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Bullying and School Liability: What Administrators Should Know

Can schools be held legally accountable for student bullying? If so, under what circumstances?

These tough questions have emerged alongside increased awareness of the detrimental effects of bullying. While almost all states have passed new, or strengthened existing, anti-bullying laws, many districts, in the face of rising family legal action concerning bullying, remain unclear regarding legally compliant policies and best practices.

EducationWorld offers the following primer for school leaders concerned about civil liability for bullying and harassment. Schools are encouraged to consult their districts’ legal counsel for information and advice regarding applicable state and federal laws.

Bullying vs. harassment

First, it’s important to note the difference between bullying and legally defined harassment. While we can all agree that any form of bullying is undesirable in a school setting, harassment occurs only when students are bullied based on personal characteristics that trigger special federal protection—namely gender, race or disability. Bullying that constitutes harassment is specifically prohibited by federal law.

It is therefore harassment-related student bullying that when left unchecked by school officials, poses the greatest legal risk. In the Leadership Insider article “School Liability for Bullying & Harassment,” article authors Seamus Boyce and Andrew Manna explain that if schools face the following five circumstances, they are legally liable for peer harassment:

  1. The bullied student is a member of a “protected class” defined under federal civil rights laws—these classes include gender, race and disability. (While his/her sexual orientation would not technically place a student in a protected class, note that in some court cases, students who were bullied for “nonconformity to gender stereotypes” have successfully claimed sex-based harassment.)
  2. The peer harassment was based on the students’ membership in a protected class (e.g., a student was repeatedly mocked for having a developmental disability).
  3. The harassment was severe, pervasive and offensive (this standard takes into account both severity and frequency; if severe, even a one-time incident can qualify).
  4. The school (an official with authority to act) had knowledge of the harassment.
  5. The school was deliberately indifferent to the harassment.

In addition, even when a school did not have knowledge of student harassment, a plaintiff might claim school negligence under state law (i.e., failing to train staff or supervise students).

Guidance from the federal Office for Civil Rights can help administrators understand their obligations regarding student harassment.

Administrators should also be aware that it’s not only the target of bullying or harassment who might bring legal action. In some cases, the student who perpetrated the incident might claim that punishment for, or silencing of, his/her speech constitutes a violation of the First Amendment.

In the Leadership Insider article “Free to Be Mean?” author Karla Schultz reminds us: The U.S. Supreme Court acknowledges that the First Amendment protects even objectionable speech that could constitute legally defined harassment. For example, in some cases, courts have sided with students when their anti-gay speech was punished or prevented by schools.

Educators can further explore the issue of harassment and free speech with this guide: Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools.

So what’s a school to do?

Keeping in mind the above five-point “test” concerning school liability for peer harassment, along with the issue of free speech, here are some recommended takeaways for school leaders.

Schools are likely to avoid legal problems if they:

  1. Take reports of bullying and harassment seriously, investigate them, promptly enact safety plans for student targets and monitor these plans to ensure effectiveness;
  2. Consider whether harassment of students with disabilities may be affecting their right to obtain an appropriate education. If it’s a possibility, administrators need to be especially swift and thorough in terms of enacting safety plans.
  3. Ensure that every aspect of the harassment situation—from the initial report to the investigation to the administrator response—is well documented;
  4. Implement (and document implementation of) evidence-based bullying prevention strategies such as training of all teaching and non-teaching staff;
  5. Train students (who are more likely than adults to directly witness bullying) to serve as teachers’ and administrators’ supplemental “eyes and ears;” and
  6. Work hard to create a school climate incompatible with bullying, so that everyone in the building takes notice and knows what to do when bullying occurs.

Where free speech is concerned:

  1. Examine your school and district’s anti-bullying policy closely—could it be considered overzealous in terms of its prohibitions, to the point of infringing upon free speech?
  2. When a student directs objectionable speech against one or more targeted students, determine which of these categories best describes the speech: (1) speech was obscene, threatening, drug-promoting, etc. or (2) the offensiveness of the speech was more debatable. Your decision to discipline a student has greater legal backing in terms of the first kind of speech (especially when the speech was facilitated by school equipment or was part of a school assignment). You will, however, want to discipline with greater caution when the offensiveness of student speech is more subjective, when the speech occurs off-campus (including online), and/or when the speech consists of a message appearing on (or implied by) student clothing or accessories.

    (Don't miss the EducationWorld lesson Student Clothing and the First Amendment. Also, for more information on cyber-bullying, see Cyber-Bullying and the Law: What Should School Leaders Know?)
  3. Avoid unreasonably harsh discipline of students who have perpetrated incidents, and ensure that what’s being punished or halted is the disruption or harm to the school community, rather than the student’s speech per se.
  4. Remembering that discipline, by itself, does little to stop bullying, put more energy into re-educating, helping develop empathy for the target and providing constructive outlets for the bullying student to experience mastery/control and gain social status. Concerned that the target will want to see harsh punishment for the bullying student? If you make it clear that you’re working to prevent future bullying and harassment, this will ultimately be more satisfying to the target.

For more detailed information about best practices for bullying prevention and response, see the EducationWorld article Join the Discussion on Bullying. You may also want to explore our anti-bullying lessons and articles page.

Article by Celine Provini, EducationWorld Editor
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