We all know student misbehavior exists on a spectrum of seriousness, ranging from mild teasing to more serious acts of bullying or harassment, all the way to physical and sexual violence and the use of deadly weapons. Teachers and administrators can handle most student misconduct without referring to the law. This is a good thing: Were every student misdeed to trigger a legally prescribed response, school operations would surely grind to a halt. Also, normal misbehavior could become criminalized, and even more students of color would be disproportionately pushed into the criminal justice system.
For behavior impacting student well-being and safety, however, an array of federal, state, and local laws and policies comes into play. This legal apparatus is confusing and ever-changing, which is challenging for school personnel.
Multiple sources of law
Federal, state, and municipal laws (including school district policies) combine to form an intricate and sometimes inconsistent patchwork of protocols that schools must follow.
Federal law shapes, but doesn’t specifically address, most kinds of student misconduct. One of the few exceptions is Title IX, a federal law that prohibits sex discrimination in schools that receive federal funding. In Davis v. Monroe County Board of Education (U.S. Sup. Ct., 1999), the U.S. Supreme Court stated that Title IX requires schools to respond appropriately to sexual misconduct that is so “severe, pervasive, and objectively offensive” that it denies its victims equal access to education. The Davis case has been cited in more than 2,000 subsequent court decisions and has spurred additional laws, regulations, and policy guidance at all levels of government.
Historically, the U.S. Department of Education’s interpretation of Title IX has been more expansive than the courts’ — and new regulations are on the way (U.S. Department of Education, 2022). However, even with that more expansive interpretation, Title IX doesn’t apply to most student acts, and the bar for Title IX compliance is actually quite low: The law doesn’t require anything approximating an optimal response to most sexual misconduct, and it doesn’t speak at all to acts that aren’t sexual in nature or motivated by the victim’s sex. (Even so, hundreds of schools manage to run into Title IX problems every year.)
State laws, though, are sometimes broader and stricter. For example, New Jersey state law broadly prohibits acts of “harassment, intimidation or bullying,” including a single gesture or text, that are motivated by any distinguishing characteristic of students, including their race, sex, sexual orientation, or ability (NJ Rev Stat § 18A:37-14[2021]). But other states are far more lenient: Arizona, for example, leaves the job of defining harassment, intimidation, or bullying to school districts and does not include protections for any specific groups of students (AZ Rev Stat § 15-341 [2021]). As it turns out, which state and district you live in determines your level of protection at school.
For most school personnel, questions of how to respond to student misconduct begin not at the federal or state level but at the local level. While local (typically, school district) policies often reflect the requirements of their state, they sometimes go beyond state law in important ways. New Jersey, for example, only requires schools to investigate and respond appropriately to acts that disrupt or interfere with school operations or the rights and well-being of students, but school districts have discretion to establish broader or more stringent protections. The South Orange-Maplewood school district did just that by adopting detailed guidance and options regarding expectations, remedial measures, and supportive interventions in response to incidents of bullying or harassment.
For most school personnel, questions of how to respond to student misconduct begin not at the federal or state level but at the local level.
Similarly, the California legislature has issued unusually detailed requirements regarding particular forms of social aggression, including “cyber sexual bullying” (involving electronically sharing nude or sexually explicit photographs or creating a false profile or “burn page” of another student) and “hazing” (involving risky or degrading initiations into a student organization). But the Los Angeles Unified School District (LAUSD) policy goes further, distinguishing student-on-student bullying from mere “teasing” or “conflict” and providing this additional clarification:
Bullying is both underreported and over-identified. Actual incidents of bullying are likely underreported. On the other hand, the term “bullying” has traditionally been over applied to a wide breadth of interactions that may or may not meet the legal requirements for identification as bullying. (Escudero & Aguilar, 2022)
When it comes to school safety, state law draws the contours of schools’ obligations, but local policy adds useful color and texture.
Legal siloes
Another befuddling aspect of the law is that there tend to be separate rules applying to safety-related incidents, depending on who is being harmed, on what basis, or to what extent. This has led to dissimilar rules for similar situations — even within the same category of misconduct. For example, Title IX regulations issued by the Donald Trump administration (still in effect as of this writing) require different sets of procedures for different acts of sexual misconduct, depending on whether they rise to the level of the Title IX definition of sexual harassment. This has forced both universities and school districts to devise separate, bifurcated policies for adjudicating incidents that may be hardly distinguishable from one another.
The copious regulations and court cases related to sexual harassment also has created a schism between sexual and non-sexual harassment. Whereas schools must follow a multi-layered set of federal, state, and/or local laws and policies when responding to sexual misconduct, they might take a very different approach to (and possibly deprioritize) equally serious misconduct in the form of, say, racial harassment because of the comparatively small number of regulations or cases governing such situations. This schism has been somewhat ameliorated by some courts, which have applied legal standards from Title IX and Davis to non-Title IX situations. For example, Zeno v. Pine Plains Central School District (2d Cir. 2012) applied Davis to a racial harassment case, and Lance v. Lewisville Independent School District (5th Cir. 2014) applied Davis to a case involving harassment of a student with disabilities.
Legal gray areas
One of the most confounding challenges for school officials is how to distinguish between constitutionally protected speech and unprotected threats or harassment. To make matters worse, ensuring student safety today requires that school officials respond appropriately not only to speech occurring on-campus but also, increasingly, off-campus as well. This development is perhaps inevitable given the rise of the internet and the ubiquity of smartphones and social media (Kim, 2021b).
The challenge for school officials was illuminated in Mahanoy Area School District v. B.L. (U.S. Sup. Ct., 2021), in which the U.S. Supreme Court affirmed the First Amendment right of B.L., a public high school student, to make profanity-laced comments about her school cheerleading program on social media during her personal, off-campus time. In a concurring opinion, Justice Samuel Alito noted the legal uncertainty involving some kinds of off-campus speech, including “perceived threats to school administrators, teachers, other staff members, or students”; “speech that criticizes or derides school administrators, teachers, or other staff members”; and “criticism or hurtful remarks about other students.”
One of the most confounding challenges for school officials is how to distinguish between constitutionally protected speech and unprotected threats or harassment.
None of the plaintiff B.L.’s speech in Mahanoy fell into these gray areas; f-bombs aside, she essentially expressed disdain for a school extracurricular program. But what if she’d called her cheerleading coach “incompetent”? What if she’d posted to her friends on social media that she was so mad that she could “kill” the coach or “blow up” the school? Is she a threat to safety, or is she exercising her right to blow off steam during her down time?
In the age of mass school shootings, schools could be forgiven for erring on the side of caution in disciplining students for making aggressive or threatening statements, but they also can overreact. A Louisiana high school student faced expulsion and had his home searched by law enforcement for joking in a math class that the square root symbol looks like a gun (Shackford, 2018). Because the law hasn’t yet fully caught up to the mode and manner of student online speech today, school officials may need to rely as much on their own judgment and common sense as on the law itself.
Legal gauntlets
Finally, schools run a narrow legal gauntlet when it comes to disciplining students for misbehavior. First, schools must respond appropriately to situations involving students who pose a health or safety risk for others. If Student A harasses Student B at school because Student B is LGBTQ+, for example, and the school knows about it yet fails to investigate and, take appropriate disciplinary measures, then the school faces potential legal liability under numerous laws.
Yet schools also face potential legal problems depending on how or whom they discipline. Although federal law doesn’t impose strict due process requirements on public schools before disciplining students (see Goss v. Lopez, Sup. Ct., 1975), some states and local districts have implemented more elaborate notice and hearing procedures. And under current and pending Office for Civil Rights policies, schools that disproportionately discipline students of color or students with disabilities may encounter legal problems unless they can point to nondiscriminatory reasons for the differential treatment.
How lawmakers can help
One of the most fundamental tasks in running public schools is keeping those inside safe. A labyrinth of legal rules and policies has been erected to help. But it’s hard for school district lawyers, much less teachers and administrators, to keep up with the law. It’s also hard for the law to cover all the manifestations of student behavior; it remains an imperfect and often unclear roadmap for addressing school safety. Here’s how lawmakers could help:
- First, do no harm. The law should create, not jeopardize, safety. It should not be used to handcuff educators; stifle speech; or foster ignorance, hostility, or fear toward minority populations. (See Kim, 2021a, 2022a, 2022b)
- The law should seek to provide greater coverage, clarity, and harmony, whether through statutory or regulatory amendment, policy guidance, or judicial opinions. Although legal rights spring from different sources, lawmakers should ensure that school communities understand the overall design and framework governing school safety and that all students are included and protected under that framework.
- Because most student misconduct is addressed informally, lawmakers should seek to increase district- and school-level training and programs to foster appropriate adult and peer-based education, interventions and responses, mental health counseling, and parental and community engagement.
- Finally, lawmakers should ensure that districts keep accurate data and records on school safety incidents and have the tools and bandwidth to evaluate them to increase school safety.
In the end, the law is most useful in articulating procedures and crafting a remedy when student safety has been seriously compromised. It is less useful in lower-stakes situations. And it is even less useful in helping schools foster strong feelings of support, respect, and belonging among students. It’s up to schools to start from where the law ends — to go beyond what’s acceptable from a legal perspective and reach for what’s optimal, pedagogically, developmentally, and morally.
References
Escudero, P.V. & Aguilar, A. (2022, March 11). Bullying and hazing policy (student-to-student) (Policy Bulletin). Los Angeles Unified School District.
Kim, R. (2021a). ‘Anti-critical race theory’ laws and the assault on pedagogy. Phi Delta Kappan, 103 (1), 64-65.
Kim, R. (2021b). Regulating student speech in the Snapchat era. Phi Delta Kappan, 102 (6), 62-63.
Kim, R. (2022a). Banning books: Unlawful censorship, or within a school’s discretion? Phi Delta Kappan, 103 (7), 62-64.
Kim, R. (2022b). Wanted: American educator. Phi Delta Kappan, 103 (7), 64-65.
Shackford, S. (2018, Feb. 23). A high school student faces expulsion for noticing the square root symbol looks like a gun. Reason.
U.S. Department of Education. (2022, June 22). The U.S. Department of Education releases proposed changes to Title IX regulations, invites public comment [Press release].
This article appears in the December 2022/January 2023 issue of Kappan, Vol. 104, No. 4, pp. 57-59.
ABOUT THE AUTHOR
Robert Kim
Robert Kim is the executive director of the Education Law Center, based in Newark, NJ. His most recent book is Education and the Law, 6th ed.
