The Wisconsin Department of Public Instruction (DPI) recently issued several decisions in which it addressed the legal standards that apply to pupil discrimination complaints under Wis. Stat. § 118.13. These decisions not only serve as a general reminder regarding the duty on the part of a school district to provide a nondiscriminatory educational environment, but also serve as a guidepost for school districts when investigating complaints of discrimination.
Applicable Statute
Under Wis. Stat. § 118.13:
no person may be denied admission to any public school or be denied participation in, be denied the benefits of or be discriminated against in any curricular, extracurricular, pupil services, recreational or other program or activity because of the person’s sex, race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation or physical, mental, emotional or learning disability.
The term “discrimination” is defined broadly as:
any action, policy or practice, including bias, stereotyping and pupil harassment, which is detrimental to a person or group of persons and differentiates or distinguishes among persons, or which limits or denies a person or group of persons opportunities, privileges, roles or rewards based, in whole or in part, on sex, race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation or physical, mental, emotional or learning disability, or which perpetuates the effects of past discrimination.
Wis. Admin. Code PI § 9.02(5).
Written Policies and Procedures
School districts must adopt written policies and procedures prohibiting discrimination against pupils. In addition, school districts must have policies and procedures in place to address pupil discrimination complaints, including a procedure for investigating complaints, determining whether a violation occurred, and ensuring compliance with the statute and regulations. With regard to complaint procedures, school districts must designate an employee to receive discrimination complaints. School districts must also include a provision regarding acknowledging receipt of discrimination complaints in writing within 45 days and issuing determinations of complaints within 90 days. The complaint procedure should also include a provision regarding notification to the complainant of his or her right to appeal an adverse decision of the school board to the state superintendent of public instruction.
Legal Standards
The DPI has applied the standards found in guidance published by the United States Department of Education Office for Civil Rights (OCR), as it relates to analogous federal law. For instance, relying on OCR’s guidance in Racial Incidents and Harassment Against Students at Educational Institutions; Investigative Guidance, 59 Fed. Reg. 11448-54 (Mar. 10, 1994), the DPI explained that a school district engages in racial discrimination when it:
has created or is responsible for a racially hostile environment – i.e., harassing conduct (e.g., physical, verbal, graphic, or written) that is sufficiently severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities or privileges provided by a [school district]. A [school district] has subjected an individual to different treatment on the basis of race if it has effectively caused, encouraged[,] accepted, tolerated or failed to correct a racially hostile environment of which it has actual or constructive notice.
The DPI further explained that a school district must take reasonable steps to eliminate a hostile environment of which it has notice. In this regard, a school district’s response must be “tailored to redress fully the specific problems experienced at the institution as a result of the harassment” and “reasonably calculated to prevent recurrence and ensure that participants are not restricted in their participation or benefits as a result of a racially hostile environment.” An appropriate response may include “disciplinary measures, development and dissemination of a policy prohibiting racial harassment, provision of grievance or complaint procedures, implementation of racial awareness training, and provision of counseling for the victims of racial harassment.”
The DPI has also clarified the parameters of a reasonable investigation. For instance, the DPI stated that “[a]n investigation into a complaint of a hostile environment necessarily must begin with establishing facts to determine whether such an environment does or does not exist. However, Wis. Stat. § 118.13 and Wis. Admin. Code ch. PI 9 do not require an exhaustive investigation and do not require a school district to perform the same level of investigation that the OCR might perform.” Accordingly, a school district meets its obligation under state law to investigate a discrimination complaint “when it performs an investigation that is reasonably calculated to determine whether the allegations of discrimination in a complaint are true.” This includes making (and documenting) an initial factual finding as to whether a hostile environment exists. If a school district finds that a hostile environment does exist, the school district would then determine whether it created or is responsible for that environment.
Differential Treatment Allegations
Moreover, the DPI has described the standards that apply to allegations of differential treatment, such as an allegation that a school district has disciplined a pupil more harshly based upon a protected category. With regard to allegations of differential treatment, the DPI applies the same multi-part test as the OCR. More specifically, in order for a complainant to satisfy the first step, there must be evidence in the record to show that the school district treated a student differently than a similarly situated student who is not in the student’s protected class. If such evidence exists, then the DPI considers whether the school district had a legitimate, non-discriminatory, reason for its action(s). If the school district proffers a legitimate, non-discriminatory, reason for its action(s), then the DPI considers whether the reason is a pretext for discrimination.
Importantly, the DPI recently clarified that a bare allegation of differential treatment of a pupil is not sufficient to shift the burden to the school district to proffer a legitimate, non-discriminatory, reason. Relatedly, the DPI explained that “[a] district is not required to consider the specifics of every incident of discipline imposed on any student when a complainant fails to point to any specific instance when a student of a different [protected category] was similarly situated yet disciplined differently for similar conduct.” However, if a complainant points to a specific incident or incidents, it is advisable for a school district to investigate the incidents to determine whether the pupils were similarly situated and, if so, whether they received similar discipline.
Allegations by Former Students
As part of its recent decisions, the DPI also considered the potential relevance of allegations made by former students. The DPI stated that “[a]lthough allegations of discrimination suffered by former students may be relevant to a district’s knowledge of a hostile environment or to the pervasiveness of the discriminatory harassment, they do not support issuance of an order to comply without evidence that the hostile environment continued to exist at the time the complaint was filed.” Therefore, if a school district receives information as part of a discrimination complaint regarding former students, it is advisable to investigate the allegations to determine whether the allegations are true and, if so, whether a hostile environment continues to exist. However, if there is no evidence of a continuing hostile environment and the former student(s) are no longer “legally entitled to participate” in school district programs or activities, the DPI does not have authority under state law to order a remedy.
Conclusion
Once a school district has notice of a hostile environment based upon a pupil’s protected category, the school district must take reasonable steps to stop the harassment and prevent it from recurring. School districts should consult with legal counsel to develop an investigation plan that complies with existing policies and procedures, as well as applicable law. The DPI’s decisions demonstrate the importance of conducting thorough complaint investigations, including consideration of whether a broader hostile environment exists within the school district.