BULLYING: Legal Issues & Practical Strategies. Presented by Jenny Wells and Shellie Crow. Why is the topic of bullying so important now?. National media attention Federal Scrutiny on Response to Bullying Oct. 2010 USDE issued the “Dear Colleague” bullying letter
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If “Bullying” is confirmed:
Bullying is deliberate. The bully wants to hurt someone. Bullying is usually repeated, with the bully targeting the same victim again and again -- and the bully takes advantage of an imbalance of power by picking victims that he or she perceives are vulnerable…. A powerful testament to the fact that bullying is not part of the natural order of things is that most people can remember, even decades later, the feeling of being bullied or bullying another individual. Or they may feel haunted by the memory of standing by while a friend or classmate was bullied.
Even if the Code of Conduct prohibits bullying,
by law a student who is a victim of bullying and
who uses reasonable self-defense in response to the bullying cannot be subject to disciplinary action.
“Dear Colleague” letter from October 2010
Various federal laws prohibit harassment and discrimination based on protected characteristics. (Section 504, Title IX)
Bullying can constitute unlawful harassment based on race, sex, gender, national origin, and disability, and religion.
School districts must take a comprehensive approach to address and eliminate unlawful harassment.
Board Policy FFI states that if the conduct could be prohibited harassment under Policy FFH, refer to the appropriate individual
Understand that conduct could be bullying, prohibited harassment, or both.
Bullying does not have to “rise to the level” of prohibited harassment
Continuous, severe teasing of a student, with an imbalance of power, that disrupts his or her education is Bullying
If the student is teased based on race, sex, gender, national origin, or religion – could be Harassment
But harassment doesn’t require an “imbalance of power.”
Being cruel to others by sending or posting harmful material or engaging in other forms of social aggression using the Internet or other digital technologies.
Stealing a password to a social networking site, then using another’s profile to post damaging information or rumors;
Altering photographs to humiliate someone;
Recording phone calls without an individual's knowledge, then posting the call online;
Posting mean-spirited online polls about someone; and
Posting hurtful and embarrassing information about others.
School districts may discipline off-campus misconduct if there is an actual disruption on campus or a reasonably forecasted substantial disruption
When a school receives information about off-campus bullying, it is on notice that there is a potential bullying issue that could carry-over into the school environment. The district should proactively monitor the student’s on-campus conduct.
You may confiscate a student’s cell phone at any time he or she uses it in violation of school policy.
But looking at the contents of the phone is a search.
Justified at the inception (meaning there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school)
Reasonable in scope (meaning the search must be related to the object being searched for AND not excessively intrusive)
Notification of alleged bullying
Take immediate steps to investigate
Take interim action to protect the targeted student
Make a determination & prepare a report of your findings
Inform the parents of the outcome of the investigation
Take prompt & effective action to end the harassment, eliminate any lingering effects, & preventing future harassment
A student may notify a teacher, counselor, principal, or other district employee
Any district employee so notified or who otherwise receives information that a student has or may have engaged in bullying must immediately notify the campus principal or designee orally or in writing
In turn, the principal or the principal’s designee must put any oral complaint of bullying in writing
A common mistake is to make a determination about bullying simply based on the initial description of the conduct without further investigation.
Even if the conduct does not seem to rise to the level of bullying or harassment, an investigation MUST be conducted.
Each and every bullying claim must be treated seriously and thoroughly investigated.
The investigation should be completed within 10 district business days from the date the report is received.
A written report of the investigation, including a determination of whether bullying occurred, must be submitted to the Superintendent or designee.
Take claims and allegations seriously – no matter how trivial they seem.
Interview the parties and all possible witnesses, and be professional. The investigator must demonstrate by his behavior that the complaint is being taken seriously.
Maintain proper documentation of the investigation, such as taking detailed interview notes or securing relevant evidence.
Use discretion when talking to people in the course of the investigation. Don’t gossip about the claims or the people involved.
Know when to get help.
Treat all persons with dignity and respect.
Take immediate and appropriate action upon conclusion of the investigation.
Ideas for ending the conduct
Separate the students
Appoint an escort to take the students from class to class
Take appropriate disciplinary action against the harasser
Utilize safety plans or stay-away agreements
Provide additional supervision
Train faculty on constructive responses
Involve the parents
Involve law enforcement
Ideas for eliminating any effects of the conduct
Provide training or other interventions to ensure that all students, their families, and school staff can recognize the conduct if it recurs and know how to respond
Provide counseling for the targeted student and/or bully
Provide additional services to the targeted student
Redistribute policy FFI or FFH & make revisions if appropriate
Publicize the means of making a report
Conduct community outreach to improve the school climate
Ideas for preventing further conduct & avoiding retaliation
Host class discussions
Make sure that the harassed students and their families know how to report any subsequent problems
Encourage the subject to contact a person in authority if the conduct continues
Monitor the situation and conduct follow-up inquiries to see if there have been any new incidents or any retaliation
Respond promptly & appropriately to address continuing or new problems
Victims of bullying have the right to request a transfer to another classroom or a different campus.
The bully may also be transferred to another classroom or a different campus. The transfer of the bully must be done in consultation with the bully’s parent, but the parents’ permission or consent is not required.
May be more likely to be bullied or engage in bullying-type behaviors
May trigger obligations under Section 504 and ADA (harassment).
May trigger obligations under IDEA (revisions to IEP, FBA, BIP)
Laws may conflict (discipline, transfer)
Different methods of reporting, investigating, and responding to parent complaints.
Is behavior impeding learning?
Is placement appropriate? What about transfer requests?
Have effects of bullying been addressed?
Evaluate in all areas of suspected disability?
Did the District Employee report in accordance with Policy FFI?
Did the student claim “self-defense?”
Does the IEP need to be revised?
Do additional assessments/services need to be conducted? (FBA, counseling, Social Skills, self-advocacy)
Does additional supervision need to be in place?
Does a Manifestation Determination Review need to be held?
Was the child denied FAPE? (T.K. v. New York Dept of Ed. case)
Consider the effects on the student
Objective v. Subjective
May trigger a referral to Sped or Section 504
May prompt a request for Homebound
Increase in litigation over the past year
District liability for bullying is typically based on the same legal principles as liability for student-student harassment.
There may be liability for the school district if the conduct must be so severe, pervasive & objectively offensive that it:
deprived the victim of access to educational opportunities and benefits;
school officials knew about it; and
school officials responded with deliberate indifference.
Ensure employees are familiar with policy FFI and FFH
Ensure employees are trained to properly respond to allegations of bullying or harassment
Avoid being deliberately indifferent
That’s just the way kids talk to each other these days.
He just has to learn how to fend for himself.
If I have to look into every allegation of bullying, I won’t have time to do anything else.
Boys will be boys.
Girls are just mean to each other at this age.
We can’t protect them from everything.
Kids have always been bullied. It’s just part of life.
I’m sure she didn’t mean it.
If he just didn’t _____, then kids wouldn’t pick on him.
Bullying, possibly including off-campus conduct if school officials have good reason to believe the conduct will substantially disrupt school or incite violence (Policies FFH and FFI)
Any conduct that constitutes sexual harassment or sexual abuse whether the conduct is by word, gesture, or any other sexual conduct, including requests for sexual favors. (Policy FFH)
Harassment of any kind, including but not limited to, harassment motivated by race, color, religion, national origin, or disability directed toward another student or District employee. (Policy FFH)
Amy is picked on and called names by Brittany every day at lunch and during sixth period. Amy starts going to the nurse’s office during lunch and the counselor’s office during sixth period in order to avoid Brittany. If Amy tells the nurse or counselor that she is trying to avoid Brittany, or indicates in any way that she is being bullied, what are the obligations of the nurse, counselor, and/or school district?
Victor’s mother tells the ARD committee that she thinks her son is being bullied by boys in P.E. The ARD committee says that “bullying” should not be discussed at ARD, and the matter is dropped.
Was this the correct approach?
Juanita’s dad calls the Principal several times to discuss alleged bullying by a classmate, Andrew, on the playground. The Principal looks into it, determines that Andrew did behave improperly towards Juanita, and that he even called her some sexually harassing names. He sends Andrew to ISS and moves Andrew into a different class so he is separated from Juanita. The Principal does not follow-up with dad, who later files a complaint of sex discrimination with OCR claiming he reported mistreatment of his daughter and the district “did nothing.”
How could this have been handled differently?
Alex’s mother emails the Assistant Principal and tells him that Alex was called names and teased by a classmate on the bus. The Assistant Principal reads mom’s email and determines that the conduct described does not “rise to the level” of bullying, so he responds back “I’ll look into it,” but never does.
What do you think of the Assistant Principal’s response?