Presented By: Geoffrey M. Hicks, Ed.D. Clarence Central School District Marnie E. Smith, Esq., Harris Beach PLLC Western New York Education Law Conference ________________ Protecting Your Students: An Update on Bullying & Transgender Issues

Dignity for All Students Act (“DASA”)

DASA – Where We Were  Signed into law by Governor Paterson in September 2010, effective July 1,  Governor Cuomo’s Program Bill #43 proposed amendments, which were passed on June 18, 2012, effective July 1,

DASA – Where We Are (4 years later)  General Overview Regarding DASA  How has DASA changed our schools?  DASA Frequently Asked Questions 4

DASA Prohibitions Generally  No student shall be subjected to harassment or bullying by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function.  Keep in mind - Additional laws, such as Title IX may also afford students protection. 5

Important Definitions Key terms are defined broadly under DASA.  “School property” - in or within any building, structure, athletic playing field, playground, parking lot, or land contained within the real property boundary line of a public elementary or secondary school; or in or on a school bus  “School function” - school-sponsored extra-curricular event or activity  “Gender” - actual or perceived sex and shall include a person’s gender identity or expression.  “Sexual Orientation” - actual or perceived heterosexuality, homosexuality or bisexuality. 6

Important Definitions (continued)  “Harassment” and “bullying” – creation of a hostile environment by conduct or by threats, intimidation or abuse (verbal or nonverbal), including cyberbullying, that: a.Has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or b.Reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or c.Reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student; or d.Occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.  Acts of harassment/bullying include, but are not limited to, those acts based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. 7

 “Cyberbullying” means “[h]arassment or bullying … including paragraphs (a), (b), (c) and (d), where such harassment or bullying occurs through any form of electronic communication.”  Scary Statistic: US High School Students % (15,448 ) reported being bullied in the 12 months prior to the survey and 15.5% (15,465) reported being electronically bullied ( , chat rooms, instant messaging, websites or texting during 12 months before the survey. (Information courtesy of Center for Disease Control and Prevention, 2015). 8 What is Cyberbullying?

DASA Reporting Requirements  Oral or written reports may be made to the Building Principal, Superintendent, DASA Coordinator, and/or other school personnel.  DASA Reporting Forms  School personnel who witness or receive a report of harassment, bullying or discrimination must promptly orally notify the Principal, Superintendent or designee within one school day, and must file a written report within two school days.  Principals must report data trends to the Superintendent.  The Superintendent, Principal or designee must promptly notify law enforcement if they believe that any harassment, bullying or discrimination constitutes criminal conduct.  Material incidents of harassment, bullying and discrimination on school grounds or at school functions must be reported to SED at least on an annual basis. 9

 “Instruction in grades kindergarten through twelve shall include a component on civility, citizenship and character education. Such component shall instruct students on the principles of honesty, tolerance, personal responsibility, respect for others, with an emphasis on discouraging acts of harassment, bullying, discrimination, observance of laws and rules, courtesy, dignity and other traits which will enhance the quality of their experiences in, and contributions to, the community. Such component shall include instruction of safe, responsible use of the internet and electronic communications…” 10 Instruction in Civility, Citizenship and Character Education

Has the implementation of DASA changed our schools over the past 4 years?  The Superintendent’s Perspective  The School Attorney’s Perspective 11

DASA FAQ’s  Does my District have to appoint a Dignity Act Coordinator?  Does my District have to tell people who the Dignity Act Coordinator is?  Does *THIS* trigger DASA?  A teacher filed a complaint alleging that their DASA rights were violated, do we need to investigate? 12

DASA FAQ’s (continued)  Does my District have to create a DASA Report Form?  I received an complaining about bullying, but it was not on our Board-approved DASA Form, so I can just ignore the complaint, right?  I know *THIS* won’t violate the Policy, do we still need to do an investigation?  What must a DASA investigation include? 13

DASA FAQ’s (continued)  What are the potential consequences of violating DASA?  Have any school districts lost Commissioner’s appeals regarding DASA?  Have any school districts lost Court cases involving DASA? 14

DASA – Where Are We Going?  The Superintendent’s Perspective  The School Attorney’s Perspective 15

Transgender Students

A Few Terms to Understand  LGBTQ: Lesbian, Gay, Bisexual, Transgender, Queer  Gender Identity: The part of a person’s identity that is about his/her sense of self as male or female, neither or both.  Gender Expression: The part of a person's identity that is about expressing masculinity or femininity as influenced by society, culture, and individual expectations.  Transgender: A person whose gender identity is not congruent with his/her biological sex. In its broadest meaning, this umbrella term encompasses anyone whose self-identity, behavior, or anatomy falls outside of societal gender norms and expectations. 17

A Few Terms to Understand (continued)  Gender Non-Conforming – Gender non-conforming people have, or are perceived to have, gender characteristics and/or behaviors that do not conform to traditional or societal expectations.  Cisgender: Someone who is comfortable with the gender they were assigned at birth. The state of not being transgender.  Queer: A simple label to explain orientations, gender identities and/or gender expressions that do not conform to societal expectations. Some people view this as a term of empowerment and others strongly dislike this term. 18

Why Understanding is Imperative  According to the Gay, Lesbian & Straight Education Network School Climate Survey/National Center for Transgender Equality National Transgender Discrimination Survey:  75% of transgender youth feel unsafe at school.  Nearly half of young transgender people have seriously thought about taking their lives, and more than one quarter report having made a suicide attempt.  Transgender students disproportionately avoid school functions and extracurricular activities.  Many students struggle for the ability to come to school and be themselves – rather than focusing on their education. 19

Legal Guidance  Federal laws require that we safeguard the rights of students (e.g. Title IX).  The Department of Education Office of Civil Rights (OCR) has taken an active role in investigating alleged violations of Title IX in public schools. OCR has issued findings and has entered into resolution agreements.  NYSED: Guidance to School Districts for creating a Safe and Supportive School Environment For Transgender and Gender Nonconforming Students (July 2015)  US DOE and US DOJ: Dear Colleague Letter (May 2016)  Several cases have now made their way to federal court. 20

Legal Guidance (continued)  Statutes v. Guidance v. Case Law  Even though the NYSED Guidance and the DOE/DOJ Dear Colleague Letter may not have the force of “law”, they are a strong indication of where law/cases will go.  Will your District be the test case?  Potential negative perception  Limited time and resources 21

Topics Addressed in Guidance NYSED Guidance  Names and Pronouns  Privacy, Confidentiality and Student Records  Gender-Based Activities, Rules, Policies and Practices 22 DOE/DOJ Letter  Safe and Nondiscriminatory Environment  Identification Documents, Names, and Pronouns  Sex-Segregated Activities and Facilities  Privacy and Education Records

Should my District adopt a policy?  Superintendent’s Perspective  School Attorney Perspective 23

Should my District adopt a policy? (continued)  Considerations  Timing – proactive or reactive?  Is there a consensus among Board members and the Superintendent?  Know your community  Ask for feedback from your community and students  Patience in developing/revising policy 24

Restrooms and Changing Rooms  Must school districts grant every student request to use the restroom or locker room consistent with their gender identity?  NYSED Guidance and DOE/DOJ Dear Colleague Letter 25

Restrooms and Changing Rooms (continued)  Why the focus on restrooms/locker rooms?  Who is really concerned?  Students much more tolerant/accepting than parents  Privacy to all  Current Facilities - Repairs needed? Capital Project?  Changing Stations/Curtains  Number of students in locker rooms  Supervision/Scheduling  COMMUNICATION IS KEY 26

Overnight Field Trips  Transgender student’s preference  Consider all options  Communication with student’s parents  Communication with other students sharing the room and parents of those students 27

What NOT to do…  Wristbands in Wisconsin  Cross-Campus Restroom in California 28

The Bottom Line  School Districts must work closely with each student, and, as appropriate, the student’s parents/guardians, to plan any steps necessary to foster a safe and secure environment for that particular student.  This must be handled on a case-by-case basis, as the needs of each student and school community will vary.  When harassment and/or bullying of transgender and/or gender non-conforming students is suspected or reported, it must be addressed in accordance with DASA and Title IX. 29