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Student Harassment and How It's Different From Bullying

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Maine and Federal Laws

The Maine Human Rights Act protects students in public schools from discrimination because of:

  • gender
  • sexual orientiation
  • disability
  • national origin, or
  • race

There are federal laws too.

The Civil Rights Act of 1964 applies to students at public schools and protects them from discrimination.

  • Title VI (6) prohibits discrimination because of race, color or national origin.
  • Title IX (9) prohibits discrimination because of gender/sex.

Section 504 of the Rehabilitation Act and the Americans with Disabilities Act protect students with disabilities from being discriminated against in public schools.

Under these 4 laws, discrimination means being denied the right to:

  • get the benefits of school
  • be in academic programs
  • be in sports or other extracurricular activities
  • get financial assistance or
  • be admitted to a school or program

This means the school cannot keep your child from doing something because of race, national origin, gender, sexual orientation or disability.  For example, your daughter cannot be told that she cannot play a certain sport because she is a girl, or your child cannot be kept from going on a field trip because he has a disability.    

It also means that your child should not be harassed by staff or students because of your child's race, national origin, gender, sexual orientation or disability.  If the harassment makes it so that your child does not get the full benefits of school, it is discrimination. 

What does the full benefits of school mean? 

If your child is being harassed because of race, national origin, gender, sexual orientation or disability in a way that makes the school a "hostile environment," it is a violation of the Maine Human Rights Act.  Some examples of harassment causing a negative effect on your child's ability to get the full benefits of school are:

  • changing routines at school
  • poor grades
  • not doing extracurricular activities
  • skipping classes
  • avoiding lunch/unstructured times
  • not going to school
  • hurting him or herself
  • being hospitalized

A hostile environment can be created when your child is specifically targeted OR because of the culture at the school.  For example, if your child is a student of color and racial slurs are heard throughout the school, it is harassment based on race.  This is true even though the racial slurs were not directed at your child.

What does the school have to do?

First, the school must have actual knowledge of the harassing behaviors.  This means someone told a teacher or school administrator about the harassment, or the harassment happened in front of school staff or is well-known to students and staff at the school.   If your child tells you that he or she is being harassed because of race, national origin, gender, sexual orientation or disability, you should notify the school in writing.  Make sure you date it and send it to someone with authority at the school, like the superintendent or principal.  Keep a copy for youself.  If you call or ask for a meeting about the harassment, follow up with a letter.

The harassment must be severe, pervasive and offensive.

The school must not act with deliberate indifference.  This means the school did not act at all or did not make a real effort to stop the harassment.  The school should make a prompt investigation that is thorough and impartial.  If the school finds your child is being harassed, the school must take prompt effective steps that are reasonably calculated to end the harassment. 

Examples of steps the school could take are:

  • separate the harasser and your child
  • discipline the harasser
  • give a training for students
  • give a training for staff
  • give additional services to your child
  • create new policies, or
  • in extreme cases, transfer your child to another public school

Schools must eliminate the hostile environment that was created by the harassment.  Your child should not be the one who has to change his or her routines because of the harassment. 

Special Considerations With Discrimination Because of Gender/Sex

Under Maine and federal law, sexual harassment is considered sex discrimination.  Sexual harassment can include things like:

  •  sexual comments or jokes
  •  sexually graphic pictures/drawings/texts
  •  unwanted touching
  •  name calling
  •  spreading sexual rumors
  •  rating students sexually

It is also gender discrimination if your daughter is pregnant, and the school tells her she cannot be in a program or activity because she is pregant or because of conditions related to her pregnancy.

Special Considerations With Discrimination Because of Sexual Orientation

The Maine Human Rights Act specifically says a student cannot be discriminated against because of sexual orientation.  Title IX of the federal Civil Rights Act includes discrimination because of sexual orientation under gender-based harassment.  It does not matter if your child is gay or not.  If your child is perceived by others as gay, and is harassed because of it, it can be discrimination because of sexual orientation.  It also does not matter if the person who is harassing your child is male or female.  Examples of sexual orientation discrimination are:

  • name calling
  • homophobic behavior

Special Considerations With Discrimination Because of Disability

If your child has a physical or mental disability, he cannot be kept from any educational or extracurricular activity (including sports) solely because of his disability.  This section of the Maine Human Rights Act is not about getting special education services for your child.  Instead, it is about making sure that your child is given the same opportunities as students without disabilities. 

What is a disability?

  • a physical or mental impairment which interferes with a major life activity
  • a record or history of a physical or mental impairment, or
  • a perception that your child has a physical or mental impairment

Under Maine law, if your child has a mental health diagnosis, or gets special education, vocational rehabilitation or related services, your child has a disability.  There is no hard and fast rule about how long a disability must last. Maine law protects people with temporary impairments.

What does the school have to do?

The school will need to make reasonable accommodations for your child.  "Reasonable accomodations" can be:

  • physical modifications to the school that are necessary for your child to enjoy full use of the school building
    • Example: an elevator, a wheelchair ramp, handrails, motorized doors
  • a change in rules, policies, procedures, etc. when needed to allow your child to use or enjoy school, including extracurricular activities, to the same extent as students who do not have disabilities
    • Example: allowing your child with diabetes to have a snack in the classroom, allowing your child with ADHD to stand up when needed during class

It is best to make a specific request for a reasonable accommodation in writing, and  have a doctor's note that says your child has a disability and needs the requested accommodation because of the disability. The request does not have to give your child's diagnosis.  Besides the Maine Human Rights Act, there are two federal laws that public schools must follow when working with children with disabilities and their need for reasonable accommodations:

  • Section 504 of the Rehabilitation Act, and
  • Title II (2) of the American with Disabilities Act

The modification can be denied if it poses an undue financial burden on the school district or if it changes the fundamental nature of the program.  These are really specific factors to be considered in figuring if a modification is reasonable.

  • Under state and federal law, it is illegal to treat people with disabilities differently from people without disabilities. This includes requiring that your child be medicated.

What if I know I need some modification or accommodation, but I don't know what I need?

In this case, make a request in writing that says your child has a disability which is creating a special need and you want to discuss a reasonable modification or accommodation with the school.  You can make a referral under Section 504. If you think your child needs special education services, then you should make a referral in writing under the Individuals with Disabilities in Education Act (IDEA).  Remember, the Maine Human Rights Act does not address special education services.

What Happens if the School Does Not Follow the Laws

If you think your child has been discriminated against because gender, sexual orientation, race, national origin or disability, you can first review the school district's policy.  You can make a complaint to the school administration or school board.  The policy should say what the complaint process is for your child's school district.

Because of these laws, your school may have a student Civil Rights Team.  The Maine Attorney General's office explains Civil Rights Teams.  Civil Rights Teams try to prevent or stop harassment because of someone's:

  • Race and color
  • National origin and ancestry
  • Religion
  • Physical and mental disabilities
  • Gender
  • Sexual orientation

If you think the Maine Human Rights Act has been violated, you can make a complaint to: 

The Maine Human Rights Commission
51 State House Station
Augusta, Maine 04333-0051
Phone: 207-624-6290
TTY/TTD: 1-888-577-6690

There is a time limit.  You must file a complaint with the Maine Human Rights Commission within 300 days after the alleged act of unlawful discrimination.

If you think the Civil Rights Act or Section 504 of the Rehabilitaton Act has been violated, you can make a complaint to:

United States Department of Education
Office for Civil Rights
8th Floor; 5 Post Office Square
Boston, MA 02109-3921

Telephone: (617) 289-0111
Fax: (617) 289-0150
TTY/TDD: 877-521-2172

Email: OCR.Boston@ed.gov

The time limit to file a complaint with OCR is 180 days from when the alleged act of discrimination happened.

Updated May 2013
PTLA #192

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