GLAA: clarify Human Rights Act 12/03/01
Summersgill testifies on anti-bullying billsTestimony by Bob Summersgill on the
"Bullying Prevention Act of 2010" (B18-0770) and the
“Harassment and Intimidation Prevention Act of 2010” (B18-1057)
Before the Joint Committee of the Whole and
the Committee on Libraries, Parks, and Recreation
November 29, 2010
Chairmen Gray and Thomas:
Thank you, the other Councilmembers for introducing these bills. They represent the next steps in protecting students. I am ANC Commissioner-elect 3F07, in North Cleveland Park.
Bullying is particularly damaging to youth since they lack the emotional maturity, sophistication; and means to respond and mitigate harassment. Although D.C. has a strong Human Rights Act and very good harassment laws and school policies, there has been a general failure to implement the policies.
The current DCPS student disciplinary regulations were published in the March 26, 2009 D.C. Register.
Title: 5-B District of Columbia Public Schools, Student Discipline
2502.3 Tier III behaviors are those behaviors not specifically enumerated in any other tier in this chapter that cause significant disruption to the academic environment or cause harm to self or others. In addition to lesser consequences, Tier III behaviors may result in either on-site or off-site Suspension.
(a) The following behaviors shall be considered Tier III behaviors:
(12) Communicating slurs based on actual or perceived race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, or place of residence or business, including derogatory sexual language;
2502.4 Tier IV behaviors are those behaviors not specifically enumerated in any other tier in this chapter that cause disruption to the school operation, destroy school property, or cause significant harm to self or others. Tier IV behaviors result in off-site Suspension.
(a) The following behaviors shall be considered Tier IV behaviors:
(5) Persistent Harassment based on actual or perceived race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, or place of residence or business;
These regulations follow the DCPS regulations updated in 2002 in accordance with the addition of harassment as an explicit form illegal discrimination in the D.C. Human Rights Act in 2001; Superintendent Ackerman's anti-harassment directive on March 29, 2000; the passage of the Bias-Related Crime Act of 1989; The Human Rights Act of 1977, which was identical to Title 34 enacted on November 16, 1973 prior to Home Rule; and the May 1972 D.C. Board of Education rules prohibiting discrimination in the school system on the basis of sexual orientation.
The limitations in all of these laws and regulations are the implementation and enforcement. If a school fails to make clear that bullying will not be tolerated, or if a teacher or staff fails to intervene when bullying occurs, or if a teacher or staff makes a derogatory comment or through inaction shows their distaste for some group, then they are tacitly giving approval of bullying and harassment.
The Office of Human Rights (OHR) has the responsibility to implement and enforce the Human Rights Act. Unfortunately, OHR’s Director Gustavo F. Velasquez has shown distaste for transgender people, their rights, and the Human Rights Act’s protections of Gender Identity and Expression. Mr. Velasquez has failed to hire any transgender people, or anyone with any experience in transgender discrimination. Mr. Velasquez has supported discrimination against transgender people in our jails. Mr. Velasquez has supported rewriting the regulations to allow discrimination against transgender people in access to restrooms. Mr. Velasquez has failed to contact business owners about the changes in the law and regulations with the addition of gender identity and expression. He has failed to let business owners know that they need to update signs on their restrooms. Mr. Velasquez has failed to take seriously the discrimination filing against more than 50 establishments for violations of the restroom signage regulations.
Mr. Velasquez has made clear that his office will not do anything to implement or enforce the law where transgender people are concerned. This gives license to people to discriminate and license for D.C. government agencies to discrimination against transgender people. The Department of Corrections leads in violating the rights of transgender people, and has done so with full support of OHR. Only through the oversight of the D.C. Council has that situation improved. The D.C. Government employs fewer transgender people than have been victims of violence this year. And Mr. Velasquez’s failure to protect transgender people or enforce the law signals violent people that it is okay to attack transgender people.
Principals, teachers, and staff need to do better than Mr. Velasquez. The requirement to the Chancellor of the District of Columbia Public Schools to develop a model policy is a good first step in making clear to every principal that this is a serious law that must be implemented. Further, principals, teachers, and staff must know that they will be subjected to sanctions for failure to stop bullying, harassment, and intimidation. Likewise, rewards are needed for principals, teachers, and staff who report and intervene to stop bullying, as well as setting a tone that bullying is unacceptable and will not be tolerated. Without those sanctions and rewards, nothing in the schools or other institutions will change.
I am glad to see that higher education is also included in the legislation. I recently reached out to officials at the University of the District of Columbia (UDC) to point out that they were printing an incomplete non-discrimination policy on the Spring 2011 Course Guide. This is the sort of policy statement that is reprinted year after year without review. However in the past few years the Human Rights Act has been updated, and the UDC policy needs to reflect that. I also noted that the explicit reference to the Human Rights Act in the statement cited the wrong section of D.C. Code.
The Human Rights Act has an explicit requirement to post the policy in a conspicuous location. For UDC, that should—at a minimum—include the website:
§ 2-1402.51. Posting of notice.
Every person subject to this chapter shall post and keep posted in a conspicuous location where business or activity is customarily conducted or negotiated, a notice whose language and form has been prepared by the Office, setting forth excerpts from or summaries of, the pertinent provisions of this chapter and information pertinent to the filing of a complaint.
I was not able to find the non-discrimination policy on the UDC website easily. I did find it on page 19 of the Student Guide. It was also out-dated language. The UDC Human Resources Office does have an updated policy at http://www.udc.edu/hr/docs/1Volunteer%20EEO%20Disclosure_n.doc.
Failure to state the policy correctly and hiding it from casual view is precisely the sort of thing that these bills need to address. If you don’t tell people what the policy and the law is, you cannot expect it to be enforced. I contacted UDC on November 9, 2010. Craig Parker, UDC’s General Counsel wrote on November 10, 2010:
“Thanks for bringing this to our attention. I couldn’t agree more with your goal that, ‘…the policy should be easy to find, consistent with current District law, and uniform across the University as well as the Community College of the District of Columbia, and the Law School as they establish a separate campus.’ That is our aim as well.”
So far, there hasn’t been any change. Mr. Parker has suggested creating a process to create the policy, despite the fact that they do not have much leeway in what their non-discrimination policy is. Mr. Parker touted the policy model that he used at Catholic University . Unfortunately the policy at Catholic University is severely lacking. Numerous categories of the Human Rights Act are missing, including sexual orientation and gender identity and expression, despite explicitly mentioning the Human Rights Act. I responded to Mr. Parker that the Council has determined what the non-discrimination policy must include through the Human Rights Act.
The process at UDC should be started to implement an anti-bullying policy to get ahead of the requirements of these bills. I hope that Mr. Parker does act to implement the requirements of the Human Rights Act. If the General Counsel is unaware of the law and is slow to put it on the website, there is little chance that the rest of the staff and faculty, let alone the students will be aware of it. The requirements of these bills, if they are implemented and enforced, will ensure that everyone knows what the policy and the law are.
Not included in the bills is a requirement for agencies working with youth receiving D.C. Government contracts and grants also be subject to the law and be required to adopt and enforce an anti-bullying policy. It should be easy enough to adopt the model policy created by the Chancellor or by the Department of Parks and Recreation as appropriate. It would be very unfortunate to pay others who look after our children not to have anti-bullying policies in place and enforced. Failure to stop bullying should be grounds for terminating contracts and grants.
I understand that certain groups wish to exclude an enumerated list of categories by which a person may not be bullied, harassed or intimidated. Removing the list strips the law of any ability to be enforced. We have learned in other states that when hate crime and bullying laws do not explicitly cover any category, then they cover no one at all.
Neither of the current bills carries the language of the Human Rights Act. It is necessary to include all of the categories in these bills. The categories were not included randomly but devised with specific intention and expanded over the years. Each category is necessary. Specifically, the Human Rights Act in educational institutions is:
§ 2-1402.41. Prohibitions.
It is an unlawful discriminatory practice, subject to the exemptions in § 2- 1401.03(b), for an educational institution: (1) To deny, restrict, or to abridge or condition the use of, or access to, any of its facilities, services, programs, or benefits of any program or activity to any person otherwise qualified, wholly or partially, for a discriminatory reason, based upon the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, political affiliation, source of income, or disability of any individual;
Employment, public accommodations, housing, and District government agencies or offices each have slightly different lists as appropriate to each area. The lists are repeated throughout the Code so it would be very odd to exclude the list in these bills. One of the more glaring omissions from both bills is the category "Personal Appearance." This category was in the 1973 law and has been, until recently, the primary way that transgender people were protected. In a bullying situation it is likely to be one of the most important categories as bullying is often based on a person's appearance.
I appreciate you addressing the need to protect our youth from bullying, harassment, and intimidation. I hope that you will vigorously implement and provide oversight to ensure the on-going implementation of this law.
Much of the testimony on harassment and the efforts that led to the current laws and polices is online:
Schwartz Educates Becton on DC Human Rights Act, May 20, 1997
Summersgill urges school policy on student harassment, August 30, 1999
Graham joins GLAA in urging student anti-harassment policy, September 8, 1999
Schwartz endorses GLAA call for student anti-harassment policy, September 16, 1999
GLAA Testifies for School Policy on Student Harassment, November 16, 1999
Malek Calls for Action on Student Harassment Policy, February 9, 2000
GLAA testifies on proposed school harassment regulations, February 6, 2002
GLAA urges School Board to institute anti-harassment policy, March 10, 2000
Ackerman issues school anti-harassment directive in response to GLAA, March 29, 2000
GLAA urges full funding to implement school anti-harassment policy, April 7, 2000
Summersgill testifies at School Board on youth issues, July 16, 2001
GLAA alerts Cafritz to omission in Public Charter School policies, March 7, 2001
School Board responds to GLAA on public charter school policies, May 18, 2001
GLAA calls for clarification of Human Rights Act to include harassment, December 3, 2001
GLAA calls for School Board to learn DC Human Rights Act, December 17, 2001
DCPS adopts the correct language for student disciplinary regulations, March 26, 2009