual, you would consider whether it is objectively offensive to Black individuals.

It’s not a perfect science and it may feel challenging to assess what is objectively offensive to a member of a protected class, particularly when people have multiple identities or when you are not a member of the protected class.

However, the more important part is that we are not denying the offensive nature of conduct or communication just because we personally are not offended because we are not a member of the protected class.

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Connected to a Protected Class

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A protected class is a group of people who are legally protected from discrimination and harassment under federal or state civil rights laws because of specific characteristics they have.

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Protected Classes Covered in § 22-1-143

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Disability

Race

Color

Sex

Sexual Orientation

Gender Identity

Gender Expression

Religion & Creed

Age

National Origin

Ancestry

Family Composition

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Meeting a Defined Standard of Harm or Level of Impact to the Student

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Harm Category #1:��Unreasonably interferes with access to a service, opportunity or benefit.

Focus on the impact to the student.

Did the conduct or communication have the purpose or effect of unreasonably interfering with the student’s access to their educational service, opportunity, or benefit?

Example: Student decides not to join the robotics club after some students repeatedly make comments like: “This club isn’t for girls.” “And especially not Mexican girls.”

Protected classes: sex, national origin.
Harm or impact: student loses out on the opportunity to participate in the school’s robotics club.

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To figure out whether we’re going to meet the standard, I’m going to divide this up into three “harm categories.” These come from the legislature’s definitions in C.R.S. 22-1-143.

Harm category #1 is whether the conduct or communication unreasonably interferes with access to a service, opportunity, or benefit.

Did the conduct or communication have the purpose or effect of unreasonably interfering with the student’s access to their educational service, opportunity, or benefit?

That is a lot, so focus on the word access here. Was the student deprived of access to something because of their protected class. Some students get access, others do not. The difference between the two is their protected class.

For example, a student decides not to join the robotics club after some students repeatedly make comments like: “This club isn’t for girls.” “And especially not Mexican girls.”

What protected classes do you see here?

Did you name sex? Yes, that’s right.

Did you also name national origin as an implicated protected class. Right again.

They are discouraging her access to a club because of her sex and because she has Mexican heritage.

The harm or the impact is that she loses out on access to an opportunity to participate in the school’s robotics club.

That is harm category #1.

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Harm Category #2: Hostile Environment

Focus on the impact to the student.

Did the conduct or communication have the purpose or effect of creating an intimidating, hostile, or offensive educational environment?

Note: “Petty slights, minor annoyances, and lack of good manners” do not generally constitute harassment or discrimination.

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I’m Sarah, and I’m a junior in high school. I posted on social media about freeing the hostages because I care deeply about what’s happening in Israel — my family is Jewish, and we have family and friends in Israel. I just wanted to express my feelings. But after that post, some classmates started making comments at school. It was particularly bad with one student. She told me that Hitler was justified in targeting my people. She called me names like ‘baby killer’ and told me to ‘go back to Israel.’ It has been really scary. One day she confronted me at an afterschool event, got in my face and said some truly horrible things. I had to leave. I am afraid to tell my parents or any of my teachers. I am pretending to be fine, but I am not fine. My parents are asking me why my grades have dropped. I don’t know what to do.

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Consider a hypothetical about Sarah...

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What do you see and hear?

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Conduct:

Unwelcome and objectively offensive verbal harassment.

Protected classes:

Antisemitism, anti-Zionism, and anti-Isreal bias can include elements of religion, national original, and ancestry discrimination.

Meeting Standard of Harm or Impact:

Feelings of fear and anxiety at school. She’s not ok.
Her grades are dropping as a result.
Had to leave an afterschool event.
The environment is intimidating, hostile, and offensive. And it is interfering with her access to education and educational opportunities.

What did you see and hear in this hypothetical?

What was the conduct or communication?

[pause]

Did you see unwelcome and objectively offensive verbal harassment? And it was absolutely unwelcome, right?

Now, for the protected classes: antisemitism, anti-Zionism, and anti-Isreal bias can include elements of religion, national origin, and ancestry discrimination. You don’t need to tease out exactly which one to spot the issue here. Just know that when your Jewish students are experiencing these types of harms, there are protected classes that are implicated.

Some words on the distinction between these terms.

According to the Anti-Defamation League or ADL, antisemitism refers to prejudice, discrimination, or hostility directed at Jewish people. It is generally based on negative stereotypes, myths, or misinformation about Jews, Judaism or Jewish identity. Antisemitism can target individuals or Jewish people as a collective.

Zionism is the movement for self-determination and statehood of the Jewish people in their ancestral homeland, the land of Israel. Anti-Zionism is antisemitic, in intent or effect. Anti-Zionism is distinct from criticism of the policies or actions of the government of Israel in that it attacks the foundational legitimacy of Jewish self-determination and statehood. Some people may mistakenly use the term anti-Zionism to describe those who oppose specific policies of the Israeli government, but who still uphold and support Israel’s right to exist.

Can you see some of those distinctions in hypothetical?

The student targeting Sarah isn’t expressing a criticism of the policies and actions of the Israeli government. She is saying truly horrid things like, Hitler was justified in targeting her people.

What Sarah is experiencing meets the standard of harm or impact in our Colorado statute, 22-1-143.

She has feelings of fear and anxiety at school. Like she says, she is not ok.

Her grades are dropping as a result.

She had to leave an after school event.

We land in both of the harm category buckets that we just discussed:

The environment is intimidating, hostile, and offensive.
And it is interfering with her access to education and educational opportunities.

Acts of antisemitism in schools have been on the rise and the horrifying attack that happened in Boulder makes it even more important that our schools are safe and welcoming places where we disrupt and address hate at the earliest ages.

We want to be a space where Sarah can come forward and trust that the school will help her end the discrimination and harassment she is experiencing.

If you need support on navigating these issues in your schools, please do reach out to the Anti-Defamation League for their assistance.

We’ll talk more about other forms of national origin and ancestry discrimination in just a bit.

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Harm Category #3:

Was submission to, objection to, or rejection of the conduct used against the student or threatened to be used as a basis for educational decisions affecting the student?
Was submission to the conduct or communication explicitly or implicitly made a term or condition of the student’s access to an educational service, opportunity, or benefit?

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Harm Category #3: Examples

Retaliation is prohibited.

A student files a complaint about a teacher repeatedly using stereotypes of the student’s protected class. Afterward, the teacher lowers the student’s participation grade and calls them “disruptive.”

Includes “quid pro quo” discrimination. You do this for me, I will do this for you.

A student with ADHD is told by a teacher that if they agree to not use their extra time accommodations, they can stay in the honors program.

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The first is retaliation.

The most common definition of retaliation is when school employees take a negative action against a student because they reported discrimination or harassment, filed a complaint, or helped with an investigation or legal process related to those issues.

An example of that is here on the slide: A student files a complaint about a teacher repeatedly using stereotypes of the student’s protected class. Afterward, the teacher lowers the student’s participation grade and calls them “disruptive.”

That would be retaliation for raising the concern about discriminatory conduct.

In the language of the “harm category” from the previous slide: it is an example of when objection to or rejection of the discriminatory conduct is used against the student as a basis for educational decisions – here, the lowered grade.

The second common example here is what is sometimes called “quid pro quo” discrimination. It means (loosely), you do this for me, I will do this for you.

The example we have here is that a student with ADHD is told by a teacher that if they agree not to use their extra time accommodations, they can stay in the honors program. If you give up your legal rights as an individual with disabilities, I will give you this benefit.

This phrase quid pro quo is also commonly used in the context of sexual harassment. If you engage in this sexual conduct with me, I will give you this benefit in return.

In other words, you must put up with this unwelcome conduct or communication based on your protected class in order to have access to this service, opportunity, or benefit in the school environment.

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Now that you know more about each category, let’s loop back to the standard one more time.

[Offensive Unwelcome Conduct or Communication]

+

[Connected to a Protected Class]

+

[Meeting a Defined Standard of Harm]

=

Discrimination or Harassment under C.R.S. § 22-1-143

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What about federal laws?

Yes! There are federal laws that prohibit discrimination and harassment in schools too.

Title VI of the federal “Civil Rights Act of 1964” – prohibits discrimination on the basis of race, color, and national origin or ancestry
Title VII of the federal “Civil Rights Act of 1964” – prohibits discrimination in employment
Title IX of the Education Amendments of 1972 -- prohibits discrimination on the basis of sex
Section 504 of the federal “Rehabilitation Act of 1973” and Title II of the Americans with Disabilities Act and the Individuals with Disabilities Education Act (IDEA) – prohibit discrimination against students with disabilities

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You have heard me talk a lot about our Colorado law, section 22-1-143. Aren’t there other laws that are relevant here?

Yes, absolutely! We have both state and federal laws that protect individuals from discrimination and harassment.

In terms of federal law, there is:

Title VI of the federal “Civil Rights Act of 1964” – prohibits discrimination on the basis of race, color, and national origin or ancestry

Title VII of the federal “Civil Rights Act of 1964” – prohibits discrimination in employment

Title IX of the Education Amendments of 1972 -- prohibits discrimination on the basis of sex

Section 504 of the federal “Rehabilitation Act of 1973” and Title II of the Americans with Disabilities Act and the Individuals with Disabilities Act (IDEA) – prohibit discrimination against students with disabilities

For the sake of making this training a reasonable length of time, I am not going to go into depth on each one of these.

However, what we are teaching you today is basically the broadest definition of discrimination and harassment under Colorado law for public schools. If you think of this as a funnel, we are training you to capture a broad amount of conduct and communication that could be discrimination and harassment so it can be funneled to your experts to help decide which laws are implicated. If you are capturing things that could meet the definitions under Colorado law for public schools, you aren’t going to be missing things that could also qualify under the Colorado Anti-Discrimination Act (known as CADA) and the federal laws on discrimination and harassment.

We can also offer a few guiding principles that are hopefully practical for all employees. [next slide]

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Can you simplify all this for me?

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Know your local policies!

Both state and federal laws should be incorporated into your school or district policies on discrimination and harassment. If you are following your policies, you should be following the law. You should always go back to those policies to remind yourself of the protected classes and the definitions and standards for discrimination and harassment under all the laws.

The first and most important thing is to know your local policies!

Both state and federal laws should be incorporated into your school or district policies on discrimination and harassment. If you are following your policies, you should be following the law. You should always go back to those policies to remind yourself of the protected classes and the definitions and standards for discrimination and harassment under all the laws.

Perhaps you are thinking now -- what local policies? Are those the things they sent us in orientation and I never read? Potentially, yes. But I would encourage you to go back to these policies when you think you might have spotted an issue that could be discrimination or harassment. They can be a guide to ensuring that you understand the standards and expectations of both state and federal law.

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Can you simplify all this for me?

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Consider: Is this a potential Title IX violation?

This is not intended to be a Title IX training. However, it is important that you always consider first whether something could be a Title IX issue – discrimination or harassment based on sex. Get that to your Title IX coordinator right away because the procedures to be followed under Title IX are very specific and need to be followed from the very beginning.

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Can you simplify all this for me?

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Consider: Do I reasonably suspect child abuse? If yes, report first to law enforcement as a mandatory report of child abuse.

There is some overlap between harassment and child abuse. This shows up most commonly in allegations of unlawful sexual behavior. Stop and report this to law enforcement first. Then immediately contact your Title IX coordinator if the abuse is sexual.

Reminder: a discrimination and harassment investigation must proceed after the law enforcement investigation, even if the report to law enforcement does not result in criminal charges.

My third point here is to ask yourself, do I reasonably suspect that the discrimination or harassment I am seeing between an employee and a student or sometimes even a student and student might be child abuse?

If yes, you must first report that to law enforcement or DHS as a mandatory report of child abuse.

There is some overlap between harassment and child abuse. This shows up most commonly in allegations of unlawful sexual behavior. That includes unwelcome touching of private parts or other sexual contact or sexual assault. Stop and report this to law enforcement first. Then immediately contact your Title IX coordinator if the abuse is sexual.

Why are we saying law enforcement here instead of DHS? Because most of the spaces where there is overlap here are crimes that need to be investigated by the police, rather than familial abuse that needs to be investigated to the Department of Human Services.

For example, if a student accuses a school employee of sexual assault or some sort of unlawful sexual contact, it is law enforcement that should investigate that situation first.

I want to briefly mention an issue here that can be a source of confusion. Sometimes a school will report something to law enforcement and law enforcement decides not to proceed with the investigation or not to move forward with criminal charges. That does not mean you are done. The school’s discrimination or harassment investigation must happen after that, you can’t just rely on what law enforcement did. The standards for discrimination and harassment are different from criminal standards. Always proceed with an investigation after law enforcement is done.

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Can you simplify all this for me?

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Use your designated local experts!

This training is designed for all employees. Some employees should have additional training on or experience with the differences between all the state and federal nondiscrimination laws and the standards and procedures associated with all those laws. Your primary role is to get the right information to the right people. Let them help you implement all the nuances.

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Practice!

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Examples Based on Protected Classes

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Sexual Harassment: Student to Student

Think back to our first example with Jasmine.
Unwelcome conduct:

Inappropriate comments about her body, spreading rumors, and making her uncomfortable by following her in the halls.
Another student created a fake AI picture of her naked and texted it to his friends.

Protected class: Sex
Meeting Standard of Harm or Impact:

Hostile, intimidating, and offensive environment.
Can’t focus in class. Intentionally not going to school and missing out on educational opportunities and benefits. Impacting her mental health.

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Let’s first think back to our example of Jasmine from the beginning.

She said that the boys make inappropriate comments about her body, spread rumors, and follow her in the halls. Then it got even worse: a boy created a fake AI picture of her naked and texted it to his friends.

Unwelcome and objectively offensive conduct and communications? Absolutely, yes.

What is the protected class?

It’s her sex. They are treating her differently because she is female. The boys are not making those same comments about other boys. She is being treated differently because of her sex.

Does it meet the standard of harm or impact?

Yes, the environment at school is hostile to her, it is intimidating to her, and it is offensive to her.

She can’t focus in class. She is intentionally not going to school and missing out on educational opportunities and benefits. It is impacting her mental health.

This is unwelcome and objectively offensive conduct and communications based on her sex that meet the standard of harm and impact. That is discrimination and harassment under our state law definition.

Now, think back to our guiding principles around how to simplify all this.

If a student confides in you with this information or if you see it happening in the halls, who are you taking this information to?

Yes, your Title IX coordinator! Thank you!

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Sexual Harassment: Adult to Student

A school employee has been sending an increasing number of text messages to a student. One of the texts says that a kiss might help bring the student’s grade up.

If the student shows you this text, what are your next steps.

Listen actively, but don’t ask the student for the whole story yet because the student will have to tell it again to a Title IX investigator.
You recognize this as a type of harassment under Title IX (conditioning a benefit on unwelcome conduct, a kiss). You tell the student that you are going to report this to the Title IX coordinator so they can take some immediate steps to address this.
Both A and B.

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Sexual Harassment: Adult to Student

A school employee has been sending an increasing number of text messages to a student. One of the texts says that a kiss might help bring the student’s grade up.

If the student shows you this text, what are your next steps.

Listen actively, but don’t ask the student for the whole story yet because the student will have to tell it again to a Title IX investigator.
You recognize this as a type of harassment under Title IX (conditioning a benefit on unwelcome conduct, a kiss). You tell the student that you are going to report this to the Title IX coordinator so they can take some immediate steps to address this.
Both A and B.

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Grooming can be sexual harassment

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Unusual interest in a particular student by an adult.
Excessive gift-giving or special treatment.
Attempts to isolate the student from peers.
Engagement in inappropriate conversations or physical contact.

Educators should be vigilant for signs of grooming, such as:

Report to law enforcement if you reasonably suspect child abuse, which includes sexual abuse, unlawful sexual behavior, and attempted unlawful sexual behavior.
Always report to your leadership and Title IX coordinator.
Follow harassment discrimination and harassment procedures.

ACTIONS TO TAKE:

We have added this example because it is so important to talk about the serious nature of grooming in the school environment.

As educators, we must be vigilant for signs of grooming by the adults in schools.

There is no definition of grooming in Colorado law and there is no crime called “grooming.” However, it is still not acceptable in our schools. It can lead to the loss of a job and the loss of a license.

Grooming is generally understood to involve a series of manipulative behaviors aimed at getting a minor’s trust in order to facilitate future criminal sexual abuse.

Things to look out for include:

Unusual interest in a particular student by an adult.

Excessive gift-giving or special treatment.

Attempts to isolate the student from peers.

Engagement in inappropriate conversations or physical contact.

If you suspect grooming, here are the actions to take:

If you reasonably suspect that child abuse has occurred, which includes actual or attempted sexual touching or sexual acts between a school employee and a student, tell your Title IX coordinator and your school leader and immediately report it to law enforcement as a mandatory report of child abuse.

If you don’t suspect that something sexual has been attempted or has actually occurred but you see these manipulative behaviors that may be trying to groom a student for future sexual abuse, contact your principal and your title IX coordinator immediately.

They will coordinate the next steps for what must occur under discrimination and harassment procedures.

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National origin discrimination

Protects individuals based on the country they (or their family) come from, or their ethnic background. These protections extend to students who are or are perceived because of their shared ancestry or ethnic characteristics to be Jewish, Israeli, Muslim, Arab, Sikh, South Asian, Hindu, Palestinian, or any other faith or ancestry.

Example: A group of middle school Muslim girls are being called terrorists and students are attempting to remove their hijabs.
Example: Jewish students are exposed to swastikas on whiteboards at school and the bathroom stalls had white supremacist slogans stating conspiracy theories about Jewish people.

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Now we are switching gears to another protected class where there are high numbers of students experiencing discrimination and harassment in our schools. And that is national origin discrimination.

National origin as a protected class covers individuals based on the country they (or their family) come from, or their ethnic background.

These protections extend to students who are or are perceived because of their shared ancestry or ethnic characteristics to be Jewish, Israeli, Muslim, Arab, Sikh, South Asian, Hindu, Palestinian, or any other faith or ancestry.

Our first example here relates to a group of middle school Muslim girls. They are being called terrorists by other students and some students are bullying them by pulling off their hijabs at school. This implicates national origin as a protected class.

Under our second example, we see that Jewish students are being exposed to swastikas on whiteboards at school and the bathroom stalls had white supremacist slogans stating conspiracy theories about Jewish people. As we mentioned before when we talked about the example of Sarah, sometimes harassment can be targeted to a specific student and sometimes it can be directed at an entire group.

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National Origin: Let’s go back to the experience of Carlos and Luis.�

Coach tells the boys that they can’t join the middle school soccer team because they don’t speak English fluently.

Other kids are making comments about kids that look Hispanic getting deported. Telling Carlos and Luis that they are going to call ICE and get them deported.

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What is the unwelcome conduct or communication?

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Let’s go back to the experience of Carlos and Luis.�

National origin is a protected class that covers a student’s ethnicity, ancestry, country of origin, or language background.

The treatment of Carlos and Luis is connected to a protected class, their national origin. Why? Because the unwelcome conduct seems connected to the fact that they come from outside the United States and their first language is not English.

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How is it connected to a protected class?

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Let’s go back to the experience of Carlos and Luis.�

Yes. An educational service, benefit, or opportunity includes anything offered or sponsored by a school that contributes to a student’s learning, growth, or development. It includes sports and extracurriculars.

Carlos and Luis weren’t allowed to participate on the soccer team even though they knew enough English to participate safely and meaningfully.

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Did the unwelcome conduct impact their access to educational benefits or opportunities?

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Let’s go back to the experience of Carlos and Luis.�

Yes. This is the result of unwelcome conduct where kids are being tapped on the head and told they will be deported if they look Hispanic. And other kids are threatening to call ICE on Carlos and Luis.

Carlos and Luis are feeling scared, anxious, and excluded.

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Did the unwelcome conduct create an intimidating, offensive, or hostile environment at school?

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Gender Identity

Gender identity: “Gender identity” means an individual's innate sense of the individual's own gender, which may or may not correspond with the individual's sex assigned at birth. § 24-34-301(10), C.R.S. Transgender means the individual’s gender identity is different from their sex assigned at birth. Cisgender means the individual’s gender identity and their sex assigned at birth are the same.

Example: A transgender student is physically assaulted and injured by students who told the student to “stop pretending you are something you are not.” They call the transgender student by the name the student used before transitioning (called “deadnaming”) and intentionally use the wrong pronouns with the student (“misgendering”).

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With all our categories here, we’ll start with the definition and then talk about an example.

Under Colorado law, gender identity is defined as an individual's innate sense of the individual's own gender, which may or may not correspond with the individual's sex assigned at birth.

If an individual’s gender identity is the same as their sex that was assigned at birth, that is called cisgender.

Transgender means an individual has a gender identity that is different from their sex assigned at birth.

Under our example here, a transgender student is physically assaulted and injured by students who told the student to “stop pretending you are something you are not.” They call the transgender student by the name the student used before transitioning (called “deadnaming”) and intentionally use the wrong pronouns with the student (“misgendering”). They aren’t doing this because of their beliefs or because of their religion, they are doing it intentionally because they know it causes harm. They are doing it out of animus and to bully a student.

We have unwelcome conduct and communications, connected to a protected class, that is creating a hostile environment for a student. Intervention is critical to disrupt what is happening to this student.

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Sex, sexual orientation, gender identity, and gender expression are protected classes under Colorado law.

Title IX and Colorado state laws protect students from discrimination on the basis of the biological characteristics of sex.

Colorado law also covers discrimination and harassment based on sexual orientation, gender identity and gender expression.

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We are shifting gears again and now we’ll talk about four of our protected classes in Colorado law – sex, sexual orientation, gender identity, and gender expression.

As we talked about before, Title IX protects students from discrimination on the basis of sex.

You have probably heard that there have been shifting and changing interpretations under federal law for what is covered under the umbrella of the term sex.

However, those national conversations don’t impact the fact that Colorado law covers these four things expressly:

Sex

Sexual orientation

Gender identity and

Gender expression

We’ll talk about these categories to make sure we have a basic understanding of the differences.

I also want to acknowledge that this is a statewide training and there are differences of opinion and beliefs on these topics. However, I know we all agree that we don’t want to see or allow kids to be bullied or harassed, no matter what the protected class is. If a student is being physically or sexually assaulted in the halls, we intervene. We don’t think about what the student’s protected class is to decide if we intervene. I know we are on common ground here that we want all kids to be safe and welcome in school.

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Gender Expression

Gender Expression: “Gender expression” means an individual’s way of reflecting and expressing the individual’s gender to the outside world, typically demonstrated through appearance, dress, the name they choose to use, and how they choose to be addressed. § 24-34-301(9), C.R.S.

Example: A student who identifies as male and was assigned male at birth is mocked by students because he paints his nails and keeps his hair long. Some students shoved him into a locker and told him to “stop looking like a girl.”

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Next, let’s talk about gender expression.

Gender expression is defined in Colorado law to mean an individual’s way of reflecting and expressing the individual’s gender to the outside world, typically demonstrated through appearance, dress, and behavior.

This can apply to transgender or cisgender students.

In our example, we have a cisgender male student -- whose gender identity and sex assigned at birth are the same – but who expresses himself in ways that other kids mock as “female.” Because he paints his nails and wears his hair long. Some students shove him into a locker and told him to “stop looking like a girl.”

This category is really about our stereotypes about how girls are supposed to act and how boys are supposed to act. When students are harassed because they aren’t conforming to those stereotypes, that is conduct or communication that is based on their gender expression as a protected class.

These two categories that we just discussed – gender identity and gender expression – don’t have anything to do with who a student might be attracted to our what gender student they might want to date. Those two things are totally separate. That is our next category.

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Sexual Orientation

Sexual orientation: “Sexual orientation” means an individual's identity, or another individual's perception thereof, in relation to the gender or genders to which the individual is sexually or emotionally attracted and the behavior or social affiliation that may result from the attraction. § 24-34-301(24), C.R.S.

Example: A student is harassed because they are dating someone of the same sex.

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Religion

Religion: Protects individuals because of religious beliefs, practices, or lack of religion.

Example: A school refuses to make a reasonable accommodation for a Muslim student who asks for a space to pray during the day.

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Now, it might be a good time to pause here. Take a deep breath. Maybe do a big stretch. Let’s acknowledge we are moving really quickly here through protected classes. This may be brand new learning for some and deeply personal and lived experience for others. So, this is a good time to say thank you for being here and for doing this work – no matter where you are on the journey. And we’ll take that big breath.

Ok, let’s keep going on to our next protected class.

This is likely one we are all familiar with at a high level. Students are protected from discrimination or harassment on the basis of their religious beliefs, their religious practices, and even their lack of religion.

That protection applies to beliefs, practices, and observances—whether part of an organized religion or sincerely held personal beliefs. This means students and staff are protected from discrimination based on what they believe, how they pray, what they wear, and how they express their religion.

For example, a student who wears a hijab, a yarmulke, or a turban for religious reasons is entitled to equal treatment and cannot be excluded or harassed for that choice.

Schools are required to provide reasonable accommodations for a student’s religious practices unless doing so would cause undue hardship. That could include excusing absences for religious holidays, modifying dress code rules, or allowing quiet space for prayer—especially when the request doesn’t interfere with the educational environment.

For example, if a student asks to miss class for a religious observance like Yom Kippur or Eid, the school should excuse the absence and allow make-up work without penalty.

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Race and Color

Race: Protects against discrimination or harassment because of racial identity or characteristics.

Color: Protects against discrimination based on skin tone or complexion, even within the same racial group.

Example: A darker-skinned Latina student is harassed by her lighter-skinned peers.

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Next, another huge topic that we can’t do justice to in the short time we have today. Race and color as protected classes.

Race as a protected class protects against discrimination and harassment because of racial identity of characteristics.

Color protects against discrimination based on skin tone or complexion, even within the same racial group.

For example, if a darker-skinned Latina student is being harassed by her lighter-skinned peers, that could be harassment based on color.

In addition to skin color, race as a protected class also includes hair type, hair texture, hair length, or protective hairstyles.

For example, a student cannot be told to cut their Afro, braids, or locs to meet a dress code. That comes from a Colorado law called the CROWN Act.

In short, when you consider race-based discrimination, consider treatment that is based on appearance, identity, or expression associated with race.

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Race: Let’s go back to the experience of Sean�

Kids have been calling Sean by racial slurs. They are touching his hair because they know it bothers Sean. They blame Sean for things that happen at school and the teacher doesn’t believe Sean when he says he wasn’t responsible.

When he told his teacher about kids calling him the N-word, the teacher apologized but made excuses for kids, saying they don’t really know what it means.

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What is the unwelcome conduct?

This may feel like a lifetime ago, but let’s talk about the experience of Sean in our story from the very beginning.

What was the unwelcome conduct or communications?

Kids have been calling Sean by racial slurs. They are touching his hair because they know it bothers Sean. They blame Sean for things that happen at school and the teacher doesn’t believe Sean when he says he wasn’t responsible.

When he told his teacher about kids calling him the N-word, the teacher apologized but made excuses for kids, saying they don’t really know what it means. And in the end, Sean gets suspended for pushing one of the bullies that has been using racial slurs with him.

That conduct and communication would be objectively offensive to a reasonable member of the protected class.

Let’s pause for a moment to talk about intent versus impact.

It is not uncommon that we try to make kids feel better by saying – the other kids didn’t mean that or they didn’t intend to offend you. However, in this scenario, the downplaying of the behavior only deepens the harm to the student.

And for purposes of our equation to define discrimination and harassment, it is the impact that matters. Was it objectively offensive to a member of the protected class?

A way that I like to explain this is that we recognize intent, but we must reckon with impact.

Where the intent is important to recognize is in how we address the situation with the students who have caused the harm.

When the harm is unintentional – for example, consider a microaggression where a student does not know and does not understand why their words or actions were offensive – in these moments, we can help students learn so they don’t repeat the microaggression.

However, it is not true that words and actions can’t be discriminatory just because we did not intend to cause harm.

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Let’s go back to the experience of Sean�

Yes. The behavior of the other students created a hostile and offensive environment for Sean at school.

The lack of action and response by the educator allowed the hostility to continue and escalate.

The choice to suspend Sean without understanding the root of Sean’s behavior only deepened the harm and deprived Sean of access to instructional time.

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Did the unwelcome conduct create an intimidating, offensive, or hostile environment at school?

On the experience of Sean, did the unwelcome conduct create an intimidating, offensive, or hostile environment at school?

Yes, the behavior of the students created a hostile and offensive environment for Sean.

And the lack of action and response by the educator allowed the hostility to continue and escalate.

And the choice to suspend Sean without understanding the root of Sean’s behavior only deepened the harm and deprived Sean of access to instructional time.

We know that behavior in students is a form of communication. And when we look for root causes of that behavior, we may see that student behaviors are a result of discrimination or harassment they are experiencing.

How we use discipline with students is a space where it is so important to watch for different treatment on the basis of a protected class, and particularly race.

We may not even be conscious of discrepancies in how we handle subjective areas of behavior like “defiance” or “disruption.” For example, sending a Black student to the office for “disrespect” while a white peer who uses similar language is only warned.

Staying consistent in our responses and not treating kids in one protected class differently than kids in another protected class is an important part of this work to create safe and welcoming schools.

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Disability

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Unwelcome Conduct or Communication	Meet the Standard of Harm or Impact
A student with a mobility disorder is mocked by peers during PE class, and the teacher dismisses it as “just teasing.”	The student stops attending PE class and receives a failing grade on the required course.
After a student files a complaint about inaccessible classroom materials, a teacher retaliates by removing the student from a leadership role in group projects.	Student faces retaliation for objecting to barriers and suffers reputational harm and loss of opportunity.
Staff repeatedly ignore a student’s 504 Plan accommodations and write the student up for “defiance” when the student leaves the room to manage a panic attack.	The student is disciplined for following an accommodation in the Section 504 plan.

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Harassment versus Bullying

What’s the difference?

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Bullying

School bullying researchers typically define bullying by highlighting three components that differentiate it from other forms of aggression:

the behavior is unwanted,
repeated or likely to be repeated, and
marked by an observed or perceived imbalance of power

CHECK IT OUT!

CDE Bullying Prevention Model Policy:

https://www.cde.state.co.us/mtss/bullying

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“Bullying” defined in Colorado law

“Bullying” means any written or oral expression, or physical or electronic act or gesture, or a pattern thereof, that is intended to coerce, intimidate, or cause any physical, mental, or emotional harm to any student.

Bullying is prohibited against any student for any reason, including, but not limited to, any bullying behavior that is directed toward a student on the basis of the student's academic performance; any bullying behavior that is directed toward a student [based on their disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, national origin, religion, ancestry, or need for special education services]; or a pattern of bullying behavior that is directed toward a student on the basis of the student's weight, height, or body size.

C.R.S. 22-32-109.1(1)(b)

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Colorado law also has a definition of bullying.

Bullying means any written or oral expression, or physical or electronic act or gesture, or a pattern thereof, that is intended to coerce, intimidate, or cause any physical, mental, or emotional harm to any student.

Bullying is prohibited for any reason. I will say that again, it’s prohibited for any reason.

But the statute gives us some examples.

bullying behavior that is directed toward a student on the basis of the student's academic performance;

any bullying behavior that is directed toward a student [based on their disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, national origin, religion, ancestry, or need for special education services];

or a pattern of bullying behavior that is directed toward a student on the basis of the student's weight, height, or body size.

Do you recognize this list in red that starts with disability?

Yes, those are our protected classes!

That means bullying is prohibited for any reason, including bullying that is directed toward a student because they are a member of a particular class. Because they are female, because they are Black, because they have a disability.

And now you are thinking, wait, it could be both? Yes, let’s talk about this just a bit.

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GREEN HIGHLIGHTS: BULLYING

Bullying doesn’t implicate a student’s protected class.
Not harassment.
Follow your local policies to respond to bullying.

RED HIGHLIGHTS: POTENTIAL DISCRIMINATION OR HARASSMENT

Treatment of the student is connected to the student's protected class.
Could rise to the level of harassment.
Follow your local policies on responding to harassment.

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We had some text in green and some text in red on that last slide.

In green was:

bullying behavior that is directed toward a student on the basis of the student's academic performance;

a pattern of bullying behavior that is directed toward a student on the basis of the student's weight, height, or body size.

These are not protected classes under our discrimination and harassment laws and therefore can’t be harassment.

When you see these things happening, follow your local policies to respond to bullying.

There was also some red text on the slide. That included:

any bullying behavior that is directed toward a student [based on their protected class] and we had the list of protected classes.

This type of bullying COULD BE discrimination or harassment?

Why do I say “could be”?

Because we have to remember our third piece of the equation, does it rise to a particular level of harm or impact to the student such that it qualifies as discrimination or harassment.

At the end of the day, you don’t need to know exactly where this line is…

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It’s a lot, but don’t stress. The most important part is to spot the harm occurring and connect with your experts.

When you see that a student is experiencing a harm from other students or from the adults at school and it seems like they are being targeted or treated that way because of their identity, share that information with your designated school or district expert who is trained in the nuances.

Your local expert can bring into focus whether a protected class is implicated, what laws might apply, and the specific steps that need to occur to comply with those laws.

The most important thing you can do is spot the issue and elevate it. This seems like this might be discrimination or harassment based on a protected class!

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It’s a lot, but don’t stress. The most important part is to spot the harm occurring and connect with your experts.

When you see that a student is experiencing a harm from other students or from the adults at school and it seems like they are being targeted or treated that way because of their identity, share that information with your designated school or district expert who is trained in the nuances.

Your local expert can bring into focus whether a protected class is implicated, what laws might apply, and the specific steps that need to occur to comply with those laws.

I will say this again: The most important thing you can do is spot the issue and elevate it.

This seems like this might be discrimination or harassment based on a protected class! Let me talk to someone about this!

It is our hope that this presentation can create some common language and understanding around these issues so that everyone in the school building can support each other in this work.

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By identifying discrimination and harassment and elevating to your designated experts, you make a difference. Thank you.