Bor Yang (Executive Director, Vermont Human Rights Commission) returned to testify to the Senate Education Committee on Thursday regarding the draft amendment. She wanted to respond to concerns that Gulick and perhaps Campion had surrounding “unintended consequences resulting in more suspensions and expulsions of kids.” She noted that peer-to-peer harassment is disproportionately aimed at disabled, BIPOC, LGBTQ students. Additionally, disciplinary actions tend to fall more on these groups. Why is that, she asked rhetorically.
NOTE: Shouldn’t this be concerning if marginalized people tend to be penalized more for harassment than others? Would this mean that the state is potentially perpetuating discrimination by lowering the threshold for behavior in this area?
Yang continued that if the Committee wanted to address the “school to prison” pipeline, they should “introduce a bill that limits or eliminates suspensions and expulsions, referrals to police for behavioral issues, that limits police presence in schools.” She believes that lowering the harassment standard will address “the pipeline.”
Comparing the proposed standard to workplace anti-discrimination provisions, she claimed that this proposal was not “a Strict Liability standard, despite some of the testimony that has suggested otherwise.”
NOTE: This comment was clearly directed at Heather Lynn, who testified the prior day.
She asserted that schools cannot be sued unless the student can prove the harassment is related to their protected class, they put the school on notice, and the school failed to act. She claimed this was a “specific legal test” in contrast to the testimony from Lynn.
Yang also urged the Committee not to wait to adopt stronger rules, saying that they “already knew” what the Title IX rules (due in May) were going to be. The proposed rules are “90% likely to be the final rules,” she stated.
Continuing on, she reiterated that this amendment was necessary to address an “insurmountable legal standard,” in current statute (the “severe or pervasive” standard). During discussion of this point, it became apparent that Yang was measuring success by the number of successful appeals to the courts as opposed to resolutions reached by school districts.
“In 2023 the Federal government is finally catching up with Vermont,” on discrimination protections, she claimed. She did not believe that waiting for “the Federal government on civil rights issues,” was prudent.
NOTE: The Agency of Education is expected to rewrite their model policies this summer in response to the Title IX changes.
She closed by telling the Committee that “undoubtedly” the choice to move forward on this effort was theirs, but “choosing not to move forward, choosing to wait is still making a choice… To me there is only one right choice, and we have to choose kids every single time.”
Senator Gulick voiced that she is “still concerned” about her district (Burlington) and “unintended consequences,” and that Lynn’s testimony the previous day gave her “a whole new existential angst.” She continued that school district staff is “maxed out,” and administrators have quit because of Title IX demands.
“Here we are putting yet another burden on our schools that are already stressed out to the max to help kids… but are we not undermining the very institution that is there to lift them up by putting this one more layer on top of everything else right now.”
Campion agreed somewhat, wondering what the harm would be if they proceeded. “I am afraid the harm is significant,” he stated. He added that, out of respect for Gulick, he didn’t want to keep calling this a “crisis” without more testimony and evidence, noting that different schools are in different situations.
Yang responded they “need to hear from those most harmed” by the existing policies, pointing to NAACP and others who are not bound by confidentiality.
Further discussion followed as the Committee clarified that a single event would trigger the new definition of harassment and a school would be required to conduct a full background investment. As Yang put it, if we learn of one event, there are probably more “beneath the surface.” Gulick was concerned that this also introduces a new standard for school staff where they can be prosecuted for failing to report harassment (one event) the likelihood of that to create “more litigious environment in schools.”
Campion complimented her on her testimony, saying “well done, whether we agree or disagree, well done.” He indicated that the Committee would come back later in the week to “decide which way we go on this.”
