Nightmare on Your Street? How to Respond to Controversial Costumes in School

You’ve probably heard that Megyn Kelly is out at NBC for making comments about white people wearing blackface at Halloween. And just a few days ago, a first grade Iowa teacher, Megan Luloff, came under investigation from her school district for wearing blackface at a Halloween party. What should you do if someone takes offense at a costume in your school environment this Halloween season?

• You could always ban costumes; it’s certainly the safest bet (though you may be asked if you’re dressing up as Scrooge!). A school district in Philadelphia allows costumes but bans masks and costume makeup, which is an interesting tactic. But even if you do this, you still run the risk that someone will interpret a costume as racially insensitive in your school community, even if it’s not at a school-related event or activity (thanks, Snapchat!). So what do you do?
• Be proactive. Talking to students and staff about race sensitivity and nondiscrimination rules through interactive, thoughtful training throughout the year is great protective medicine. We attorneys love conducting these training because it’s much more fun to come out to talk to your staff about bloopers in other schools than to defend against a complaint that one was made in yours. Training should address issues such as cultural sensitivity throughout the year and should rely on the most up-to-date standards from federal and state regulators.
• Make sure to use the correct policy or procedure in your school and building if a complaint regarding racial harassment is raised. The most conservative approach is to use your nondiscrimination policies and procedures whenever a protected status is implicated, no matter how big or small. So if someone complains about insensitivity or harassment based on race, you use your district’s race nondiscrimination policy. That means you don’t handle the complaint like you would a typical bullying complaint at the building level. If it’s sex or gender, you use your district’s Title IX policy. If it’s a disability, you use your district’s disability nondiscrimination policy. Although in a perfect world, your school would simply have one policy or procedure to be used any time someone reports discrimination based on a protected status like race, disability, sex, or age, that’s not typically the case. So it’s especially important to make sure you use the right one for the issue before you.
• Respond as needed on an individual and school-wide level. Determine what, if any, impact the conduct is having on members of your school community and their ability to access education. If you identify a problem, take steps to fix it, and by all means, if it happens again, change your approach. And remember, one instance of harassing behavior, if serious enough, can justify taking a broader response beyond the discipline of the offender. If you have questions about the scope of an investigation, don’t be afraid to ask for help (including from your FR attorney).