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Bullying: Legal Policy Considerations from a National Perspective Thomas Hutton NSBA Senior Staff Attorney Taking A

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Bullying: Legal Policy Considerations from a National Perspective Thomas Hutton NSBA Senior Staff Attorney Taking A

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    1. Bullying: Legal & Policy Considerations from a National Perspective Thomas Hutton NSBA Senior Staff Attorney Taking A Stand: Preventing Bullying in Schools April 22, 2009

    2. U.S. Secret Service report, 2002: Bullying’s role in many school shootings. BUT new report casting doubt on that and saying perpetrators all were disturbed? Bottom line: behavioral manifestations of disturbances could invite bullying.U.S. Secret Service report, 2002: Bullying’s role in many school shootings. BUT new report casting doubt on that and saying perpetrators all were disturbed? Bottom line: behavioral manifestations of disturbances could invite bullying.

    3. Your own experiences?

    4. Today’s Road Map Legal overview Legislative responses Sexual orientation Bullying and free speech Cyberbullying Practical points, governance aspects Additional resources Discussion Some parting thoughts on school culture

    5. Harassment or bullying? Law’s focus has been on harassment, based on protected characteristics (race, religion, gender, etc.) Bullying increasingly defined in state anti-bullying statutes Bottom line: For schools, lines can be fuzzy and may not be worth much energy when it comes to prevention

    6. Mentor, Ohio ABC News report, April 2, 2009 “Bullicide” case Student called gay, fag, queer, etc. In front of teacher Complained: Teacher moved bullies Parents suing for preventive program Say Olweus not for high school 2007: Three suicides by bright “nerds”

    7. Tort law Most basic bullying claim: Negligence Duty + breach + causation + harm Shelby v. Le Roy Central Sch. Dist. (N.Y. Sup. Ct. 2002) Student reported threat to ass’t principal, but sent to class Attacked and severely injured $11.4 million judgment

    8. Title IX The biggest impetus “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Court has repeatedly extended its reach

    9. Title IX & peer harassment Davis v. Monroe County (S. Ct. 1999) NSBA’s role as amicus Warned about liability for everything kids do to one another Ct: Extended Title IX to peer harassment BUT heeded concern about “strict liability” Note: Some advocacy groups HATE this

    10. Title IX test Conduct so “severe, pervasive and objectively offensive” as to deny educational benefits School’s control of harasser and context School’s “actual knowledge” What notice, to whom? School’s “deliberate indifference” Key: Investigation Interventions: If fail, change

    11. Section 1983 & Constitution Allows lawsuit against school official Fitzgerald v. Barnstable Sch. Comm., (S. Ct. 2009) Does Title IX preclude this claim? NSBA brief: Yes Ct. (9-0): No Here plaintiff should lose because court found no deliberate indifference Equal protection claims - legal costs

    12. Special education Shore Regional High Sch. Bd. of Educ. v. P.S. (3d Cir. 2004) Student receiving special education severely harassed Ct.: Denial of free, appropriate public education (FAPE) under IDEA

    14. Legislative responses Various federal proposals Safe and Drug-free Schools and Communities Act Mostly reporting requirements National Safe Schools Partnership Reporting Policies Preventive strategies Professional development

    15. Legislative responses No Child Left Behind: “Persistently dangerous schools” Public school choice State definitions: High, but can bullying result in it? Congress may rethink Label too extreme? How does this actually help? BUT calls for lower definition!

    16. Legislative responses State anti-bullying legislation 38 states have statutes Flavors: How prescriptive? BullyPolice.org: Grades states on laws Pros: Everyone on same page, get moving Cons: One-size-fits-all, top-down, plodding, liability implications Motives: Political reality, sincere concerns Are schools districts doing it on their own?

    17. Sexual orientation

    18. Sexual orientation Evidence Pervasiveness Severity Real or perceived sexual orientation Boy doesn’t act masculine enough? Girl acts too masculine? School responsiveness Title IX applies here!

    19. Sexual orientation Nabozny v. Podlesny, (7th Cir. 1996) First major ruling Theno v. Tonganoxie Unified Sch. Dist., (D. Kan. 2005) Ct.: Unimpressed with school’s efforts $440,000 settlement Note: Small towns

    20. Sexual orientation Analogy: Illegal immigration Schools cannot blame the victim Treat these claims like others ASK: Does everyone get it? Just perceived, openly, flamboyantly stereotypically… doesn’t matter! Just perceived, openly, flamboyantly stereotypically… doesn’t matter!

    21. “Enumeration”? Specify protected categories? Specific policies more effective Analogy: NSBA Delegate Assembly Objections: Unnecessary: Just all harassment and bullying? Symbolic endorsement? Seek common ground Process as important as result

    22. Bullying & Free speech Basic problem: Harassment or bullying may be in the form of speech! But when does speech cross the line to bullying or harassment?

    23. Tinker v. Des Moines Ind. Comm. Sch. Dist. (1969) “Material and substantial disruption” Or reasonable forecast thereof “Impinge upon the rights of others” Different exceptions for: Lewd or vulgar speech School-sponsored speech Student speech generally

    24. “True threat” not protected by 1st Am. Watts v. U.S. (1969) (true threat on President) If NOT true threat, Tinker disruption test? Some courts give schools more latitude BUT, still good point of reference Off-campus speech

    25. More recently Morse v. Frederick (S. Ct. 2007): “Bong Hits 4 Jesus!” not “plainly offensive,” no disruption Ct: 1. Can restrict drug message 2. This was not “off-campus” speech 3. Tinker not the only test Watch how lower courts apply this case! So far re. threats, not bullying, but…

    26. Bullying & Free speech Harper v. Poway Unified Sch. Dist., (9th Cir. 2006) T-shirt: "I Will Not Accept What God Has Condemned,” “Homosexuality Is Shameful, Romans 1:27” 2005: District had paid $200,000 judgment for failing to prevent harassment of gay students! Supreme Ct. vacated, case still moving

    27. Bullying & Free speech Nuxoll v. Indian Praerie Sch. Dist. (7th Cir. 2008) “Be Happy, Not Gay” T-shirt Ct.: Student may wear this shirt this time, but district policy not invalid

    28. Cyberbullying Advocates: Cyberbullying pervasive (1 in 3?) Calls for every district to adopt policy In other contexts, deliberate indifference to bullying or harassment invites liability But here, off-campus?

    29. Cyberbullying Coy v. Bd. of Ed. of. North Canton City Schools (N.D. Ohio 2002) Site insults “loser” classmates Ct.: Would be unconstitutional if school imposed discipline just because officials disliked content Unusual: Even on school equipment!

    30. Cyberbullying Neal v. Efurd, (W.D. Ark. 2005) Website demeans athletes, band, administration Parent complains, quick reaction Ct.: No threat = no disruption

    31. Cyberbullying BUT courts giving schools more leeway on safety issues? What is “material and substantial disruption”? Research about bullying A Delaware story

    32. Potential liability trade-off? Drews v. Joint Sch. Dist. No. 393, (D. Idaho 2005) Student sued district for failure to intervene when classmates posted info about her online Dismissed because district lacked control for Title IX purposes But what if …

    33. Practical points & governance Written policies Mandatory reporting by staff Forbid retaliation for reporting Require cooperation with investigation Reflect Title IX requirements Title IX coordinator Nondiscrimination policies Monitoring

    34. Practical points & governance Consistent enforcement Notice to students, parents Reasonable supervision plans Sound investigation practices KEY: Training for staff, documented Allocation of time and resources? Stay tuned: one possible tool

    35. Practical points & governance Oregon legislation: Designate person to contact to report bullying Title IX coordinator? Anonymous reporting? Use data to craft policies & practices: Maryland example School climate survey So what?So what?

    36. Practical points & governance Positive Behavior Interventions and Supports (PBIS), University of Oregon Bystanders Define & punish inadequate Zero tolerance horror stories First line of defense in education The BIGGEST picture: Part of broad shift of public education So what?So what?

    37. Practical tips: Cyberbullying School / district policies clear? Acceptable Use Policy for school equipment State statutory requirements checked? School personnel trained in policy?

    38. Practical tips: Cyberbullying Alternatives to disciplinary actions? Suspensions & expulsions may be justified, but constitutional implications WHY? Think AYP! Talk to offending student Contact parents of alleged transgressor

    39. Practical tips: Cyberbullying If social networking site, contact? May provide instructions, like MySpace administrator’s guide Cyberbullying not allowed No impersonating others

    40. Your state association

    41. Your own legal counsel

    42. Additional resources Leadership Insider, August 2006 www.nsba.org/leadership insider Additional resources page there too! DVD on harassment & bullying from Texas Association of School Boards Training tool for personnel, students Flyer here, or www.nsba.org/cosa

    43. Additional resources Leadership Insider, August 2006 www.nsba.org/leadership insider Additional resources page there too! DVD on harassment & bullying from Texas Association of School Boards Training tool for personnel, students Flyer here, or www.nsba.org/cosa

    44. Additional resources NSBA’s “Dealing with Legal Matters Surrounding Students’ Sexual Orientation and Gender Identity” www.nsba.org/cosa/sexualorientation Process for dialogue, common ground Christian Educators Ass’n Int’l, GLSEN http://www.firstamendmentcenter.org/PDF/sexual.orientation.guidelines.PDF

    45. www.nsba.org/schoollaw

    46. www.nsba.org/legalclips

    47. Discussion

    48. Parting thoughts: School culture Liability, safety concerns, yes Focus on academic achievement National commitment to leave no child behind Rite of passage? Think movies! Public education and parental confidence, school choice

    49. Parting thoughts: School culture School culture as to academic achievement? President Obama on “acting white” Mentor, Ohio? Secretary Duncan on President Obama The bottom line Creating a high-achieving school culture is a much greater challenge than just preventing bullying, but at a minimum this is one aspect we should be able to address. If we can’t even get this right, what chance do we have at getting the rest right? Creating a high-achieving school culture is a much greater challenge than just preventing bullying, but at a minimum this is one aspect we should be able to address. If we can’t even get this right, what chance do we have at getting the rest right?

    50. School Board Leadership for Student Achievement

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