Courts join crackdown on school bullies 

Bullying has proven resistant to school efforts to end the practice;  now, the courts are joining the fight. 

 

Despite extensive efforts of educators, parents, lawmakers, and society at large, bullying remains a stubborn barnacle clinging to schools.  

Stories abound about students at all grade levels engaging in severe harassing behavior that prompts suicides or inflicts lasting physical or emotional scars. Both the historic face-to-face bullying and the newer cyber variety are relentlessly prevalent.  

The courts are taking a new attitude. It might be paraphrased like this: If you can’t fix this problem, we will. Increasingly, legal opinions are holding schools, students, or parents legally responsible when peer-to-peer bullying gets extreme. Sure, school districts still win most of the time. But the trend is clear that state and federal judges are impatient with the pace of change — and are handing victories to plaintiffs. 

Blame the school district 

The Kansas Court of Appeals ruled in November 2014 that a school district could not use a federal law to escape potential liability for constant bullying. 

In fall 2011, Austin Sanchez was a new 7th grader at Lansing Middle School in Unified School District No. 469. The school had a zero-tolerance bullying policy. A few weeks after school started, C.S. began pushing Austin and making fun of his height and his lazy eye. On another occasion, C.S. pulled a knife and threatened to stab Austin. In addition, as many as 10 times, C.S. said loudly in the school’s common area that he was going to “kick Austin’s a—.”  

Austin told his mother. She called police and went to school to see the principal. C.S. received two days of out-of-school suspension, one day of in-school suspension, and was told to stay away from Austin. C.S. continued his abusive behavior and was joined by another student. 

Austin’s mother sued the district for negligent supervision, claiming the district failed to provide Austin with a safe learning environment and was guilty of “failing to reasonably and promptly respond to notice of the ongoing bullying . . . . ” The district sought to dismiss the case, citing immunity under the federal Paul D. Coverdell Teacher Protection Act of 2011. The law grants immunity to principals and teachers in certain circumstances. 

In Sanchez v. Unified District No. 469, the Court of Appeals rebuffed the school district’s attempt to extract itself from the bullying lawsuit. The court said the Coverdell Act “plainly and unambiguously” states that it provides immunity to individuals, not to entities. With that, the court reversed the lower court ruling and referred the case back down for further proceedings.  

Elsewhere, the New York City Public School District must pay the private school tuition of a 12-year-old autistic student, L.K., who experienced almost daily bullying. The girl was ridiculed, pushed, tripped, chased with ketchup she was told was blood, and laughed at when she tried to speak in class. Her parents reported the maltreatment to teachers and administrators in person and in writing. 

Increasingly, legal opinions are holding schools, students, or parents legally responsible when peer-to-peer bullying gets extreme. 

After school officials didn’t respond and later refused to discuss the matter, the parents moved L.K. to a private school. The Individuals with Disabilities Education Act (IDEA) allows parents to “unilaterally place” their student in a private school and later seek financial reimbursement when the public school offering is inappropriate. 

The 2014 opinion by the U.S. District Court for the Eastern District of New York said, “Where there is a legitimate concern that bullying will severely restrict a disabled student’s educational opportunities, as a matter of law, the IEP team is required to consider evidence of bullying in developing an appropriate [IEP].” According to The New York Post, the district must pay L.K.’s parents $40,000 for her year at the private school. Special education lawyers say the decision marks a significant precedent and could make the school system liable for millions of dollars in bullying-related cases. 

Also on point was the August 2013 U.S. Department of Education’s Office of Special Education and Rehabilitative Services “Dear Colleague” guidance letter to school districts on the connection between special education students and bullying. The letter said in part, “Bullying of any student by another student, for any reason, cannot be tolerated in our schools. Bullying is no longer dismissed as an ordinary part of growing up, and every effort should be made to structure environments and provide supports to students and staff so that bullying does not occur.” 

Blame the students 

A New Jersey Superior Court judge ruled that two school districts facing a lawsuit can rightfully pursue more than a dozen students to share legal responsibility for bullying. The Flemington-Raritan Board of Education and the Hunterdon Central Regional High School and Board of Education were sued for allegedly failing to intervene when V.B. was bullied for years about his weight.  

In the March 12, 2013, opinion, Judge Yolanda Ciccone wrote that if liability for bullying is proved, then blame is most properly allocated between the 13 accused bullies, their parents, and the school system. The victim said from 4th grade through high school he was called “fat,”  “chubby,” and had his pants pulled down. The student and his mother repeatedly complained to the principal, vice principal, and guidance counselor.  

Blame the parents 

In one of the most high-profile tragedies from social media bullying, a 12-year-old Florida girl took her life by jumping from a tower at an abandoned concrete plant. After the 2013 incident, a legal advocacy group called Justice Outreach drafted proposed legislation to hold parents criminally liable for their child’s cyberbullying. The “Bullying, Cyberbullying, and Harassment — Parental Responsibility” bill died in committee during the 2013 Florida state legislative session, but advocates vow to fight on. If passed, the get-tough law would be the first of its kind in the nation.  

An intractable problem 

Although the problem of bullying remains intractable, it is not for lack of effort. Policy makers write prohibitions. Legislators develop tough laws. Parents speak to their children. But still it rises.  

Some school districts are exploring innovative solutions. In Utah’s Ogden and Weber school districts, educators and the police department created a text tip line for students to anonymously report bullying and other harmful activities. The program is called Friends, and text messages are forwarded to police, school counselors, and administrators.  

Bullying has also been a target of national attention. The U.S. Department of Health and Human Services developed a free prevent bullying app called KnowBullying that can be downloaded from the Substance Abuse and Mental Health Services Administration (SAMHSA) web site to mobile devices. In August 2014, the U.S. Department of Education held the fourth Annual Federal Bullying Prevention Summit. The event featured a new video, “Bullying, Harassment, & Civil Rights: An Overview of School Districts’ Federal Obligation to Respond to Harassment.” It was developed collaboratively by the U.S. Departments of Education and Justice, and SAMHSA of the Department of Health and Human Services. 

Ultimately, the lesson is that school officials must be relentless in preventing bullying beforehand as well as responding decisively afterward. Admittedly, bullying conflicts are complex. Courts are a poor solution to an on-the-ground problem and should therefore exercise restraint in assigning backward-looking blame to parents, schools, or students and assessing penalties or jail time. Equally true is that laws, policies, regulations, and rules require deliberation, moderation, and flexibility, while still protecting vulnerable children from being subjected to life-altering abuse.   

  

Citation: Darden, E.C. (2015). Ed law: Courts join crackdown on school bullies. Phi Delta Kappan, 96 (7), 76-77.