Session 3: Equity Issues and School
Climate Policy
Randy Ross, M.S., M.A.
Senior Consultant
National School Climate Center
© 2015 NATIONAL
SCHOOL CLIMATE
CENTER
Goals
Review federal and state laws, along with relevant
case law, governing harassment of legally protected
classes that may result in a “hostile environment” or
negative school climate for some groups of students.
Discuss scenario(s) involving students’ use of

Confederate flags in school (or school-related)
context as an example of how to handle similar
situations.
 Discuss role of systemic policy, based on sound legal
considerations, that also guides educators to
instructional and relational aspects of school climate
improvement.

Review and Assign Scenarios to
Teams
Will be working through a multi-part scenario about
how to respond to (and prepare for) students using
the Confederate flag in school
 We want you to keep this in mind as we go through
our presentations
 Teams will be discussing the scenario (with assigned
incidents) after our presentations

 “In
the fall of 2015, some students attending a high
school in a rural area of Minnesota have either been
displaying the Confederate flag symbol or have
been “targeted” with it…
(a) Damian
Damian is a senior, a popular varsity football player.
He wears a belt with the buckle in the form of a
Confederate flag. While there are several boys of
color on his team and who dress with him in the locker
room, Damian proudly draws attention to his belt with
them around. These students stay away from Damian,
but do not feel they can report their concern to the
coach who seems to support him because of his
football prowess. Damian says wearing the belt
buckle is a symbol of pride in “his Southern heritage.”
He is from southern Minnesota.
(b) Joanna
Joanna, a freshman girl, goes to her locker one
morning and finds a bumper sticker plastered on the
door. It displays a Confederate flag and reads “The
South Shall Rise Again!” Joanna is white and is known
by other students to be friends with several Somali
girls and Latina girls. In class recently, Joanna spoke
up when President Obama was called the “N-word.”
Seeing the sticker, she feels frightened, but also angry
and determined to learn who did it.
(c) Larry
Larry, who is also white, and a junior, has just recently
gotten his driver’s license. He flies a large
Confederate flag from the back of the truck, which is
parked in the student parking lot. He has a student
parking permit. When Larry drives to and from
school, he occasionally shouts negative comments to
other students, including some students of color. He
does not do this on school grounds, but just off the
campus.
Background

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School of 500 students overwhelmingly white/Euro-American
About 10 percent are from Somali and Latino backgrounds
and also several students identify as African American.
Free/reduced lunch population is about 40 percent.
No staff of color in the high school.
Small group of white staff (teachers, counselors, support
staff) very upset about the Confederate flags and want the
administration to take some action.
 They remind administrators about the Charleston Massacre
a few months previously and the actions to remove the
Confederate flag from public buildings.
More Background

In the prior school year, several fights broke out between
Somali and white students.


Administrators could not definitively determine to what degree
these incidents indicated racial tension.
Current school year, staff members report hearing comments
from some students of all racial/ethnic backgrounds
suggesting there is such tension.

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Most teachers have avoided direct conversation with students,
and with each other, about the racial climate in the school.
Only the one small group of staff mentioned above has directly
urged administrators to take some kind of action.
Jessica Brennan, Minnesota
Department of Human Rights
Jess will discuss federal and state legal issues
impacting the scenario(s) just described, taking into
account the overall context/background information.
EQUITY ISSUES AND SCHOOL
CLIMATE POLICY
Balancing Student Free Speech with Freedom
from Discrimination in Minnesota Schools
Jessica Brennan, J.D.
*This presentation and the contents therein should not be interpreted as legal advice
10.29.2015
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11
Constitutional Free Speech
• 1st and 14th Amendments:
• Congress shall make no law . . . abridging the freedom of speech . .
• No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States . . .
• Protected speech: Verbal speech, the right not to speak,
and symbolic acts
• Unprotected Speech: Speech that incites imminent illegal
conduct, true threats or fighting words, obscenity,
defamation
• Government regulation of speech depends on where
the speech occurs and the type of speech
10.29.2015
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Constitutional Free Speech in Public Schools
• “It can hardly be argued that either students or
teachers shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate.”
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393
U.S. 503, 506 (1969).
• “On the other hand, the Court has repeatedly
emphasized the need for affirming the
comprehensive authority of the States and of school
officials, consistent with fundamental constitutional
safeguards, to prescribe and control conduct in the
schools.” Tinker, at 507.
10.29.2015
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Regulation of Speech in Public Schools: the
Tinker Standard
• Student speech is generally protected except
where it
• “’materially and substantially interfere[s] with the
requirements of appropriate discipline in the operation
of the school’”; or
• “collide[s] with the rights of others.”
See, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393
U.S. 503, 513, 89 S. Ct. 733, 740, 21 L. Ed. 2d 731
(1969); Henerey ex rel. Henerey v. City of St. Charles,
Sch. Dist., 200 F.3d 1128, 1132 (8th Cir. 1999).
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Regulation of Speech in Schools: Potential for
Disruption
• Potential Disruption:
• In evaluating student speech, schools are allowed to
“’forecast a disruption and take necessary precautions
before [a situation] escalates out of hand.” B.W.A. v.
Farmington R-7 Sch. Dist., 554 F.3d 734, 739 (8th Cir.
2009).
• Schools need not wait until disruption actually sets in
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Regulation of Speech in Schools: Invasion of
the Rights of Others
• Invasion of Rights of Others:
• Where student speech reaches the threshold of
actionable harassment, that speech clearly invades the
rights of others under the Tinker standard.
• See e.g., Harper v. Poway Unified Sch. Dist., 445 F.3d
1166, 1171 (9th Cir. 2006).
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Invasion of the Rights of Others: Illegal
Discrimination/Harassment
• Federal Law:
• Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of
1972, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with
Disabilities Act of 1990
• State Law:
• The Minnesota Human Rights Act
• Forms of Discrimination in Schools:
• Adverse Action
• Disparate Impact
• Hostile Environment (aka harassment)
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Hostile Environment/Harassment
• Harassment occurs where conduct based on a
“protected class” is:
• severe, pervasive and objectively offensive
• such that it detracts from a student’s educational
experience in a way that denies the student equal
access to the opportunities and resources of the
educational institution.
• “Bullying,” as defined under Minn. Stat. 121A.031, may
rise to the level of illegal harassment where based on a
protected class.
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Hostile Environment/Harassment
• There are many factors that are relevant in determining
whether conduct reaches the level of harassment as a form of
illegal discrimination, including:
• Age of the victim;
• Age of the harasser;
• Context of the situation;
• The protected class at issue;
• The nature of the conduct;
• Frequency of conduct; and
• The response of the school to the behavior.
• Schools have a legal obligation to respond promptly and
effectively to harassing behaviors between students in order to
avoid liability under the previously-mentioned laws.
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Regulation of Speech in Schools
• B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (8th
Cir. 2009):
• “Schools may not suppress speech merely ‘to avoid the discomfort
and unpleasantness that always accompany an unpopular
viewpoint.’”
• Rather, school administrators can “circumscribe certain student
speech if [the] ban would be necessary to avoid substantial
disruptions.”
10.29.2015
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Regulation of Speech in Schools
• B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (8th
Cir. 2009):
• Here, the court upholds the school district’s decision to
disallow displays of the Confederate flag where, among
other things:
• Multiple racial slurs were made in and out of the school;
• A white student urinated on a black student;
• Threats and an actual fight broke out at a black student’s home
• Students displayed racially offensive symbols at school in
notebooks/on chalkboards/etc;
• Several black students withdrew from the school in light of these,
and other incidents
10.29.2015
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When Speech Violates the Tinker Standards –
Considerations for School Officials
• What’s the makeup of the student body/larger community?
• Have there been any past incidents/tension at
school/within the community? If so, how recently?
• Is there any current tension within the student
body/community?
• What is the social media presence around the potential
conflict in that community – are students and others in the
community involved in hate sites, posting to them on
Facebook, etc.?
• What are students/teachers/families saying?
• Any concerns reported by students?
10.29.2015
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When Speech Violates the Tinker Standards –
Considerations for School Officials, cont.
• What type of speech is of concern?
• How is it related to the perceived potential for
conflict?
• Timing of the speech?
• Location of the speech?
• Prevalence of the speech?
• How is it being communicated? Directly/indirectly?
• Are there any power imbalance implications?
JESSICA BRENNAN, J.D.
LEGAL ANALYST
MINNESOTA DEPARTMENT OF HUMAN RIGHTS
651.539.1112 (Office) | 1.800.657.3704 (Toll Free)
[email protected]
School Climate Approach to
Confederate Flag Scenarios
Seek Justice, Avoid Blame
“When an offender or group of offenders
is identified, there is a desire among some
people to focus solely on discipline and
punishment. Appropriate action should be
taken against any offender….
School Climate Approach to Scenarios
Seek Justice, Avoid Blame
Whether the incident was violent or nonviolent, one of
your most important tasks as an administrator is to focus
on restoration and not merely discipline. Bias-based
incidents are ripe occasions for education. Fear and
ignorance often are at least partially to blame for this
type of incident. This crisis is an opportunity to teach
about culture and race, to help guide students to a deeper
understanding that our diversity is a powerful force for
good, binding us by our common humanity.”
Teaching Tolerance, Responding to Hate and Bias at School, p. 21
The Power of Policy

Addressing bullying, harassment and biasmotivated incidents in policies that are, as with all
policies:

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Reviewed by the school and community at large
Well-publicized throughout the whole school community:
to students, staff, families, law enforcement, community
organizations, etc.
Fairly enforced, so some offenders are not treated
more harshly/leniently than others – disparity
contributes to a divided, unsafe school community
Use a Community Approach

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Vital to support both victims and the targeted community
Create alliances with families and community organizations
that may enable more creative consequences, such as
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Restorative Practices
Community Service
Rehabilitation of crime offenders (involve law enforcement)
With collaborative policy development, these alliances are
a natural outgrowth
Include specific practices in policies and/or clearly identify
that a community approach is valued/necessary
Our Three-Part School Climate Model
Instructional
Systemic
(Curriculum, SEL,
Speakers, Field
Trips, etc.)
(Policies,
Assessment,
Procedures, etc.)
Relational
(Dialogue Groups,
Restorative
Practices, etc.)
School
Climate
Some Instructional Approaches

Culturally Responsive Education (CRE)
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Character Education and Social Emotional Learning (SEL)
Encourage current national and local dynamics/incidents to
be discussed, such as:

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Important for ALL students, not just students of color and those from
different cultural backgrounds
Literacy-based model/materials at perspectives.tolerance.org
Charleston Massacre, Confederate Flags, Black Lives Matter, etc.
Using especially Social Studies/History and Language Arts/
English classes to delve into historical facts and controversies
Speakers and films that support a deeper understanding of
the actual history behind the Confederate flag and other
symbols
Some Relational Approaches
Restorative Practices at its heart a Relational approach
 Everyday Democracy and Community Dialogues
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Provides “discussion guides, how-to handbooks, trainings,
and other resources to help you create a more democratic
and inclusive community”
Visit the Everyday-democracy.org website
Email contacts:
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Rebecca Reyes (MN) [email protected]
Matthew Walker (CT) [email protected]
Guide to help student engage in conversations about issues
of racism on Everyday Democracy website
Team Discussions

With your team, choose the questions on which you
would like to focus now for the time we have left.

Questions are on page two of handout called
“Confederate Flags in School: Scenarios with School
Climate Implications (Session Three)”
Write down one-two major “take-aways” from your
discussion that you can share with the full group.
 Consider using these questions for discussion at an
administrator or staff meeting in your district.

Randy Ross, M.S., M.A.
Senior Consultant
National School Climate Center
Email: [email protected]
Direct Line: 413.320.1806
© 2015 NATIONAL SCHOOL CLIMATE CENTER