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Padlet Slide #1 My Professional Perspective/Audience/Topic

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Padlet Slide #1 My Professional Perspective/Audience/Topic

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My professional perspective involves working as a guidance counselor at the middle school level. After finishing my master’s degree at Angelo State University, I would prefer to start my career as a guidance counselor at the middle school level since I teach middle school currently. Upon gaining the appropriate experience and learning general counseling duties, I plan to become a high school counselor. The audience for this presentation is geared toward first year teachers who have just been hired by our school’s principal.

The topic for my Legal Guide Padlet will be on cyberbullying. I will be presenting a professional development seminar on student issues related to cyberbullying. Cyberbullying is defined as, “"the intentional infliction of harm by the use of one or more media of electronic technologies” (Lane, 2011, p. 1795). Many first-year teachers are not adept with handling bullying, especially in an online format. This session will provide them with a basic understanding of the current issue, as well as how to handle common problems that may arise. I chose this topic because it has been a rising complaint among the counselors at my school. Both counselors are seeing a rapid increase in bullying on social media. This increase has infected the school and unfortunately, negatively influenced the school culture. A current event is attached below of a fight that rapidly circulated on social media and made the victim become depressed (Caprariello, 2020).

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LEANDER, Texas (KXAN) - A video of an on-campus fight is rapidly circulating on social media among students in Leander.

It depicts an eighth grader at Running Brushy Middle School being dragged to the ground by her hair before taking a flurry of punches and kicks to the body and face.

The Leander Independent School District said they are investigating the incident and warning students about the harm they can cause on social media.

"All of a sudden I feel my hair get pulled," said Alexis Luna, the victim of the attack in the video. "It just happened all of a sudden."

Luna admitted that she had told her friends that she wanted to fight her assailant off-campus. When the fellow student confronted her, Luna refused to engage. She told KXAN she didn't want to get in trouble at school.

In the video, you can see her walking away, arm-in-arm with a friend. That's when her assailant chases her down, grabs her ponytail and begins beating her.

"Alexis was walking away. She even said that, 'I'm not going to get in trouble at school.' And for that girl to come behind her and pull her hair all the way to the floor and drag her down like a rag-doll, it didn't need to happen that way. If Alexis didn't want to fight, [the attacker] should have just walked away," said Deann Flores, Luna's mother.

"Violence of any kind has no place on or off our campuses, and it is concerning and upsetting any time an incident like this occurs. Because we must respect the privacy of students shown in the video, we cannot comment on the specifics of the situation and its aftermath. We will continue working with the families involved and the larger school community to educate and emphasize the importance of meaningful conflict resolution and the responsible use of social media." Leander Independent School District

Luna said students fight each other all the time, mostly off campus. The school district said it hasn't seen an uptick in fights, but are constantly mentoring students on being kind and respectful, especially in the digital world.

"We do talk to students over the course of the curriculum, specifically in secondary schools, to be good digital citizens and responsible on social media," said Matt Mitchell, communications coordinator with Leander ISD. "[Teachers] talk to them about it. They say this is harmful, destructive and it's not what we do."

Flores believes have a school resource officer on campus could have stopped this fight from escalating.

"We never had this problem when I was in school, but nowadays, it seems like a big thing," Flores said. "If there is so much fighting going on at that school, I think there does need to be an officer on premises."

Leander ISD doesn't station officers at middle schools full-time, only high schools. But Mitchell said they are always on-call.

The district said it will continue having conversations with the community to see if changes are necessary.

Anonymous Reporting

Leander ISD students and parents can report safety issues through Anonymous Alerts. It's a way to notify school leaders about sensitive or urgent problems.

You can report bullying, harassment, depression, threats against the school or weapons on campus.

Submissions can be made through a smartphone or online. You'll be asked if you're a student, parent or staff member.

You don't have to give your name. Select the type of school where the incident happened and the location - like a bus stop, school sponsored event or at school. You can even add screenshots with your submission.

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Video of violent attack at a Leander middle school rapidly spreads on social media

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LEANDER, Texas (KXAN) - A video of an on-campus fight is rapidly circulating on social media among students in Leander. It depicts an eighth grader at Running Brushy Middle School being dragged to the ground by her hair before taking a flurry of punches and kicks to the body and face.

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I interviewed Veronica Perez, middle school guidance counselor at the Krueger Middle School. Ms. Perez had a wealth of information regarding following bullying laws and implementing appropriate counseling standards to avoid a potential crisis.

https://www.neisd.net/domain/1019

Cyberbullying is an important topic for counselors to understand since we live in an age of technology. Technology has begun to influence how students communicate, and in turn, has changed the landscape for handling internal and external conflicts. Counselors are at the forefront of this issue and are tasked with meeting the needs of students and their families. Unfortunately, providing guidance to students has now become even more challenging with the increased use of social media platforms. Counselors are not able to monitor and assess the school culture because they do not have access to what students are sharing, saying, and posting online. Without this knowledge, many underlying issues can go unnoticed and quickly begin to transform into larger problems when students arrive on campus.

·       Based on the law, all cyberbullying cases and concerns should be redirected to an administrator. If a teacher approaches a counselor with a bullying issue or student complaint, the counselor should instruct the teacher to allow the student to write a statement (V. Perez, personal communication, February 25, 2020).

·       A counselor’s sole priority during a suspected cyberbullying situation is provide mental or emotional support. This support includes talking about what bullying is, common feelings associated with being bullied, and allowing the student to explain how the situation has impacted them personally (V. Perez, personal communication, February 25, 2020).

·       The last best practice that I learned through my interview is to never change the victim’s schedule unless it is requested. This puts a hardship on the victim and makes them feel as though they were blamed for disclosing the alleged act. The bully will be moved to another class or into a different learning setting (V. Perez, personal communication, February 25, 2020).

An emerging issue related to cyberbullying is the fact that it has gone down after the principal banned phones during school hours (V. Perez, personal communication, February 25, 2020). This is because students usually forget about conflicts by the time, they get home. Before this rule, cyberbullying cases were occurring consistently because students had access to their phones and could quickly post something harmful as a result of a personal situation or conflict. One significant event that has resulted instead, is the imbalance of power over multiple events that occur (V. Perez, personal communication, February 25, 2020). There are some students who are not adept with technology or current social media trends, or who do not have a phone at all. They may be unaware of what is being said about them online, creating an imbalance of power (V. Perez, personal communication, February 25, 2020).

I asked Ms. Perez these two questions:

Can you share a situation related to this issue and how you resolved it?

Have you attended or provided any trainings recently on this topic, what? How do you stay current on this topic?

For a bullying or cyberbullying case to require an investigation by administration, it needs to be “consistent and significant” (V. Perez, personal communication, February 25, 2020). There was one example of a situation that was not consistent and significant that I hope you all understand, in order to realize the difference between the two. A student comes into the counseling department and states he was bullied for not having a phone (V. Perez, personal communication, February 25, 2020). It is a counselor’s job to briefly investigate the concern and see if there is a pattern (V. Perez, personal communication, February 25, 2020). Counselors do not need to find out specific information about the situation because that is an administrator’s job (V. Perez, personal communication, February 25, 2020). If there is a consistent pattern of bullying, the counselor should refer the student to the assistant principal or principal’s office depending on the severity. The counselor will follow-up with the administrator tasked with the investigation and provide what he or she already learned.

You all may be wondering what type of training is available for handling bullying as a counselor. Most of the training occurs at the beginning of the school year during a leadership conference (V. Perez, personal communication, February 25, 2020). There are breakout sessions about counseling that you all can choose from and attend. Our district has made it clear that counselors should not handle bullying issues (V. Perez, personal communication, February 25, 2020). If there is any type of general information or laws that we need to know, it will come from administrators (V. Perez, personal communication, February 25, 2020).

I thought they she gave interesting responses and I learned a great deal from our interview.

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The counseling department at Krueger Middle School is available to assist students and families with academic and personal issues. The counselors strive to create an environment that is safe and trusting in order to foster the growth and development of our students.

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The counseling department at Krueger Middle School is available to assist students and families with academic and personal issues. The counselors strive to create an environment that is safe and trusting in order to foster the growth and development of our students.

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Link: https://www.schoolcounselor.org/school-counselors-members/legal-ethical/legal-ethical-faq

This resource is informative to the topic of cyberbullying as it details possible legal, confidential, and ethical concerns for school counselors. This resource outlined previous causes when a student threatens to self-harm or is thinking about suicide because of being bullied. The blog also describes school counselor responsibilities and defines the duties that should not be delegated to them. For instance, any sort of abuse disclosed by a student should not be addressed by the counselor, but instead, referred to administration (American School Counselor Association [ASCA], 2020).

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Legal and Ethical FAQs

From student safety and confidentiality to interactions with parents/guardians and administrators, school counselors encounter a range of legal and ethical issues every day. Here we've gathered some frequently asked legal and ethical questions to help guide you in your daily work.

Subpoenas/Case Notes

What do I do if I receive a subpoena for my testimony or case notes?
This is a common part of being a school counselor. Remember, most courts are not looking to attack educators and operate under the general thought that you are attempting to do what is best for students and families. Let your principal know, and ask for assistance to contact your district legal team to get advice on how to proceed. If possible, work with the district legal team to get the subpoena quashed. If you are not able to do this, then you are compelled to testify. When giving a testimony, provide only facts and omit any subjective information that may make room for doubt. A few states give students privileged communication, which means they can render the school counselor incapable of testifying about their communications. Check your state statutes. In most of cases, the courts are entitled to your testimony, and even in the states awarding privilege communication to minors, judges can often exercise discretion if they need the information for the safety and health of the minor.

What is best practice regarding case notes? How do I know if my personal notes meet the criteria for case notes?
Parents/guardians have a federal right to see anything you write down or record that refers to their child so, as a general rule of thumb, keep your notes in a way you would be comfortable with a parent reading. Personal notes should really be more like memory-joggers for you professionally. Anything that refers to a student, even using initials, ID numbers or personal descriptors, if specific enough, is an educational record that belongs primarily to the parent/guardian. Other student names can be omitted, but the parents/guardians have a right to see the rest. You can keep personal notes if you feel the need to be more specific, but the law has been clear that if anyone knows the notes exist they are then covered under the Family Education and Privacy Act (FERPA). According to FERPA, case notes are "sole-possession records" and not educational records if they meet specific criteria. They must: serve as a memory aid, not be accessible or shared in verbal or written form, be a private note created solely by the individual possessing it and include only observations and professional opinions.

I have taken a job in another district. What do I do with my personal case notes? What notes should I keep?
Personal notes, as in those notes only you are aware of, are kept for the purpose of supporting the student through long-term knowledge of a student's experience. If you are comfortable with your school counseling replacement, you may choose to leave the notes with the new school counselor. Case notes can always be purged except when there is knowledge that a subpoena is likely or the notes may be needed to help the courts convict a perpetrator such as in the case of child sexual abuse. Exercise judgment as to when notes need to remain and when they can be purged. If in doubt, consult.

Confidentiality

When do I share information about students with parents or families and with administrators or other school staff?
Sharing information with parents/guardians is important when a student's safety is in question. This may be sexual behaviors, self-harm, drug use or threats to self or others. Ultimately, open communication with parents/guardians is important and will help with overall programming in the school.

Notify administrators of any threats to self or others and when a human services report has been made or the police have been called. If you do not already have a protocol in place for this situation, check with a few neighboring districts for their protocols and bring them to administration for approval. Sharing information with the remainder of your team, such other school counselors, psychologists or social workers, is helpful for consultation but also provides additional eyes on students in case you are out of the building when a student needs assistance. This is particularly important regarding social/emotional interventions. Otherwise, a sharing of general information when you are concerned about a student - such as a student who has been struggling with a loss or depression -- can be helpful so teachers can notify you of changing behavior in class or with peers. Typically, just asking teachers to notify you if they see any behaviors from the student that are different from the student's normal behavior is enough.

What do I do if my administrator asks for the names of the students I see and the reasons I'm working with them?
Your administrator may be curious about who is seeing you and for what reasons. Prepare that information in a general way, using descriptors such as "academic," "career" or "social/emotional" or in another way where personal information is de-identified. If the administrator wants to know more specifics, this is a good time to process your legal and ethical pull between FERPA's "legitimate educational interest" and your ethical obligation to protect the information. If the information is relevant to building safety or school programming, it is important to share that with administration. However, remind administration the information is sensitive and that it must be kept confidential to preserve the student's dignity and rights, as well as your relationship with the students.

My central office supervisor wants me to provide copies of the action plans we create for students who express suicidal ideation. Is that breaking confidentiality?
Because of the health and safety concerns, districts have the right to require school counselors to follow policy regarding providing copies of action plans for suicidal students. The confidentiality breach comes when these plans are indiscriminately kept without regard to when they should be purged, where they should be kept and if they are necessary beyond just the district's need to ward off liability. The action plan is an educational record, but the plan should be kept outside the actual folder for certain eyes only and purged at the appropriate time.

What do I do if a student tells me she thinks she is pregnant?
It is important to know your state laws around this topic (i.e., what is the age of consent, issues around pregnancy decision-making, etc.) as well as your school board policies regarding the issue and community norms. Find out how or if the student has confirmed her pregnancy. Other issues to consider include whether the sex was consensual and the age difference of both parties. Understanding the student's relationship with her parents/guardians will provide insights for how you might advise the student to tell her parents/guardians.

What do I do if a student tells me he was inappropriately touched by an adult several years earlier or by another student more recently?
If the student tells you he was inappropriately touched, follow your school district's protocol regardless of the amount of time that has passed. You still have a duty to report. Remember that child offenders often offend many times before they are actually caught. You may be preventing future offenses. Also, remember that if the adult is anyone but a family member living in the home, you should call the police department. If the student was touched by another student, you will go through a Title IX protocol. Contact your administration and local police department to investigate; your district may have an identified Title IX officer at the district level who can assist. In the case of young children, you may need to call child protective services. A principal recently lost her job when three 5 year olds were caught simulating sex acts on each other, and the principal called the parents and not child protective services. Do not ever question if the student is being honest. It isn't a school counselor's job to investigate, only to report and support the student.

My principal and central office supervisor want to know the names of all the students I report to child protective services for possible abuse or neglect. Am I required to tell them?
School counselors are mandated reporters, and good-faith reporting is assumed when a professional reports child abuse. The term good-faith reporting refers to the assumption that the reporter, to the best of his or her knowledge, had reason to believe the child in question was being subjected to abuse or neglect. A mere suspicion of abuse is all that is necessary when reporting child abuse. The school counselor is acting legally and ethically when reporting and does not require anyone's permission to report child abuse. Following district or administration policy regarding notifying after the fact the students for whom you called in child abuse is legal and ethical.

Due to COVID concerns, students aren't allowed to come to my office for any reason. I'm only allowed to speak with students in the hallway directly outside their classroom. What do I do?
According to the ASCA Ethical Standards for School Counselors schools present competing interests, including the safety of students, parental rights and the best interest of students, but it is critical to respect students' privacy to the greatest extent possible and to adhere to laws, policies and ethical standards around confidentiality and disclosure in the school setting. Students need a safe, private space to talk, and the school must consider what the plan will be in case of a crisis, if abuse is suspected or if the student is considering harm to self or others. A student in crisis may not feel comfortable opening up when peers are nearby. If students can move around the building to see other school staff, they should be able to see the school counselor. In the past six months, many students have experienced trauma and stress related to the pandemic and racialized trauma following the death of George Floyd and the related protests. A safe, supportive and equitable learning environment requires us to provide structures for physical and emotional safety. Providing student physical and psychological safety includes ensuring specialized support personnel, including school counselors, school psychologists and school social workers, have an adequate space to meet with students confidentially while being able to be physically distant. When schools and school districts do not plan for these safety concerns, the school counselor should advocate for change. Ethical standard A.2.m states school counselors advocate for safeguards and protocols to protect student confidentiality, and A.10.b states school counselors advocate for student safety at school. School counselors can use the above points and the ASCA Ethical Standards in their advocacy efforts. The ASCA position statements The School Counselor and Confidentiality, The School Counselor and Safe Schools and Crisis Response and The School Counselor Student Mental Health may provide additional advocacy support. As a school counselor, you need to understand how to negotiate your school's political landscape. Advocacy efforts that come across as adversarial may do more harm than good. Diplomacy is an important skill to employ when advocating.

VIRTUAL: What confidentiality considerations should I keep in mind during virtual individual and group counseling?
The same limits of confidentiality apply (serious and foreseeable harm) virtually as well as in-person, and you should discuss them with students before counseling begins. To limit others overhearing you and your students, you should be in a private space and use a headset if possible. Also be sure to use a district-approved, secure platform. Be aware that you don't know who else is on the other side of the computer screen, and make sure the student understands you can only control confidentiality on your end. If a parent, sibling, family member, friend, repairman or anyone else is on their end, that person potentially can hear what the student is saying. The same goes for a group setting. You don't know who else may be in the room with other members, so encourage students to wear headphones for some privacy.

Do I need to provide notification to parents and families when a student is involved in a small group I lead?
School counselors want to build, not erode, credibility and maintain a strong working relationship with parents/guardians. This mission is forwarded when school counselors inform parents their child is to be a group member, as some parents/guardians may view small-group counseling as moving away from classroom instruction to a social/emotional focus; therefore, you should inform parents/guardians. This notification gives you a chance to explain the connection small groups have to academic success, and it gives parents/guardians a chance to opt out.

VIRTUAL: Can school counselors conduct group counseling in a virtual setting? Am I still required to get parent/guardian consent?
Under the best circumstances, legal and ethical complications are acutely present in small-group delivery. This is especially problematic in the virtual world. Confidentiality for groups in a brick-and-mortar situation is fragile because the school counselor can never feel secure that students will abide by it or understand all the nuances. Remember, anything said in the group can be tweeted, posted on social media or discussed in the hallway within seconds or minutes. School counselors must be vigilant in what they allow one student to talk about in front of their classmates. Ensuring confidentiality in a virtual world is even more difficult. You can't know who is listening in each student's household. It might be impossible for a student to seek a private place, have headphones or keep family members out of earshot. Informed consent is even more important when providing group counseling services. Many legal and ethical complications in small-group counseling settings are more pronounced in a virtual context, particularly in regard to ensuring confidentiality. Students may disclose sensitive or personal information in front of classmates or household members, and school counselors should take the perspective that confidentiality likely will be breached. As a result, you should inform parents/guardians when their child is participating in a small group. Parent/guardian notification allows you to share the group's purpose, focus and goals and inform them about the challenges of maintaining confidentiality in a virtual format. Informing parents/guardians of the benefits and limitations of group counseling provides them an opportunity to make an informed decision and opt their child out of services if they choose. It is helpful to share this information both verbally (video or phone) and in writing. While best practice is to obtain written consent from parents, it can be challenging in a virtual setting. At minimum, school counselors should obtain verbal consent and document it is received from parents/guardian before students begin attending virtual small group sessions.

VIRTUAL: Is it necessary to get parent/guardian consent for individual counseling in a virtual setting?
Challenges exist in obtaining parent/guardian consent in a brick-and-mortar school setting and are even more pronounced in a virtual context. Despite the complications of providing virtual school counseling services, it is important to adhere to the same ethical guidelines as you would in person. Some school districts have specific policies and procedures around parent/guardian consent. If your district previously required consent for school counseling services when you worked in person, you should continue to adhere to those policies in a virtual setting unless they have been softened or amended. Similarly, you must comply if your district enacted a new policy for obtaining parental permission when providing virtual school counseling services. Best practice is to inform parents/guardians when you are providing individual counseling for a student over more than one or two sessions. Currently it may be challenging to simply inform parents/guardians without adding the need for a parental signature. Nevertheless, you should make every effort to inform parents/guardians about the risks and benefits of providing individual virtual school counseling services, including limits of confidentiality in a video or electronic format. It is impossible to guarantee confidentiality in an online setting; therefore, both students and parents need to be informed of these limitations.

My school and district have an electronic management system and want me to include the names of the students I see and the reasons I am working with them. Does that break confidentiality?
It is in your best interest to maintain these records as well. And, if you keep the reasons vague enough, you are still protecting student confidentiality while also informing parents/guardians, teachers and/or administrators that the student is accessing you for support. It's also a reminder to administrators of the need for your position. The ASCA Ethical Standards for School Counselors state: Section A.2n. Advocate with appropriate school officials for acceptable encryption standards to be utilized for stored data and currently acceptable algorithms to be utilized for data in transit. Avoid using software programs without the technological capabilities to protect student information based upon currently acceptable security standards and the law.

VIRTUAL: What FERPA and HIPPA guidelines should school counselors follow in virtual school counseling?
School counselors have expressed much angst regarding whether or not the platform they're being asked to use is Health Insurance Portability Accountability Act (HIPAA) compliant. HIPAA does not apply to elementary or secondary schools except in "in a few limited circumstances" (USDOE and USDHHS, 2019, p. 8). Schools that receive federal funds are not HIPAA-covered entities, because the health information maintained on a student's record is an education record and covered by Family Educational Rights and Privacy Act (FERPA). Use the platform your district has assigned because this is safest for you. If the district did not vet the platform for privacy, you may need to advocate for a change, but you do not have to worry about whether the platform is HIPAA compliant; even mental health providers who are under contract and control of the district are covered under FERPA, not HIPAA. If your school is private and receives no federal funds, you may encounter an unusual case in which someone who bills for health care might fall under HIPAA. For example, "if a private elementary or secondary school not subject to FERPA employs a physician who bills a health plan electronically for the care provided to students (making the school a HIPAA-covered entity), the school must comply with the HIPAA rules regarding the individually identifiable health information of its patients" (USDOE and USDHHS, 2019, p. 8). Get all the information you need on how HIPAA and FERPA intersect and an easy-to-read chart.

VIRTUAL: What are some things I can do to ensure confidentiality?
It is important to note that we cannot completely "ensure" confidentiality in an online setting given our limitations. We cannot know the student is alone, for example. However, these practices can help work toward this ideal:

Use headphones with a microphone, and suggest students do as well.

Use a white noise machine to help prevent others from overhearing private conversations

Identify a separate or private room. (You may think you are starting with an academic topic, but the discussion may venture into other areas.)

VIRTUAL: My school wants school counselors to record phone calls or virtual meetings with students and families. Is this something I should do?
It depends. For academic advising or college-related topics, this may be okay as long as you let the student and family know ahead of time that the session is being recorded. Obviously, you will not be able to have private (confidential) conversations with students given that these will be recorded and made available to administration.
Working With Administrators and Other Staff

On several student IEPs, the special education director has noted that weekly counseling be provided. This prevents me from fully implementing a comprehensive program. What do I do?
It can be difficult to curtail the process of writing school counselors into IEPs. Explain that the teacher or the inclusive classroom can better handle interventions targeting social skills and anger management due to the constant need to reinforce or extinguish behavior in the authentic context of the classroom where the behaviors occur. You can support regular education and special education students in brief group counseling or behavior management programs, but a long-term approach that interferes with the student's education is an inappropriate use of school counselors' time.

IEP teams need leadership, communication and clarity regarding the appropriate use of IEPs. The team leader should ensure every team member understands that the school counselor's role must be realistic and relevant as defined by ASCA. School counselors serve all students in their charge; it is unethical and professionally questionable when others define school counselors' role as acting outside their scope of practice and serving a small percentage of their population to the exclusion of hundreds of other students in their caseload.

The educators in my state are planning to strike. Am I required to participate? Would my participation be considered student abandonment?
You are not required to do anything that isn't federal, state or county law, district or school policy, or mandated by your supervisor. This means you are not required to participate in any strikes unless you feel compelled to do so. As for student abandonment, if you believe the safety and wellbeing of your students will suffer in your absence, that may be something to consider. Consider the length of the absence, whether the family provide appropriate support in your absence and other resources that may be available to students if you chose to strike.

Student Harmful Behavior

My district recently purchased a software package that sends alerts to the school and district when students engage in potentially harmful behavior online. As the school counselor, I'm expected to follow up with all the students for whom alerts were received. This is taking all my time. What do I do and what are the liabilities?
Those who favor this type of software argue that it can save lives. However, if schools choose to use this type of software, it's important to bypass the school and send alerts directly to the parents, guardians or family members if a student's online activity yields red flags. This direct line of communication should also convey to parents the reason the software generated concern and possible referral resources. Some school districts use parts of the software to limit access to particular websites but don't activate the alerts. However, if schools use the alert functionality, it's likely school counselors will be assigned to follow up on the alerts. If the software developers continue to put educators into the loop instead of going straight to parents/guardians with alerts, the school district and its designees could face unneeded and unwarranted liability. In a hypothetical example, a student makes a suicide attempt Saturday night, but 24 hours earlier at 11 p.m. on a Friday night, when the school counselor wasn't working, the student's online activity indicated suicidal ideation. The student's online activity was not detected because the school district used the software to block certain sites but opted out of the self-harm alerts. Or, the school district did accept alerts, but the alert came in when the school counselor wasn't working. Could this create liability? Possibly. The argument is weak that liability would follow because a school district's actions or lack of action would have to be the actual cause of the death, but do school districts really want to test the argument?

A student at my school sent me an email indicating another student is expressing suicidal thoughts. What are my obligations?
Suicide reporting does not hinge on certainty of harm or your discretion. Waiting until you have certainty is dangerous. The only knowledge you need to meaningfully act is an expressed, implied, veiled, peer-reported or rumored suicidal ideation. The consequence of the risk - death of a child - is too great. We must err of the side of caution. School counselors should never rely on a student's denial of suicide intent. Students who are bent on self-harm will escape our scrutiny by telling us what they think we want to hear. If something prompted you to question a student about suicide, then you should talk to the parents/guardians as well. In-school suicide assessments are dangerous if relied on for conclusive answers. If a school district performs suicide assessments, these assessments should only be used to alert parents/guardians to the need to monitor their child's safety and to get them professional mental health care to evaluate and, if necessary, treat the suicide risk. The standard of care for school counselors when informally assessing students who are identified as a potential suicide risk is to employ these assessments with extreme caution, with a follow-up assessment completed by a mental health professional who has been trained to assess the risk. School counselors who rely on an in-school suicide assessment for definitive answers are not only negligent but reckless in their evaluation.

A student told me she cuts herself. Do I need to tell her parents?
Self-harm can feel like a tricky situation because research is unclear of the intent or impact. Ultimately, cutting is a form of self-harm, and best practice and the ASCA Ethical Standards for School Counselors advise school counselors to inform parents/guardians so they have the opportunity to intervene. This helps ensure the student's overall safety and can help the student get additional help outside of school.

What do I do if a student tells me she has heard another student brought a firearm to school?
As a school employee, your obligation is to the safety of all students. Inform administration and the school resource officer or police, and allow them to move forward from there.

What is the school counselor's responsibility when a student may be a risk to self and a parent/guardian cannot be located?
ASCA's position statement The School Counselor and Suicide Risk Assessment indicates our primary responsibility is to notify parents/guardians. Educators and school counselors stand in loco parentis, meaning we stand in the parent's place when the student is at school. In a brick-and-mortar setting, good practice is to keep the student with you until you can make contact with the parent. At times, the student may have to stay with you after school until the parent/guardian can be reached. As ASCA's position statement indicates, students may say things to avoid scrutiny; therefore, parent contact is imperative. If the school day has ended and all attempts to contact a parent have been unsuccessful, it may be necessary to contact law enforcement and/or child protective services to take custody of the student and keep the student safe.

VIRTUAL: If counseling is being provided remotely, it is critical to always know the physical address of your student's location. In the event of risk of harm to self or another, the school counselor should attempt to keep the student online while simultaneously trying to contact a parent or guardian. In the event a parent or guardian is unable to be reached, law enforcement should be sent to the student's location to ensure the student's safety.

What do I do if my school district requires me to indicate a student's level of risk on suicide risk assessment paperwork?
A school counselor's role in working with students at-risk for suicide is complex. You must navigate your legal and ethical responsibilities toward students, parents/guardians and the school district. You have a duty of care and legal obligation to make every attempt to prevent a student's suicide and have the responsibility to notify parents/guardians anytime you conduct a suicide risk assessment with a student. It is impossible for a school counselor to know a student's level of suicide risk with certainty, but some districts still require school counselors to document a student's level of risk as low, medium, or high. Although it is important to comply with mandated district procedures, do not document or indicate to a parent/guardian that a student is low risk for suicide since you have no way of knowing with assurance that this is the case. Remembe, FERPA grants parents/guardians the right to access anything you write down. Therefore, if you do not directly tell a parent you believe the child is at low risk but indicate so on a suicide risk assessment form, the parent still will access to that information. The best approach is to consider noting "unable to determine" if a child falls under the low risk category on a district suicide risk assessment form. In addition, always notify a parent/guardian that you conducted suicide risk assessment on a student (at any risk level) and support parents/guardians in obtaining mental health services for the child.

Dual Relationships

I live in a small, rural community and have my LPC and run a private practice after school hours. Does it create a dual relationship if I see current or previous students in my private practice?
The ASCA Ethical Standards for School Counselors state: Ensure there is not a conflict of interest in providing referral resources. School counselors do not refer or accept a referral to counsel a student from their school if they also work in a private counseling practice.

My son will be a student at my school next year. What do I need to do to avoid a dual relationship?
If a dual relationship is unavoidable, the school counselor is responsible for taking action to eliminate or reduce the potential for harm to the student through use of safeguards, which might include informed consent, consultation, supervision and documentation. The best way to minimize any negative impact is to assign the family member to a different school counselor. If the school counselor is the only one in the building, then the school counselor must work to ensure there isn't even an appearance of gaining any unfair advantages for the school counselor's son.

My principal has asked me to teach a class and assign grades to the students. Is that permitted? Does that create a dual relationship?
Sadly, this isn't uncommon. Your administrator is legally your supervisor and determines your role. However, be careful of going down this road and setting precedence. Remind your administrator that teaching a class puts students at risk as you will need to prioritize any crisis or suicidal ideation over the class you're teaching, which could leave your classroom students unsupervised and potentially unsafe. Additionally, being responsible for assigning grades to students leads to a dual relationship and should be avoided to minimize potential harm to students.

Do I need a signed release before meeting with a student virtually?
It is recommended to follow the policies of your school. If students do not sign releases to meet with you in your typical role on site at your school, it may not be necessary to get additional permission. However, it is important to follow the policies established by your school district, particularly in relation to the move to online learning.

Can school counselors take home educational records if asked to do so by an administrator?
There is no prohibition against teachers and school counselors taking home educational records, assuming the school counselors/teachers are school officials with legitimate educational interests, which they probably are. They should just be sure to protect the information they take home and ensure other people who are not school officials or parents don't see the information.

Our school provided laptops to our students. Through a monitoring system our school district uses, we are seeing some of the things students are searching. These include issues such as substance use, rape and suicide. What is our legal obligation when we see these searches?
An internet search doesn't necessarily indicate serious and foreseeable harm to self or others but could. If the monitoring system is in place, always alert parents if a suicide topic is being researched, and provide community resources and ask the parents to seek outside resources to address what is going on with their child. The district needs to determine a way to respond to serious concerns without burdening the school counselors and also determine which topics will trigger a call to parents. Perhaps an administrator could be responsible for this since the monitoring system is already in place anyway. The administrator and school counselor could collaborate about issues requiring outreach from the school to the student and families. The school district may want to see if the software has an alert that will skip the school and go right to the parent/family. Districts may also consider working with parents and families about how to appropriately monitor their child's online activity.

Technology

VIRTUAL: My district wants me to use one type of online conferencing technology, but I'd rather use a different kind. Is this okay?
It is far safer to use what the district suggests. The district has likely vetted the program to make sure it will interface and integrate with the district's system and security approach. For example, one large urban district requires Microsoft Teams because it is part of the larger group of software applications fully adopted and integrated with the district's systems and security. This protects the educator against false accusations and the student against exploitation because the district can review activity occurring in Teams. It is not a matter of which program or app is superior but rather which online program offers the best layer of protection for all as determined by the district.

VIRTUAL: What are some considerations when using a specific platform for virtual/distance school counseling?

Read the privacy policies of the platforms your school system uses.

Know limitations of the district's platform.

Advocate for a change if the platform is thought to be detrimental.

Don't select or use a platform without district approval.

Can I use my personal cell phone to talk with students and families?
It is recommended to use school-issued devices. However, if the school has not provided you with devices, you may need to discuss the possibility of using your own devices. If it is decided that you will use your personal device, it's important to develop boundaries around your working hours and communicate this to students and families. In addition, be sure you maintain these boundaries, such as not answering the phone at times you are not able to assist a student. It would be helpful to use away messages or other communications to direct students to where they may get help outside of your available working hours.
If you want to block a phone number, you can follow these steps:

Enter *67.

Enter the number you wish to call (including area code).

Tap Call. The words "Private," "Anonymous" or some other indicator will appear on the recipient's phone instead of your mobile number.

Do I have to use the computer the school issued me, or can I use my much superior laptop?
You must use the school-issued computer unless the district offers you an exception. Again, it is about safety and security. There are privacy settings that protect district computers that your personal computer may not have. Advocate for your equipment needs, but be careful not to go against school district dictates regarding equipment.
Appropriate Duties

I am being asked to make home visits for those students who have not responded to their virtual classes. Am I unreasonable to want out of this dictate?
Dictates that would be considered unheard of in the everyday life of a brick and mortar school counselor's day are suddenly appearing in virtual schools. You are right to feel uncomfortable. Use all your powers of persuasion to get out of this. If you're in a state with a shelter-in-place order, these visits might even be illegal. Students have to be reached without putting educators at risk. Robo calls, news reports, public service announcements, etc., can be used to emphasize to the school community the importance of responding to the school. If a school counselor does end up making house calls, he or she should never go alone. Try to pair up with the school resource officer, use COVID-19 safety precautions, have a set plan as to what should be accomplished and take any resources, such as a laptop, you may need. Again, home visits should not be on the school counselor's shoulders.

What do I do if I'm asked to help with health screening?
In the current, unprecedented environment, school counselors may be tasked with participating in functions that are not typically part of their role - whether instruction is occurring virtually or in person. Advocating for appropriate responsibilities is important, but flexibility will be required. School counselors may be assigned to participate in health and safety efforts (taking temperatures, enforcing mask wearing, etc.). Given that all staff likely will be engaged in these or similar functions, this should be considered a fair-share responsibility.

What if I'm asked to teach a class to lower classroom ratios?
Classroom instruction is part of the ASCA National Model; however, teaching a course is not. Reference your school or district's job description for school counselors to determine if this is addressed. Also, it's important to know if a teaching certification is required for serving in this role. You should discuss with your administration about the student needs that may not be met or addressed as a result of teaching. Share data about the impact of your school counseling work. Ask what would be the contingency plan if you needed to deal with a school emergency. That said, at the end of the day, if a district wants to require this and there is no policy, you must comply.

VIRTUAL: How can I provide a school counseling program for all students in a virtual or hybrid setting that addresses students' academic, career and social/emotional development?
You have an ethical responsibility to deliver a school counseling program that addresses the students' academic, career and social/emotional needs. Delivering school counseling services through a virtual or hybrid setting should include all three of these domains and should not be limited by meeting platforms the district has put in place. A wide variety of resources are available on the ASCA website, www.schoolcounselor.org, for school counselors to access so they can deliver an evidence-based, effective program online.
Similar to the brick and mortar setting, school counselors should continue to rely on the data obtained from needs assessments, program evaluations, and outcome data to inform them about student needs and the effectiveness of interventions. Data obtained from these assessments can be analyzed and reported to school administrators, faculty and parents in ways that highlight the current program's accomplishments and limitations. Findings from these reports will provide the evidence needed to determine whether all three school counseling domains are addressed in the virtual or hybrid setting.

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Legal & Ethical FAQ | American School Counselor Association (ASCA)

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Legal and Ethical FAQs From student safety and confidentiality to interactions with parents/guardians and administrators, school counselors encounter a range of legal and ethical issues every day. Here we've gathered some frequently asked legal and ethical questions to help guide you in your daily work.

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Jacobson, L. (2017). Sexting incidents in schools present challenges for

administrators. Retrieved from https://www.educationdive.com/news/sexting-incidents-in-schools-present-challenges-for-administrators/503320/

Link: https://www.educationdive.com/news/sexting-incidents-in-schools-present-challenges-for-administrators/503320/

·       School administrators have seen an increased amount of sexual text messages, also known as “sexting,” being referred to them because of student issues (Jacobson, 2017).

·       State laws vary on this topic and how to respond, especially considering that if images are circulated among educational adults. Transferring or viewing images or videos might be considered possession of child pornography (Jacobson, 2017).

·       Counselors need to be aware of this prevalent issue and prepare for repercussions of sexting incidents. Some states and school districts have already started teaching lessons on privacy laws and guiding students to think before sharing private pictures of videos.

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Dive Brief:

School administrators are increasingly being called on to handle sexting incidents in schools that involve students as well as staff members, Education Week reports.

The article cites a 2009 Pew Research Center report which found 4% of teens with cell phones had sent a text to someone that included a sexually explicit or suggestive photo, and 15% also reported receiving such a text.

Because state laws on sexting vary, school administrators are often left in a gray area over to how to respond, especially when they are looking to preserve evidence, the article says, and they can even face legal trouble under laws related to child pornography if they want to consult with other school leaders over the incident.

Dive Insight:

More recent data from the Cyberbullying Research Center shows that 12% of students in the 12- to 17-year-old range say they have sent an explicit image of themselves at least once, and 4% say they have done so within the past month. About 19% said they had received such a message. The center's researchers surveyed 5,500 middle and high school students and suggest that these rates are lower than in some other reports. The center also provides digital citizenship resources for educators.

Teaching students about the possible consequences of sexting is one aspect of the rising emphasis on digital literacy lessons in schools. Common Sense Education, which offers classroom lessons on media, is another source that teachers and librarians are using to help students think before they share or post private photos.

A brief from the American Association of School Administrators recommends that schools and districts partner with other community organizations to train teachers in internet safety and how sexting connects to the larger issue of cyberbullying. Schools can also draw attention to the dangers of sexting among students and parents by holding assemblies, distributing resources, and providing reminders throughout the year.

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Sexting incidents in schools present challenges for administrators

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School administrators are increasingly being called on to handle sexting incidents in schools that involve students as well as staff members, Education Week reports. The article cites a 2009 Pew Research Center report which found 4% of teens with cell phones had sent a text to someone that included a sexually explicit or suggestive photo, and 15% also reported receiving such a text.

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Link: https://www.edweek.org/ew/articles/2018/06/06/courts-take-expansive-view-in-transgender-rights-cases.html?r=1586118449&mkey=26921CAC-FC0B-4757-9B5E-2DA19ACB7456

·       This news article informs the audience of the current judicial and legislative view toward lesbian, gay, bisexual, and transgender (LGBTQ) students in a school setting.

·       A Virginia district court ruled that a female-born transgender teenager could use the boy’s restroom and locker room, citing Title IX of the Education Amendments Act of 1977 and 14th Amendment (Doe by and Through Doe v. Boyertown Area School District, 2018; Walsh, 2018).

·       These court judgements could have serious implications on students who claim to be LGBTQ, as they are often bullied and discriminated against for their personal views and beliefs.

·       Educators and counselors need to be aware of the ever-changing viewpoints concerning judicial laws so they can adapt and make informed decisions if a situation arises.

·       Gender stereotyping and discrimination is viewed as being against the law. Other students may feel uncomfortable with a girl using a male restroom or locker room and turn to cyberbullying that individual to get them to stop or express their views.

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Rulings trend against emerging Trump position

Two recent federal court rulings add to the growing body of decisions that find legal protections for transgender students in federal antidiscrimination laws and that run counter to the views emerging from President Donald Trump's administration on the issue.

In late May, a federal appeals court refused to block a Pennsylvania school district's policy of permitting transgender students to use the restrooms or locker rooms consistent with their gender identity. One unusual aspect of the case involving the Boyertown Area School District is that a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled unanimously from the bench, about a half hour after hearing oral arguments on May 24, to reject an injunction sought by a group of students who contend the district's pro-transgender policy harms their privacy.

The court issued a brief written order the same day stating that a formal opinion would follow but that it was embracing the reasoning of the federal district judge in the case, who had rejected the privacy arguments of the students opposing the Boyertown district's transgender-inclusive policy.

Earlier that week, on May 22, a federal district judge in Virginia ruled in favor of a female-born transgender teenager, Gavin Grimm, who challenged his school district's policy of barring him from using the restrooms for males.

"This court joins [other federal district and appellate courts] in concluding that claims of discrimination on the basis of transgender status are per se actionable under a gender stereotyping theory under Title IX" of the Education Amendments of 1972, said the decision by U.S. District Judge Arenda L. Wright Allen of Norfolk, Va., in the case involving the Gloucester County, Va., school district.

The judge also found that the 14th Amendment's guarantee of equal protection of the law applied to transgender students.

"Since the new administration came into office in 2017 and began revoking guidance [on transgender legal protections under Title IX], court after court has held that the statute itself protects trans people and LGB [lesbian, gay, and bisexual] people from discrimination, and that you don't need that agency guidance," said Joshua A. Block, a senior staff attorney with the American Civil Liberties Union's LGBT and HIV Project, who represents Grimm.

Seeking Further Clarification

The Trump administration did not file briefs in the Boyertown or Gloucester County cases (nor in other pending transgender cases). But a range of actions since Trump took office in January 2017 have fueled the view that the administration does not support an interpretation of Title IX that covers transgender discrimination.

U.S. Secretary of Education Betsy DeVos told a House education committee hearing on May 22 that court precedent was mixed on the issue of legal protections for transgender students and that neither the U.S. Supreme Court nor Congress had settled the question.

"That is not an area where law has been clarified," DeVos said. "I am not going to make up law from the Department of Education."

In early 2017, the Trump administration rescinded Education Department guidance issued under President Barack Obama that interpreted the department's Title IX regulations to require schools to allow transgender students to use the restroom and locker rooms consistent with their gender identity. This past February, the department indicated that its office for civil rights will no longer investigate complaints from transgender students related to restroom discrimination.

However, DeVos has repeatedly said that all students, including transgender students, deserve protection from bullying and unfair treatment in schools.

While the Trump administration has not yet fully formalized its views on the protection of transgender students under Title IX, there are other clues about the direction it is headed.

Wave of Rulings

Just as there has been much litigation over Title IX and transgender students in recent years, there has been a wave of lower court rulings interpreting the protection against sex discrimination in employment in Title VII of the Civil Rights Act of 1964 to cover cases of bias against gay workers.

In a case involving a gay employee of a New York state skydiving company who alleged discrimination by his employer, the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled in February that "sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination."

The U.S. Department of Justice under Trump filed a friend-of-the-court brief in the case arguing that discrimination based on sexual orientation is not sex-based bias covered by Title VII.

"An employer who discriminates based on sexual orientation alone does not treat similarly situated employees differently but for their sex," the administration's brief argued. "Gay men and women are treated the same, and straight men and women are treated the same."

The skydiving company on May 30 filed an appeal with the Supreme Court. The legal analysis of sex discrimination in Title VII has been influential for those courts that have ruled on Title IX and transgender students as well.

In ruling in the Grimm case in May, Judge Wright cited Title VII more than 20 times as she held that Title IX prohibition against discrimination "based on sex" in federally funded education programs encompasses bias against transgender students.

"Allegations of gender stereotyping are cognizable Title VII sex discrimination claims and, by extension, cognizable Title IX sex discrimination claims," Wright said.

The ACLU's Block said that while Wright's decision clears the way for a trial in Grimm's case, the main issue of dispute between the parties is the legal question that the judge decided-that Title IX protects transgender students against discrimination.

While Grimm's case is an example of a transgender student challenging what he views as an oppressive school policy, the Pennsylvania case is an example of the main other type of lawsuit in this area: one brought by students claiming that pro-transgender school policies harm their privacy to use facilities among peers of their same birth gender.

"Sex in federal law has always referred to the biological difference between men and women," said Christiana Holcomb, a lawyer with Alliance Defending Freedom, a Scottsdale, Ariz.-based legal organization that backs several student privacy lawsuits around the country. "Those courts that have ruled to the contrary are out of step with the plain meaning of Title IX."

Holcomb and the ADF are representing four students in the Boyertown district who object to a policy, adopted during the 2016-17 school year, of allowing transgender students to use facilities consistent with their gender identity.

In court papers, the ADF argued that the school district's policy favored "a subjective continuum of genders" that "eliminates the law's longstanding respect for the anatomical differences between the sexes."

"We're trying to protect the privacy rights of every student, including transgender students and our clients," said Holcomb. "School districts have a duty to protect the privacy and dignity of everyone in their schools."

Mara Keisling, the executive director of the National Center for Transgender Equality, an advocacy group based in Washington, said "the trends in the courts are absolutely clear: They are ruling again and again with us."

"School districts have to deal with the reality that trans students exist," she said. "They have to operate within the reality that there is a Title IX, and it's very, very clear based on decision after decision that trans people are covered by it. Most schools are doing the right thing."

Published in Print: June 6, 2018, as Courts Take Expansive View In Transgender-Rights Cases

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Courts Take Expansive View in Transgender-Rights Cases

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Two recent federal court rulings add to the growing body of decisions that find legal protections for transgender students in federal antidiscrimination laws and that run counter to the views emerging from President Donald Trump's administration on the issue.

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Law #1
o Discrimination Prohibited, CFR 34 § 100.3
o Administrative Law
o https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr100.html#S2
o This law makes it illegal to discriminate against someone based on race, color, or national of origin. This law discusses issues related to bullying a student based on their race or color. It provides a detailed background regarding what the school must do, or act on, to counteract or stop instances of bullying.

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[Notice to Readers]
TITLE 34-EDUCATION

SUBTITLE B-REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION

CHAPTER 1-OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION
PART 100-NONDISCRIMINATION UNDER PROGRAMS RECEIVING FEDERAL ASSISTANCE THROUGH THE DEPARTMENT OF EDUCATION EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Sec.

100.1 Purpose.

100.2 Application of this regulation.

100.3 Discrimination prohibited.

100.4 Assurances required.

100.5 Illustrative application.

100.6 Compliance information.

100.7 Conduct of investigations.

100.8 Procedure for effecting compliance.

100.9 Hearings.

100.10 Decisions and notices.

100.11 Judicial review.

100.12 Effect on other regulations; forms and instructions.

100.13 Definitions.

Appendix A to Part 100-Federal Financial Assistance to Which These Regulations Apply

Appendix B to Part 100-Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National Origin, Sex, and Handicap in Vocational Education Programs

Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1, unless otherwise noted.

Source: 45 FR 30918, May 9, 1980, unless otherwise noted.

§ 100.1 Purpose.

The purpose of this part is to effectuate the provisions of title VI of the Civil Rights Act of 1964 (hereafter referred to as the "Act") to the end that no person in the United States shall; on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Education.

( Authority: Sec. 601, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d)

§ 100.2 Application of this regulation.

This regulation applies to any program to which Federal financial assistance is authorized to be extended to a recipient under a law administered by the Department, including the Federal financial assistance listed in appendix A of this regulation. It applies to money paid, property transferred, or other Federal financial assistance extended after the effective date of the regulation pursuant to an application approved prior to such effective date. This regulation does not apply to (a) any Federal financial assistance by way of insurance or guaranty contracts, (b) money paid, property transferred, or other assistance extended before the effective date of this regulation, (c) the use of any assistance by any individual who is the ultimate beneficiary, or (d) any employment practice, or any employer, employment agency, or labor organization, except to the extent described in § 100.3. The fact that a type of Federal assistance is not listed in appendix A shall not mean, if title VI of the Act is otherwise applicable, that a program is not covered. Federal financial assistance under statutes now in force or hereinafter enacted may be added to this list by notice published in the FEDERAL REGISTER.

(Authority: Secs. 602, 604, Civil Rights Act of 1964; 78 Stat. 252, 253; 42 U.S.C. 2000d-1, 2000d-3)

§ 100.3 Discrimination prohibited.

(a) General. No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this part applies.

(b) Specific discriminatory actions prohibited. (1) A recipient under any program to which this part applies may not, directly or through contractual or other arrangements, on ground of race, color, or national origin:

(i) Deny an individual any service, financial aid, or other benefit provided under the program;

(ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;

(iii) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;

(iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;

(v) Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program;

(vi) Deny an individual an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program (including the opportunity to participate in the program as an employee but only to the extent set forth in paragraph (c) of this section).

(vii) Deny a person the opportunity to participate as a member of a planning or advisory body which is an integral part of the program.

(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.

(3) In determining the site or location of a facilities, an applicant or recipient may not make selections with the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any programs to which this regulation applies, on the ground of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this regulation.

(4) As used in this section, the services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefits provided in or through a facility provided with the aid of Federal financial assistance.

(5) The enumeration of specific forms of prohibited discrimination in this paragraph and paragraph (c) of this section does not limit the generality of the prohibition in paragraph (a) of this section.

(6) (i) In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.

(ii) Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.

(c) Employment practices. (1) Where a primary objective of the Federal financial assistance to a program to which this regulation applies is to provide employment, a recipient may not (directly or through contractual or other arrangements) subject an individual to discrimination on the ground of race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising, employment, layoff or termination, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and use of facilities), including programs where a primary objective of the Federal financial assistance is (i) to reduce the employment of such individuals or to help them through employment to meet subsistence needs, (ii) to assist such individuals through employment to meet expenses incident to the commencement or continuation of their education or training, (iii) to provide work experience which contributes to the education or training of such individuals, or (iv) to provide remunerative activity to such individuals who because of handicaps cannot be readily absorbed in the competitive labor market. The following, under existing laws, have one of the above objectives as a primary objective:

(A) Projects under the Public Works Acceleration Act, Pub. L. 87-658, 42 U.S.C. 2641-2643.

(B) Work-study under the Vocational Education Act of 1963, as amended, 20 U.S.C. 1371-1374.

(C) Programs assisted under laws listed in appendix A as respects employment opportunities provided thereunder, or in facilities provided thereunder, which are limited, or for which preference is given, to students, fellows, or other persons in training for the same or related employments.

(D) Assistance to rehabilitation facilities under the Vocational Rehabilitation Act, 29 U.S.C. 32-34, 41a and 41b.

(2) The requirements applicable to construction employment under any such program shall be those specified in or pursuant to Part III of Executive Order 11246 or any Executive order which supersedes it.

(3) Where a primary objective of the Federal financial assistance is not to provide employment, but discrimination on the ground of race, color, or national origin in the employment practices of the recipient or other persons subject to the regulation tends, on the ground of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program to which this regulation applies, the foregoing provisions of this paragraph (c) shall apply to the employment practices of the recipient or other persons subject to the regulation, to the extent necessary to assure equality of opportunity to, and nondiscriminatory treatment of, beneficiaries.

(d) Indian Health and Cuban Refugee Services. An individual shall not be deemed subjected to discrimination by reason of his exclusion from benefits limited by Federal law to individuals of a particular race, color, or national origin different from his.

(e) Medical emergencies. Notwithstanding the foregoing provisions of this section, a recipient of Federal financial assistance shall not be deemed to have failed to comply with paragraph (a) of this section if immediate provision of a service or other benefit to an individual is necessary to prevent his death or serious impairment of his health, and such service or other benefit cannot be provided except by or through a medical institution which refuses or fails to comply with paragraph (a) of this section.

(Authority: Sec. 601, 602, 604, Civil Rights Act of 1964; 78 Stat. 252, 253, 42 U.S.C. 2000d, 2000d-1, 2000d-3)

§ 100.4 Assurances required.

(a) General. (1) Every application for Federal financial assistance to which this part applies, except an application to which paragraph (b) of this section applies, and every application for Federal financial assistance to provide a facility shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this part. In the case of an application for Federal financial assistance to provide real property or structures thereon, the assurance shall obligate the recipient, or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. In the case of personal property the assurance shall obligate the recipient for the period during which he retains ownership or possession of the property. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the application. The responsible Department official shall specify the form of the foregoing assurances, and the extent to which like assurances will be required of subgrantees, contractors and subcontractors, transferees, successors in interest, and other participants. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.

(2) Where Federal financial assistance is provided in the form of a transfer of real property or interest therein from the Federal Government the instrument effecting or recording the transfer shall contain a covenant running with the land to assure nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. Where no transfer of property is involved but property is improved with Federal financial assistance, the recipient shall agree to include such a covenant to any subsequent transfer of the property. Where the property is obtained from the Federal Government, such covenant may also include a condition coupled with a right to be reserved by the Department to revert title to the property in the event of a breach of the covenant where, in the discretion of the responsible Department official, such a condition and right of reverter is appropriate to the statute under which the real property is obtained and to the nature of the grant and the grantee. In the event a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on such property for the purposes for which the property was transferred, the responsible Department official may agree, upon request of the transferee and if necessary to accomplish such financing, and upon such conditions as he deems appropriate, to forbear the exercise of such right to revert title for so long as the lien of such mortgage or other encumbrance remains effective.

(b) Continuing Federal financial assistance. Every application by a State or a State agency for continuing Federal financial assistance to which this regulation applies (including the Federal financial assistance listed in part 2 of appendix A) shall as a condition to its approval and the extension of any Federal financial assistance pursuant to the application (1) contain or be accompanied by a statement that the program is (or, in the case of a new program, will be) conducted in compliance with all requirements imposed by or pursuant to this regulation, and (2) provide or be accompanied by provision for such methods of administration for the program as are found by the responsible Department official to give reasonable assurance that the applicant and all recipients of Federal financial assistance under such program will comply with all requirements imposed by or pursuant to this regulation.

(c) Elementary and secondary schools. The requirements of paragraph (a) or (b) of this section with respect to any elementary or secondary school or school system shall be deemed to be satisfied if such school or school system (1) is subject to a final order of a court of the United States for the desegregation of such school or school system, and provides an assurance that it will comply with such order, including any future modification of such order, or (2) submits a plan for the desegregation of such school or school system which the responsible Department official determines is adequate to accomplish the purposes of the Act and this part, at the earliest practicable time, and provides reasonable assurance that it will carry out such plan; in any case of continuing Federal financial assistance the responsible Department official may reserve the right to redetermine, after such period as may be specified by him, the adequacy of the plan to accomplish the purposes of the Act and the regulations in this part. In any case in which a final order of a court of the United States for the desegregation of such school or school system is entered after submission of such a plan, such plan shall be revised to conform to such final order, including any future modification of such order.

(d) Assurance from institutions. (1) In the case of any application for Federal financial assistance to an institution of higher education (including assistance for construction, for research, for special training project, for student loans or for any other purpose), the assurance required by this section shall extend to admission practices and to all other practices relating to the treatment of students.

(2) The assurance required with respect to an institution of higher education, hospital, or any other institution, insofar as the assurance relates to the institution's practices with respect to admission or other treatment of individuals as students, patients, or clients of the institution or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution.

(Authority: Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1. Sec. 182; 80 Stat. 1209; 42 U.S.C. 2000d-5)
§ 100.5 Illustrative application.
The following examples will illustrate the programs aided by Federal financial assistance of the Department. (In all cases the discrimination prohibited is discrimination on the ground of race, color, or national origin prohibited by title VI of the Act and this regulation, as a condition of the receipt of Federal financial assistance).

(a) In federally-affected area assistance (Pub. L. 815 and Pub. L. 874) for construction aid and for general support of the operation of elementary or secondary schools, or in more limited support to such schools such as for the acquisition of equipment, the provision of vocational education, or the provision of guidance and counseling services, discrimination by the recipient school district in any of its elementary or secondary schools in the admission of students, or in the treatment of its students in any aspect of the educational process, is prohibited. In this and the following illustrations the prohibition of discrimination in the treatment of students or other trainees includes the prohibition of discrimination among the students or trainees in the availability or use of any academic, dormitory, eating, recreational, or other facilities of the grantee or other recipient.

(b) In a research, training, demonstration, or other grant to a university for activities to be conducted in a graduate school, discrimination in the admission and treatment of students in the graduate school is prohibited, and the prohibition extends to the entire university.

(c) In a training grant to a hospital or other nonacademic institution, discrimination is prohibited in the selection of individuals to be trained and in their treatment by the grantee during their training. In a research or demonstration grant to such an institution discrimination is prohibited with respect to any educational activity and any provision of medical or other services and any financial aid to individuals incident to the program.

(d) In grants to assist in the construction of facilities for the provision of health, educational or welfare services, assurances will be required that services will be provided without discrimination, to the same extent that discrimination would be prohibited as a condition of Federal operating grants for the support of such services. Thus, as a condition of grants for the construction of academic, research, or other facilities at institutions of higher education, assurances will be required that there will be no discrimination in the admission or treatment of students.

(e) Upon transfers of real or personal surplus property for educational uses, discrimination is prohibited to the same extent as in the case of grants for the construction of facilities or the provision of equipment for like purposes.

(f) Each applicant for a grant for the construction of educational television facilities is required to provide an assurance that it will, in its broadcast services, give due consideration to the interests of all significant racial or ethnic groups within the population to be served by the applicant.

(g) A recipient may not take action that is calculated to bring about indirectly what this regulation forbids it to accomplish directly. Thus, a State, in selecting or approving projects or sites for the construction of public libraries which will receive Federal financial assistance, may not base its selections or approvals on criteria which have the effect of defeating or of substantially impairing accomplishments of the objectives of the Federal assistance as respects individuals of a particular race, color or national origin.

(h) In some situations, even though past discriminatory practices attributable to a recipient or applicant have been abandoned, the consequences of such practices continue to impede the full availability of a benefit. If the efforts required of the applicant or recipient under § 100.6(d), to provide information as to the availability of the program or activity and the rights of beneficiaries under this regulation, have failed to overcome these consequences, it will become necessary under the requirement stated in paragraph (i) of § 100.3(b)(6) for such applicant or recipient to take additional steps to make the benefits fully available to racial and nationality groups previously subject to discrimination. This action might take the form, for example, of special arrangements for obtaining referrals or making selections which will insure that groups previously subjected to discrimination are adequately served.

(i) Even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not in fact be equally available to some racial or nationality groups. In such circumstances, an applicant or recipient may properly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups, not then being adequately served. For example, where a university is not adequately serving members of a particular racial or nationality group, it may establish special recruitment policies to make its program better known and more readily available to such group, and take other steps to provide that group with more adequate service.

(Authority: Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1)
§ 100.6 Compliance information.
(a) Cooperation and assistance. The responsible Department official shall to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this part and shall provide assistance and guidance to recipients to help them comply voluntarily with this part.

(b) Compliance reports. Each recipient shall keep such records and submit to the responsible Department official or his designee timely, complete and accurate compliance reports at such times, and in such form and containing such information, as the responsible Department official or his designee may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying with this part. For example, recipients should have available for the Department racial and ethnic data showing the extent to which members of minority groups are beneficiaries of and participants in federally-assisted programs. In the case in which a primary recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient as may be necessary to enable the primary recipient to carry out its obligations under this part.

(c) Access to sources of information. Each recipient shall permit access by the responsible Department official or his designee during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this part. Where any information required of a recipient is in the exclusive possession of any other agency, institution or person and this agency, institution or person shall fail or refuse to furnish this information the recipient shall so certify in its report and shall set forth what efforts it has made to obtain the information. Asserted considerations of privacy or confidentiality may not operate to bar the Department from evaluating or seeking to enforce compliance with this part. Information of a confidential nature obtained in connection with compliance evaluation or enforcement shall not be disclosed except where necessary in formal enforcement proceedings or where otherwise required by law.

(d) Information to beneficiaries and participants. Each recipient shall make available to participants, beneficiaries, and other interested persons such information regarding the provisions of this regulation and its applicability to the program for which the recipient receives Federal financial assistance, and make such information available to them in such manner, as the responsible Department official finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this regulation.

(Approved by the Office of Management and Budget under control number 1870-0500)

(Authority: Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1)

[45 FR 30918, May 9, 1980, as amended at 53 FR 49143, Dec. 6, 1988]
§ 100.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible Department official or his designee shall from time to time review the practices of recipients to determine whether they are complying with this part.

(b) Complaints. Any person who believes himself or any specific class of individuals to be subjected to discrimination prohibited by this part may by himself or by a representative file with the responsible Department official or his designee a written complaint. A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the responsible Department official or his designee.

(c) Investigations. The responsible Department official or his designee will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part. The investigation should include, where appropriate, a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this part occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with this part.

(d) Resolution of matters. (1) If an investigation pursuant to paragraph (c) of this section indicates a failure to comply with this part, the responsible Department official or his designee will so inform the recipient and the matter will be resolved by informal means whenever possible. If it has been determined that the matter cannot be resolved by informal means, action will be taken as provided for in § 100.8.

(2) If an investigation does not warrant action pursuant to paragraph (1) of this paragraph (d) the responsible Department official or his designee will so inform the recipient and the complainant, if any, in writing.

(e) Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.

(Authority: Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1)
§ 100.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure to comply with this regulation, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this part may be effected by the suspension or termination of or refusal to grant or to continue Federal financial assistance or by any other means authorized by law. Such other means may include, but are not limited to, (1) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking, and (2) any applicable proceeding under State or local law.

(b) Noncompliance with § 100.4. If an applicant fails or refuses to furnish an assurance required under § 100.4 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section Federal financial assistance may be refused in accordance with the procedures of paragraph (c) of this section. The Department shall not be required to provide assistance in such a case during the pendency of the administrative proceedings under such paragraph except that the Department shall continue assistance during the pendency of such proceedings where such assistance is due and payable pursuant to an application therefor approved prior to the effective date of this part.

(c) Termination of or refusal to grant or to continue Federal financial assistance. No order suspending, terminating or refusing to grant or continue Federal financial assistance shall become effective until (1) the responsible Department official has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be secured by voluntary means, (2) there has been an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this part, (3) the expiration of 30 days after the Secretary has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action. Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance shall be limited to the particular political entity, or part thereof, or other applicant or recipient as to whom such a finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.

(d) Other means authorized by law. No action to effect compliance by any other means authorized by law shall be taken until (1) the responsible Department official has determined that compliance cannot be secured by voluntary means, (2) the recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance, and (3) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days additional efforts shall be made to persuade the recipient or other person to comply with the regulation and to take such corrective action as may be appropriate.

(Authority: Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1. Sec. 182, 80 Stat. 1209; 42 U.S.C. 2000d-5)
§ 100.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by § 100.8(c), reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected applicant or recipient. This notice shall advise the applicant or recipient of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken, and the matters of fact or law asserted as the basis for this action, and either (1) fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request of the responsible Department official that the matter be scheduled for hearing or (2) advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 602 of the Act and § 100.8(c) of this regulation and consent to the making of a decision on the basis of such information as may be filed as the record.

(b) Time and place of hearing. Hearings shall be held at the offices of the Department in Washington, DC, at a time fixed by the responsible Department official unless he determines that the convenience of the applicant or recipient or of the Department requires that another place be selected. Hearings shall be held before a hearing examiner designated in accordance with 5 U.S.C. 3105 and 3344 (section 11 of the Administrative Procedure Act).

(c) Right to counsel. In all proceedings under this section, the applicant or recipient and the Department shall have the right to be represented by counsel.

(d) Procedures, evidence, and record. (1) The hearing, decision, and any administrative review thereof shall be conducted in conformity with sections 5-8 of the Administrative Procedure Act, and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both the Department and the applicant or recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the officer conducting the hearing at the outset of or during the hearing. Any person (other than a Government employee considered to be on official business) who, having been invited or requested to appear and testify as a witness on the Government's behalf, attends at a time and place scheduled for a hearing provided for by this part, may be reimbursed for his travel and actual expenses of attendance in an amount not to exceed the amount payable under the standardized travel regulations to a Government employee traveling on official business.

(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.

(e) Consolidated or joint hearings. In cases in which the same or related facts are asserted to constitute noncompliance with this regulation with respect to two or more Federal assistance statutes to which this part applies, or noncompliance with this part and the regulations of one or more other Federal departments or agencies issued under title VI of the Act, the responsible Department official may, by agreement with such other departments or agencies where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedures not inconsistent with this part. Final decisions in such cases, insofar as this regulation is concerned, shall be made in accordance with § 100.10.

(Authority: Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d-1)
§ 100.10 Decisions and notices.
(a) Decisions by hearing examiners. After a hearing is held by a hearing examiner such hearing examiner shall either make an initial decision, if so authorized, or certify the entire record including his recommended findings and proposed decision to the reviewing authority for a final decision, and a copy of such initial decision or certification shall be mailed to the applicant or recipient and to the complainant, if any. Where the initial decision referred to in this paragraph or in paragraph (c) of this section is made by the hearing examiner, the applicant or recipient or the counsel for the Department may, within the period provided for in the rules of procedure issued by the responsible Department official, file with the reviewing authority exceptions to the initial decision, with his reasons therefor. Upon the filing of such exceptions the reviewing authority shall review the initial decision and issue its own decision thereof including the reasons therefor. In the absence of exceptions the initial decision shall constitute the final decision, subject to the provisions of paragraph (e) of this section.

(b) Decisions on record or review by the reviewing authority. Whenever a record is certified to the reviewing authority for decision or it reviews the decision of a hearing examiner pursuant to paragraph (a) or (c) of this section, the applicant or recipient shall be given reasonable opportunity to file with it briefs or other written statements of its contentions, and a copy of the final decision of the reviewing authority shall be given in writing to the applicant or recipient and to the complainant, if any.

(c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to § 100.9(a) the reviewing authority shall make its final decision on the record or refer the matter to a hearing examiner for an initial decision to be made on the record. A copy of such decision shall be given in writing to the applicant or recipient, and to the complainant, if any.

(d) Rulings required. Each decision of a hearing examiner or reviewing authority shall set forth a ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.

(e) Review in certain cases by the Secretary. If the Secretary has not personally made the final decision referred to in paragraphs (a), (b), or (c) of this section, a recipient or applicant or the counsel for the Department may request the Secretary to review a decision of the Reviewing Authority in accordance with rules of procedure issued by the responsible Department official. Such review is not a matter of right and shall be granted only where the Secretary determines there are special and important reasons therefor. The Secretary may grant or deny such request, in whole or in part. He may also review such a decision upon his own motion in accordance with rules of procedure issued by the responsible Department official. In the absence of a review under this paragraph, a final decision referred to in paragraphs (a), (b), (c) of this section shall become the final decision of the Department when the Secretary transmits it as such to Congressional committees with the report required under section 602 of the Act. Failure of an applicant or recipient to file an exception with the Reviewing Authority or to request review under this paragraph shall not be deemed a failure to exhaust administrative remedies for the purpose of obtaining judicial review.

(f) Content of orders. The final decision may provide for suspension or termination of, or refusal to grant or continue Federal financial assistance, in whole or in part, to which this regulation applies, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this regulation, including provisions designed to assure that no Federal financial assistance to which this regulation applies will thereafter be extended under such law or laws to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this regulation, or to have otherwise failed to comply with this regulation unless and until it corrects its noncompliance and satisfies the responsible Department official that it will fully comply with this regulation.

(g) Post-termination proceedings. (1) An applicant or recipient adversely affected by an order issued under paragraph (f) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this part and provides reasonable assurance that it will fully comply with this part. An elementary or secondary school or school system which is unable to file an assurance of compliance with § 100.3 shall be restored to full eligibility to receive Federal financial assistance, if it files a court order or a plan for desegregation which meets the requirements of § 100.4(c), and provides reasonable assurance that it will comply with the court order or plan.

(2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the responsible Department official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the responsible Department official determines that those requirements have been satisfied, he shall restore such eligibility.

(3) If the responsible Department official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible Department official. The applicant or recipient will be restored to such eligibility if it proves at such hearing that it satisfied the requirements of paragraph (g)(1) of this section. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect.

(Authority: Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d-1)
§ 100.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.

(Authority: Sec. 603, 78 Stat. 253; 42 U.S.C. 2000d-2)
§ 100.12 Effect on other regulations; forms and instructions.
(a) Effect on other regulations. All regulations, orders, or like directions heretofore issued by any officer of the Department which impose requirements designed to prohibit any discrimination against individuals on the ground of race, color, or national origin under any program to which this regulation applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to any applicant for or recipient of assistance for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this regulation, except that nothing in this regulation shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this regulation. Nothing in this regulation, however, shall be deemed to supersede any of the following (including future amendments thereof):

(1) Executive Order 11063 and regulations issued thereunder, or any other regulations or instructions, insofar as such Order, regulations, or instructions prohibit discrimination on the ground of race, color, or national origin in any program or situation to which this regulation is inapplicable, or prohibit discrimination on any other ground; or

(2) Requirements for Emergency School Assistance as published in 35 FR 13442 and codified as 34 CFR, part 280.

(b) Forms and instructions. The responsible Department official shall issue and promptly make available to interested persons forms and detailed instructions and procedures for effectuating this part.

(c) Supervision and coordination. The responsible Department official may from time to time assign to officials of the Department, or to officials of other departments or agencies of the Government with the consent of such departments or agencies, responsibilities in connection with the effectuation of the purposes of title VI of the Act and this regulation (other than responsibility for review as provided in § 100.10(e)), including the achievements of effective coordination and maximum uniformity within the Department and within the Executive Branch of the Government in the application of title VI and this regulation to similar programs and in similar situations. Any action taken, determination made, or requirement imposed by an official of another Department or Agency acting pursuant to an assignment of responsibility under this section shall have the same effect as though such action had been taken by the responsible official of this Department.

(Authority: Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d-1)
§ 100.13 Definitions.
As used in this part:

(a) The term Department means the Department of Education.

(b) The term Secretary means the Secretary of Education.

(c) The term responsible Department official means the Secretary or, to the extent of any delegation by the Secretary of authority to act in his stead under any one or more provisions of this part, any person or persons to whom the Secretary has heretofore delegated, or to whom the Secretary may hereafter delegate such authority.

(d) The term reviewing authority means the Secretary, or any person or persons (including a board or other body specially created for that purpose and also including the responsible Department official) acting pursuant to authority delegated by the Secretary to carry out responsibilities under § 100.10(a)-(d).

(e) The term United States means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and possessions of the United States, and the term "State" means any one of the foregoing.

(f) The term Federal financial assistance includes (1) grants and loans of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the detail of Federal personnel, (4) the sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.

(g) The term program or activity and the term program mean all of the operations of-

(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;

(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or

(ii) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;

(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship-

(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or

(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or

(4) Any other entity that is established by two or more of the entities described in paragraph (g)(1), (2), or (3) of this section; any part of which is extended Federal financial assistance.

(Authority: 42 U.S.C. 2000d-4)

(h) The term facility includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, expansion, renovation, remodeling, alteration or acquisition of facilities.

(i) The term recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or other entity, or any individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary.

(j) The term primary recipient means any recipient which is authorized or required to extend Federal financial assistance to another recipient.

(k) The term applicant means one who submits an application, request, or plan required to be approved by a Department official, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and the term application means such an application, request, or plan.

(Authority: Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d-1)

APPENDIX A TO PART 100 -- FEDERAL FINANCIAL ASSISTANCE TO WHICH THESE REGULATIONS APPLY

Part 1 -Assistance Other Than Continuing Assistance to States

1. Loans for acquisition of equipment for academic subjects, and for minor remodeling (20 U.S.C. 445).

2. Construction of facilities for institutions of higher education (20 U.S.C. 701-758).

3. School Construction in federally-affected and in major disaster areas (20 U.S.C. 631-647).

4. Construction of educational broadcast facilities (47 U.S.C. 390-399).

5. Loan service of captioned films and educational media; research on, and production and distribution of, educational media for the handicapped, and training of persons in the use of such media for the handicapped (20 U.S.C. 1452).

6. Demonstration residential vocational education schools (20 U.S.C. 1321).

7. Research and related activities in education of handicapped children (20 U.S.C. 1441).

8. Educational research, dissemination and demonstration projects; research training; and construction under the Cooperation Research Act (20 U.S.C. 331-332(b)).

9. Research in teaching modern foreign languages (20 U.S.C. 512).

10. Training projects for manpower development and training (42 U.S.C. 2601, 2602, 2610a-2610c).

11. Research and training projects in Vocational Education (20 U.S.C. 1281(a), 1282-1284).

12. Allowances to institutions training NDEA graduate fellows (20 U.S.C. 461-465).

13. Grants for training in librarianship (20 U.S.C. 1031-1033).

14. Grants for training personnel for the education of handicapped children (20 U.S.C. 1431).

15. Allowances for institutions training teachers and related educational personnel in elementary and secondary education, or post-secondary vocational education (20 U.S.C. 1111-1118).

16. Recruitment, enrollment, training and assignment of Teacher Corps personnel (20 U.S.C. 1101-1107a).

17. Operation and maintenance of schools in Federally-affected and in major disaster areas (20 U.S.C. 236-241; 241-1; 242-244).

18. Grants or contracts for the operation of training institutes for elementary or secondary school personnel to deal with special educational problems occasioned by desegregation (42 U.S.C. 2000c-3).

19. Grants for in-service training of teachers and other schools personnel and employment of specialists in desegregation problems (42 U.S.C. 2000c-4).

20. Higher education students loan program (Title II, National Defense Education Act, 20 U.S.C. 421-429).

21. Educational Opportunity grants and assistance for State and private programs of low-interest insured loans and State loans to students in institutions of higher education (Title IV, Higher Education Act of 1965, 20 U.S.C. 1061-1087).

22. Grants and contracts for the conduct of Talent Search, Upward Bound, and Special Services Programs (20 U.S.C. 1068).

23. Land-grant college aid (7 U.S.C. 301-308; 321-326; 328-331).

24. Language and area centers (Title VI, National Defense Education Act, 20 U.S.C. 511).

25. American Printing House for the Blind (20 U.S.C. 101-105).

26. Future Farmers of America (36 U.S.C. 271-391) and similar programs.

27. Science clubs (Pub. L. 85-875, 20 U.S.C. 2, note).

28. Howard University (20 U.S.C. 121-129).

29. Gallaudet College (31 D.C. Code, Chapter 10).

30. Establishment and operation of a model secondary school for the deaf by Gallaudet College (31 D.C. Code 1051-1053; 80 Stat. 1027-1028).

31. Faculty development programs, workshops and institutes (20 U.S.C. 1131-1132).

32. National Technical Institute for the Deaf (20 U.S.C. 681-685).

33. Institutes and other programs for training educational personnel (parts D, E, and F, Title V, Higher Education Act of 1965) (20 U.S.C. 1119-1119c-4).

34. Grants and contracts for research and demonstration projects in librarianship (20 U.S.C. 1034).

35. Acquisition of college library resources (20 U.S.C. 1021-1028).

36. Grants for strengthening developing institutions of higher education (20 U.S.C. 1051-1054); National Fellowships for teaching at developing institutions (20 U.S.C. 1055), and grants to retired professors to teach at developing institutions (20 U.S.C. 1056).

37. College Work-Study Program (42 U.S.C. 2751-2757).

38. Financial assistance for acquisition of higher education equipment, and minor remodeling (20 U.S.C. 1121-1129).

39. Grants for special experimental demonstration projects and teacher training in adult education (20 U.S.C. 1208).

40. Grant programs for advanced and undergraduate international studies (20 U.S.C. 1171-1176; 22 U.S.C. 2452(b)).

41. Experimental projects for developing State leadership or establishment of special services (20 U.S.C. 865).

42. Grants to and arrangements with State educational and other agencies to meet special educational needs of migratory children of migratory agricultural workers (20 U.S.C. 241e(c)).

43. Grants by the Secretary to local educational agencies for supplementary educational centers and services; guidance, counseling, and testing (20 U.S.C. 841-844; 844b).

44. Resource centers for improvement of education of handicapped children (20 U.S.C. 1421) and centers and services for deaf-blind children (20 U.S.C. 1422).

45. Recruitment of personnel and dissemination of information on education of handicapped (20 U.S.C. 1433).

46. Grants for research and demonstrations relating to physical education or recreation for handicapped children (20 U.S.C. 1442) and training of physical educators and recreation personnel (20 U.S.C. 1434).

47. Dropout prevention projects (20 U.S.C. 887).

48. Bilingual education programs (20 U.S.C. 880b-880b-6).

49. Grants to agencies and organizations for Cuban refugees (22 U.S.C. 2601(b)(4)).

50. Grants and contracts for special programs for children with specific learning disabilities including research and related activities, training and operating model centers (20 U.S.C. 1461).

51. Curriculum development in vocational and technical education (20 U.S.C. 1391).

52. Establishment, including construction, and operation of a National Center on Educational Media and Materials for the Handicapped (20 U.S.C. 1453).

53. Grants and contracts for the development and operation of experimental preschool and early education programs for handicapped (20 U.S.C. 1423).

54. Grants to public or private non-profit agencies to carry on the Follow Through Program in kindergarten and elementary schools (42 U.S.C. 2809 (a)(2)).

55. Grants for programs of cooperative education and grants and contracts for training and research in cooperative education (20 U.S.C. 1087a-1087c).

56. Grants and contracts to encourage the sharing of college facilities and resources (network for knowledge) (20 U.S.C. 1133- 1133b).

57. Grants, contracts, and fellowships to improve programs preparing persons for public service and to attract students to public service (20 U.S.C. 1134-1134b).

58. Grants for the improvement of graduate programs (20 U.S.C. 1135-1135c).

59. Contracts for expanding and improving law school clinical experience programs (20 U.S.C. 1136-1136b).

60. Exemplary programs and projects in vocational education (20 U.S.C. 1301-1305).

61. Grants to reduce borrowing cost for construction of residential schools and dormitories (20 U.S.C. 1323).

62. Surplus real and related personal property disposal for educational purposes (40 U.S.C. 484(k)).
Part 2 - Continuing Assistance to States
1. Grants to States for public library service and construction, interlibrary cooperation and specialized State library services for certain State institutions and the physically handicapped (20 U.S.C. 351-355).

2. Grants to States for strengthening instruction in academic subjects (20 U.S.C. 441-444).

3. Grants to States for vocational education (20 U.S.C. 1241-1264).

4. Arrangements with State education agencies for training under the Manpower Development and Training Act (42 U.S.C. 2601-2602, 2610a).

5. Grants to States to assist in the elementary and secondary education of children of low-income families (20 U.S.C. 241a-242m).

6. Grants to States to provide for school library resources, textbooks and other instructional materials for pupils and teachers in elementary and secondary schools (20 U.S.C. 821-827).

7. Grants to States to strengthen State departments of education (20 U.S.C. 861-870).

8. Grants to States for community service programs (20 U.S.C. 1001-1011).

9. Grants to States for adult basic education and related research, teacher training and special projects (20 U.S.C. 1201-1211).

10. Grants to States educational agencies for supplementary educational centers and services, and guidance, counseling and testing (20 U.S.C. 841-847).

11. Grants to States for research and training in vocational education (20 U.S.C. 1281(b)).

12. Grants to States for exemplary programs and projects in vocational education (20 U.S.C. 1301-1305).

13. Grants to States for residential vocational education schools (20 U.S.C. 1321).

14. Grants to States for consumer and homemaking education (20 U.S.C. 1341).

15. Grants to States for cooperative vocational educational program (20 U.S.C. 1351-1355).

16. Grants to States for vocational work-study programs (20 U.S.C. 1371-1374).

17. Grants to States to attract and qualify teachers to meet critical teaching shortages (20 U.S.C. 1108-1110c).

18. Grants to States for education of handicapped children (20 U.S.C. 1411-1414).

19. Grants for administration of State plans and for comprehensive planning to determine construction needs of institutions of higher education (20 U.S.C. 715(b)).

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civil rights; national origin discrimination; racial discrimination; employment discrimination; limited english proficient; english (second language);

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Notice to Readers] TITLE 34-EDUCATION SUBTITLE B-REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION CHAPTER 1-OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION PART 100-NONDISCRIMINATION UNDER PROGRAMS RECEIVING FEDERAL ASSISTANCE THROUGH THE DEPARTMENT OF EDUCATION EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 Sec. 100.1 Purpose.

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Law #2

o          Kowalski v. Berkley County Schools, 652 F.3d 565 (4th Cir. 2011).

o          Judicial Law

o           http://www.ca4.uscourts.gov/Opinions/Published/101098.P.pdf

o          A high school student named Kara created a MySpace webpage at home which implied that a student named Shay had herpes. The web page titled “S.A.S.H” stood for Students Against Shay’s Herpes and included 100 other high school students who joined the group (Kowalski v. Berkley County Schools, 2011). The school suspended Kara for ten days, citing bullying and harassment as reasons. Kara then followed with suing the school for violating her freedom of speech rights. The court's stated that the school did not violated her freedom of speech rights since the student was connected to the school. That special relationship was enough for the school to be granted the right to discipline her. The court also ruled that the website would negatively impact Shay’s educational environment.

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Law #3

o          Section 504 of the Rehabilitation Act of 1973, 29 USC § 794.

o          Statutory Law

o          https://www2.ed.gov/about/offices/list/ocr/504faq.html

o          Although there is no specific constitutional law that references the act of bullying, Section 504 of the Rehabilitation Act of 1973 does protect students with disabilities (29 USC Code § 794). This law has regulations and policies in place to deter discrimination against students with a disability. The law protects a student’s rights in environments where the educational institution receives federal funding.

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Law #4

o          The First Amendment of the Constitution of the United States of America.

U.S. Const. amend. I.

o          Constitutional Law

https://www.senate.gov/civics/constitution_item/constitution.htm#amendments

o          Students have the ability to express their feelings through wearing articles of clothing, the right to refuse to speak, and the ability to use their first amendment rights in and outside of the school setting.

o   Guarantees that a student can express their opinions within reason, without fear of persecution.

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Link: https://policies.txstate.edu/university-policies/04-04-46.html

Texas State University policy specifically describes discrimination and harassment violations for its’ students in the policies and procedures statements (Texas State University [TSU] Handbook, 2019). The administrative law requires any faculty member, graduate teaching assistant, office staff, or any other individual in a supervisory position to report, “when they learn of a possible instance or allegation of discrimination” to the diversity office (TSU Handbook, § 04.01, 2019). The office will first contact all involved parties and conduct a mediation in order to create a suitable resolution. The investigation needs to be completed within 10 days and presented to the person making the claim via mail (TSU Handbook, 2019). The complainant may communicate directly with the perpetrator and can seek guidance or assistant from the Dean of Students’ Office, counseling center, academic dean, or even a faculty member (TSU Handbook, § 05.03, 2019).

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UPPS No. 04.04.46
Issue No. 9
Effective Date: 6/17/2019
Next Review Date: 10/01/2022 (E3Y)
Sr. Reviewer: Chief Diversity Officer and Director, Equity and Inclusion

1. POLICY STATEMENTS

1. Texas State University is committed to an inclusive educational and work environment that provides equal opportunity and access to all qualified persons. Texas State, to the extent not in conflict with federal or state law, prohibits discrimination on the basis of race, color, national origin, age, sex, religion, disability, veterans' status, sexual orientation, gender identity, or gender expression.

This policy describes reporting procedures for filing discrimination complaints with the Office of Equity and Inclusion and the process used to investigate and resolve them.

2. Texas State forbids discrimination in any university activity or program. Faculty members, staff employees, and students who discriminate against others in connection with a university activity or program will be considered to have violated this policy and are subject to disciplinary sanctions.

2. DEFINITIONS

1. Discrimination - conduct directed at a specific individual or a group of identifiable individuals that subjects the individual or group to treatment that adversely affects their employment or education because of their race, color, national origin, age, sex, religion, disability, veterans' status, sexual orientation, gender identity, or gender expression.

2. Harassment - is a form of discrimination consisting of unwelcome verbal, written, graphic, or physical conduct that:

1. is directed at an individual or group of individuals because of their race, color, national origin, age, sex, religion, disability, veterans' status, sexual orientation, gender identity, or gender expression; and

2. is sufficiently severe or pervasive so as to interfere with an individual's employment, education, academic environment, or participation in institution programs or activities; and creates a working, learning, program, or activity environment that a reasonable person would find intimidating, offensive, or hostile.

To constitute prohibited harassment, the conduct must be directed at the individual or group based on a protected class. Conduct not based on one of the protected classes outlined in this definition will not be actionable under this policy.

To constitute prohibited harassment, the conduct must be both objectively and subjectively harassing in nature. Harassment does not have to be targeted at a particular individual in order to create a harassing environment, nor must the conduct result in a tangible injury to be considered a violation of this policy. Whether the alleged conduct constitutes prohibited harassment depends on the totality of the particular circumstances, including the nature, frequency, and duration of the conduct in question, the location and context in which it occurs, and the status of the individuals involved.

3. Respondent - the person reported to have discriminated against another person.

4. Complainant - the person who believes he or she is the victim of discrimination.

5. Mediation - a form of alternative dispute resolution outside of the university's formal complaint processes in which an impartial person, a mediator, facilitates communication between disputing parties to promote reconciliation, settlement, and understanding.

1. An employee may request mediation to resolve a discrimination complaint:

1. prior to filing an internal discrimination complaint; or

2. after filing an internal discrimination complaint, but before a decision is made on the case.

2. The parties to the dispute must agree to:

1. participate in the mediation;

2. attend the mediation with intent to resolve the complaint; and

3. meet the terms of any mutually-agreed-upon resolution.

3. Upcoming mediation will suspend the investigation of a formal complaint pending mediation results. Should mediation not result in resolution, the investigation will resume.

Either party may contact the Office of Equity and Inclusion or Human Resources to obtain additional information on the process or refer to UPPS No. 04.04.41, Staff Employee Mediation and Grievance Policy.

6. Confidentiality - When considering reporting options, complainants should be aware that certain university personnel can maintain strict confidentiality, while others have mandatory reporting and response obligations. University personnel who are not confidential reporters, as described in Section 02.07, and who receive a report of alleged discrimination are required to share the information with appropriate administrative authorities for investigation and follow up. Texas State will protect a complainant's confidentiality by refusing to disclose his or her information to anyone outside the university to the extent permitted by law. As for confidentiality of information within Texas State, the university must balance a complainant's request for confidentiality with its responsibility to provide a safe and non-discriminatory environment for the university community.

7. Employees Required to Maintain Confidentiality - The following individuals are required to maintain confidentiality and shall not report any information about an incident without the complainant's permission:

1. medical professional, including physical and mental health professionals, licensed counselors who provide mental health counseling to members of the university community, and those who act under the supervision of a health care employee; and

2. individuals whose scope of employment include confidentiality requirements under Texas law.

8. Management Directed Inquiry (MDI) - proactive measure requested by a vice president, dean, director, chair, or department head to address potential personnel concerns regarding discrimination without a formal complaint being filed. The Office of Equity and Inclusion conducts an MDI and provides the requesting manager with the results.

3. PROCEDURES FOR REPORTING INSTANCES OF DISCRIMINATION

1. The university encourages its faculty, staff, students, and guests who believe they are victims of discrimination to seek resolution through university-supported informal (see Section 05.) and formal (see Section 06.) procedures. The university allows group filing for individuals who believe the same individual discriminated against them.

2. Complainants should report discrimination in writing as soon as possible following the alleged incident to the Office of Equity and Inclusion.

4. RESPONSIBILITIES OF MEMBERS OF THE UNIVERSITY COMMUNITY REGARDING DISCRIMINATION REPORTS

1. Anyone in a supervisory position (i.e., vice presidents, deans, directors, chairs, department heads, and supervisors) is REQUIRED to notify the chief diversity officer (CDO) and director of Equity and Inclusion when they learn of a possible instance or allegation of discrimination.

2. Anyone who is NOT in a supervisory position is ENCOURAGED to notify the CDO when they learn of a possible instance of discrimination.

3. An exception to this general reporting requirement occurs when a faculty member alleges discrimination or harassment as part of a request for a hearing related to the denial of tenure or promotion because, under The Texas State University System (TSUS) Rules and Regulations, (Chapter V, Section 4.4) such a faculty member must make this allegation in writing directly to the president.

4. The university may not dismiss a formal report until it resolves the incident, in accordance with TSUS Rules and Regulations, Chapter VII, Section 4.43. If the person decides not to file a formal complaint, the university may still take action, including conducting an MDI.

5. If a person knowingly files a false charge against any member of the university community, a contractor, or a visitor to campus, the university may subject that person to disciplinary action under university and TSUS Rules and Regulations.

5. PROCEDURES FOR INFORMAL COUNSELING AND RESOLUTION OF DISCRIMINATION REPORTS

1. Because of the sensitive nature of discrimination, the university will make every reasonable effort to provide informal avenues for counseling and resolution. As part of an informal process, the complainant can receive support and assistance from the CDO.

2. The complainant may communicate directly with the person whose conduct is offensive and may bring a third party. Before adopting a direct approach, the complainant may seek advice about how best to approach the respondent. The university encourages students to consult the Counseling Center or the Dean of Students' office; staff and faculty may seek assistance from a supervisor or the CDO. A person who believes they are a victim of discrimination:

1. may seek direct resolution of the matter through discussions with the respondent; or

2. may seek to resolve the matter by sending the respondent a letter through the U.S. mail, certified, return receipt requested. The letter should include the following three parts:

1. a factual account of what happened;

2. a description of how the writer feels about what happened; and

3. what the writer wants to happen next (e.g., the behavior to stop).

If no resolution is forthcoming, the person is strongly encouraged to report the incident or incidents to the Office of Equity and Inclusion. The person who receives the report must notify the CDO as directed in Section 04.01.

3. If a direct resolution is deemed inappropriate, the person should seek other informal counseling and resolution with a supervisor, department chair or head, Dean of Students' Office, academic dean or advisor, counselor, or the CDO.

1. The person reporting the discrimination and the recipient of the report may discuss the specifics of the situation and explore possible avenues for informal resolution which may include how to file a formal complaint, if desired (see Section 06.).

2. Recipients of the report who are supervisors must consult with the CDO. After consultation with the CDO, the recipient of the report may attempt resolution while maintaining the anonymity of the person reporting the incident. The recipient of the report must take action toward resolution within 30 calendar days of receiving the report and provide written notification of this action to the CDO.

3. Following mandatory consultation with the CDO, the supervisor or administrator will base corrective action on a full review of the circumstances. If the supervisor finds discrimination, appropriate action directed toward the respondent will be taken.

4. The supervisor is responsible for notifying the CDO and the parties involved, in writing, of the efforts at informal resolution of a discrimination report.

4. If the person claiming discrimination is dissatisfied with the informal resolution or if the 30-calendar-day timeframe has lapsed without resolution, he or she may file a formal discrimination complaint in writing with the CDO as soon as possible following the alleged incident (see Section 06.).

6. PROCEDURES FOR FORMALLY INVESTIGATING REPORTS OF DISCRIMINATION

1. A person who wishes to file a formal complaint of discrimination must notify the CDO by mail, phone, or email.

1. Complainants may include a signed letter or use the Complaint Information Form available in the Office of Equity and Inclusion as soon as possible following the alleged incident. The correspondence should include:

1. the complainant's name, address, and, if possible, a telephone number where the CDO may reach the complainant during business hours;

2. names and, if known, job title, department and contact information of the person or persons alleged to have committed the discriminatory act; and

3. a description of the alleged discriminatory act or acts in sufficient detail to enable the CDO to understand what occurred, when it occurred, and the basis for the alleged discrimination (race, color, national origin, age, sex, religion, disability, veterans' status, sexual orientation, gender identity, or gender expression).

2. Email - Complainants may file a complaint using the following email address: equityinclusion@txstate.edu. Use the same procedures as above with electronic signature.

3. Phone - Complainants may contact the CDO at the following phone number: 512.245.2539.

The CDO will keep the information confidential to the extent permitted by law.

2. The CDO will initiate an investigation of an allegation of discrimination. This includes providing the respondent with written notification of the complaint in sufficient detail to allow him or her an opportunity to respond, and conducting separate interviews with the complainant and the respondent, as well as other witnesses, if necessary. The CDO will issue a finding within 90 calendar days of the initial report.

3. The CDO will:

1. review all aspects of the complaint;

2. only investigate reports of discrimination received per Section 06.01;

3. ascertain the desired resolution from the complainant;

4. obtain pertinent information from appropriate witnesses and other sources;

5. arrange interim relief measures, if necessary, in order to ensure that a hostile environment is not created through or after the investigation;

6. notify the TSUS Office of General Counsel when an attorney serves as advisor for a party to the complaint. Either the complainant or respondent may use an advisor, including legal counsel for advisory purposes. The advisor may only advise the party and may not otherwise participate in the investigation;

7. include in the written report, a recommendation that management consult with Human Resources or Academic Affairs, as appropriate, the TSUS Office of General Counsel on appropriate corrective actions for employees, and the Dean of Students' Office for appropriate academic actions for students if the CDO ascertains that a policy violation of discrimination has occurred;

8. determine if the conduct was still inappropriate, even if it finds that no discrimination occurred; and

9. issue a final report to the complainant, respondent, and the appropriate vice president in the reporting line.

4. The vice president in the respondent's reporting line, or other designated sanctioning authority determined by the CDO, in consultation with the TSUS Office of General Counsel, will issue and impose an appropriate sanction as soon as possible, but no later than 15 calendar days after receiving the final written report. The vice president, or other designated sanctioning authority, will notify, in writing, the complainant, respondent, and CDO of the sanction imposed.

5. The decision of the vice president or other designated sanctioning authority is final. The sanction will be imposed immediately by the designated administrative authority, who will continually monitor the circumstances to ensure a remedied situation.

6. If the respondent receives a sanction for the discrimination, he or she may appeal only the action's severity through the regular grievance process (See UPPS No. 04.04.41, Staff Employee Mediation and Grievance Policy or AA/PPS No. 04.02.32, Faculty Grievance Policy).

7. Texas State prohibits retaliation against a person who, in good faith, files a discrimination complaint, assists or participates in the investigation of a report of discrimination, or opposes discrimination.

7. ADMINISTRATIVE CLOSURE

The CDO may administratively close or dismiss a formal discrimination complaint under the following circumstances:

1. complainant lacks standing to file a complaint under this policy;

2. university cannot locate complainant;

3. complainant resigns from employment;

4. university approves complainant's request for case dismissal;

5. parties negotiate full remedy or settlement; or

6. for other reasons identified in applicable laws, regulations, or policies.

NOTE: Administrative closure does not prohibit issues raised in the complaint from being reviewed under Section 02.07.

8. PROCEDURES FOR PUBLICATION AND DISSEMINATION OF THIS POLICY

1. The CDO will provide training to all full-time regular employees through brochures, workshops, or other appropriate means, concerning:

1. definitions of discrimination;

2. examples of incidents of discrimination;

3. descriptions of how and when to report;

4. descriptions of available informal and formal resolution mechanisms; and

5. sources of support and information for complainants and respondents, as mandated by Texas Law.

Chapter 21, Texas Labor Code, requires all full-time employees to receive supplemental training biennially. While not required by law, part-time employees may attend the training. Following the training, an electronic record will be kept to verify completion.

2. Deans and heads of administrative units should discuss this policy and issues of discrimination at meetings of faculty, staff, graduate student employees, and teaching assistants at least once each year.

3. The CDO will discuss this policy in orientation programs for new faculty and staff employees within 30 calendar days of employment as mandated by Texas Law.

4. The CDO will provide training programs for persons who advise and counsel students or respond to crisis situations. These programs will include information about discrimination (e.g., definitions, informal counseling, and formal reporting procedures).

5. The dean of Students, the dean of the University College, and the dean of The Graduate College will collaborate with the Office of Equity and Inclusion to provide discrimination awareness and educational programs for students. While the university should direct this educational program toward new undergraduate and graduate students, it should not restrict it to them.

6. The university will summarize its policy on discrimination in the Faculty Handbook, the Staff Handbook, and the Student Handbook.

9. SANCTIONS

The university may impose the following sanctions for violation of this policy:

1. for faculty or staff - disciplinary action up to and including termination of employment;

2. for students - disciplinary action up to and including dismissal from the university; and

3. for contractors - cancellation of their contract with Texas State or other appropriate action.

10. CONFLICTS

If this policy conflicts with any policy, rule, or regulation at the university including procedures and policies found in the Faculty Handbook, the grievance and appeals policy in the Staff Handbook, or the Code of Student Conduct, this discrimination prohibition policy shall take precedence.

11. REVIEWERS OF THIS UPPS

Reviewers of this UPPS include the following:

Chief Diversity Officer and Director, Equity & Inclusion

October 1 E3Y

Chair, Staff Council

October 1 E3Y

Chair, Faculty Senate

October 1 E3Y

Associate Vice President for Student Affairs and Dean of Students

October 1 E3Y

Co-Chairs, President's Council For Women

October 1 E3Y

12. CERTIFICATION STATEMENT

This UPPS has been approved by the following individuals in their official capacities and represents Texas State policy and procedure from the date of this document until superseded.

Chief Diversity Officer and Director, Equity and Inclusion; senior reviewer of this UPPS Special Assistant to the President

President

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UPPS 04.04.46 - Prohibition of Discrimination

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UPPS No. 04.04.46Issue No. 9Effective Date: 6/17/2019Next Review Date: 10/01/2022 (E3Y)Sr. Reviewer: Chief Diversity Officer and Director, Equity and Inclusion POLICY STATEMENTS Texas State University is committed to an inclusive educational and work environment that provides equal opportunity and access to all qualified persons.

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Link: https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf

According to the American School Counselor Association ethical code A.9.d, counselors must, “report to parents/guardians and/or appropriate authorities when students disclose a perpetrated or a perceived threat to their physical or mental well-being” (2016, p. 4). Ethical code A.9.d may arise in a situation, when dealing with a cyberbullying ethical dilemma (ASCA, 2016). For example, if a student arrives to the counseling office and reports that he or she is being bullied on social media, a counselor will need to understand that they need to break confidentiality in order to inform the parent and appropriate administrator. The counselor also needs the have the knowledge of being able to explain confidentiality to students in clear and concise way. In North East Independent School District (NEISD), the administrator usually handles instances of student discipline, including cyberbullying on and off-campus (V. Perez, personal communication, February 25, 2020).

This ethical code connects to the topic of cyberbullying because it is a threat to a student’s physical and mental well-being and requires the counselor to take actionable steps to notify the parent(s) and administrative team (ASCA, 2016). Just recently, an NEISD high school student committed suicide in the weight room because he was being bullied online (Martinez, 2020). This ethical code has real life applications and you all can see that this issue is still a current event. As a prospective counselor, it is my duty to protect the safeguards of all students and by doing so, I can avoid a potential devastating situation.

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North East Independent School District

Friends of the Reagan High School student who committed suicide on campus during school hours last week are speaking out about bullying the teen faced before his death.

What's more, they're calling out district officials for not acknowledging it.

Following the death of Alonso Jones, a 16-year-old who died after being found unconscious in the school's weight room, a small group of students say Principal Brenda Shelton "didn't address any of the issues" or the concern for suicide awareness, KSAT reports.

One of those students, Juma Yacoub, considered Jones a friend. He said the teen was a "constant" target of bullying. Classmates targeted him for the clothes he wore and directed racial slurs toward him.

Yacoub said he even accompanied Jones to file a report about a bullying incident. When KSAT reached out to district officials, they said there was no history of Jones being bullied.

"We have absolutely no indication that Alonso was having issues with any other students," district spokesperson Aubrey Chancellor told KSAT. "When a report is filed regarding bullying, we investigate everyone. In this case though, there haven't been any."

Alyssa Jones, the teen's sister, said their mother is a teacher at the school. She said the school has an ongoing issue of racial bullying.

The district, however, maintains that isn't the case. North East ISD superintendent Sean Maika called the claims "misinformation" and denied that the district is sweeping them under the rug. However, in a letter sent to parents late last week, he wrote that the district began an investigation - one still ongoing - into Jones' death and the surrounding factors.

"While the investigation is ongoing - at this point, much of the information being discussed publicly is either incorrect, unsubstantiated or has not been provided to us," the letter read.

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Students Want NEISD to Acknowledge Bullying at Reagan High School Following Teen's Suicide on Campus

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click to enlarge North East Independent School District Friends of the Reagan High School student who committed suicide on campus during school hours last week are speaking out about bullying the teen faced before his death. What's more, they're calling out district officials for not acknowledging it.

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Link: http://www.thebullyproject.com/

The Bully Project is a great resource that I discovered during my interview with Veronica Perez (V. Perez, personal communication, February 25, 2020). This resource is approved and promoted by our regional educational service agency. The Bully Project organization is helpful for other school counselors because it offers numerous lessons and ideas for small group counseling. Furthermore, if a counselor wanted to teach a whole class, there are helpful videos and even a movie that can be shown to students. There are resources specifically created for students, teachers, parents, and even Spanish speakers. This resource informs me about cyberbullying by providing helpful strategies for addressing cyberbullying and working with students to express their feelings. After investigating the website, I now know that there are numerous intervention strategies available for counselors to utilize. Furthermore, this resource is beneficial for other prospective educational graduate students, such as administrators, because it explains the benefits of social-emotional learning.

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Padlet Slide #13-Bulleted list of Recommendations / Best Practices for Compliance

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Padlet Slide #13-Bulleted list of Recommendations / Best Practices for Compliance

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·       In Amy Lane’s article titled, “Taking the Lead on Cyberbullying: Why Schools Can and Should Protect Students Online,” she discusses how there are issues when disciplining students who have been involved in a cyberbullying case before or after school hours or off school property (2011). It is difficult to monitor every student’s action and take action once school ends. District policy should clearly state where and when they can explore cyberbullying cases involving a student.

·       The state must create additional funding measures to support their own educational agencies, in order to monitor cyberbullying investigations through hiring trained technology support specialists. With each passing generation, students are becoming extremely knowledge with posting online. Not all administrators and school districts have the necessary technology skills needed to conduct a thorough investigation. The technology department can purchase a program that identifies key words and phrases from online social media websites (Lane, 2011).

·       District bullying policy is clearly posted on every school’s website in common language that every individual can understand. The counseling department needs to post available resources and local organizations that provide cyberbullying assistance without the use of distracting legal and common educational terms.

·       Staff should receive a considerable amount of professional development in understanding Section 504 of the Rehabilitation Act of 1973. District representatives can provide information regarding common misunderstandings and help educators be observant of instances of bullying and discriminatory practices.

·       The principal of a school should enact clear expectations for administrator and counselor duties. Administrators need to handle discipline measures when it comes to bullying, where counselors should provide a “safe space” to meet student’s emotional and social needs (V. Perez, personal communication, February 25, 2020). Too often, counselors are faced with legal and liability issues because administrators do not know the current laws concerning bullying or cyberbullying (Tex. Ed. Code § 37.0832(c)(3); V. Perez, personal communication, February 25, 2020).

·       All school districts should be required to have a bullying checklist and flowchart readily available to quickly understand if the alleged bullying claim is superficial or not (The Bully Project, n.d.). Because administrators only have 30 days to finish a bullying investigation, discerning whether a claim is legitimate or not can help administrators and counselors avoid time consuming cases (V. Perez, personal communication, February 25, 2020). Using the example is attached below can assist education leaders in appropriate delegation of their time (Texas School Safety Center, 2017).

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References

American School Counselor Association. (2020). Legal and ethical faq. Retrieved from     https://www.schoolcounselor.org/school-counselors-members/legal-ethical/legal-ethical-       faq

American School Counselor Association. (2016). ASCA ethical standards for school

Counselors (Standard No. A.9.d) [PDF file]. Retrieved from https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf.

David’s Law, Tex. Ed. Code § 37.0832(c)(3)

Discrimination Prohibited, CFR 34 § 100.3

Doe by and Through Doe v. Boyertown Area School District, 897 F.3d 518 (2018).

Jacobson, L. (2017). Sexting incidents in schools present challenges for

administrators. Retrieved from https://www.educationdive.com/news/sexting-incidents-in-schools-present-challenges-for-administrators/503320/

Kowalski v. Berkley County Schools, 652 F.3d 565 (4th Cir. 2011).

Lane, D. (2011). Taking the lead on cyberbullying: Why schools can and should protect students    online. Iowa Law Review, 96(5), 1791–1811. Retrieved from             http://search.ebscohost.com.easydb.angelo.edu/login.aspx?direct=true&db=a9h&AN=64 442871&site=eds-live.

Martinez, S. (2020, February 17). Students want NEISD to acknowledge bullying at Reagan        High School following teen’s suicide on campus. SA Current. Retrieved from             https://www.sacurrent.com/the-daily/archives/2020/02/17/students-want-neisd-to-   acknowledge-bullying-at-reagan-high-school-following-teens-suicide-on-campus

Section 504 of the Rehabilitation Act of 1973, 29 USC Code § 794.

Texas School Safety Center. (2017). Bullying checklist [Online Image]. Texas State University.         Retrieved from https://locker.txssc.txstate.edu/c723f5d4e207da14eac6fea3dd02fc7b/Bullying-Checklist-       BW.pdf

Texas State University. (2019, June 7). University Policies, UPPS § .04.04.46(9). Retrieved from https://policies.txstate.edu/university-policies/04-04-46.html

Texas State University. (2019, June 7). University Policies, UPPS § 05.03. Retrieved from             https://policies.txstate.edu/university-policies/04-04-46.html

The Bully Project. (n.d.). Join the movement. Retrieved from http://www.thebullyproject.com/

Walsh, M. (2018). Courts take expansive view in transgender-rights cases. Education Week,          37(34), 26-27. Retrieved from https://www.edweek.org/ew/articles/2018/06/06/courts-                      take-expansive-view-in-transgender-rights-                    cases.html?r=1586118449&mkey=26921CAC-FC0B-4757-9B5E-2DA19ACB7456