esu 13 bullying
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Legal and Practical Responses to Allegations of Bullying
Karen HaaseHarding & Shultz
(402) [email protected]
H & S School Law
@KarenHaase
Bullying?“any ongoing pattern of physical, verbal, or electronic abuse on school grounds, in a vehicle owned, leased, or contracted by a school being used for a school purpose
by a school employee or his or her designee, or at school-sponsored
activities or school-sponsored athletic events.”
Cyberbullying?Cyberbullying, v: the use of technology
such as computers and cell phones to engage in repeated, and hostile behavior
by an individual or group, that is intended to harm others.
The term "cyberbullying" is used when the victim or bully is a child or teen. The term cyber harassment is used when the
victim is an adult.
Not My Students!
Tell teacher: 27% of preteens and only 9% of teens
Tell friend: 44% of preteens and 72% of teens
Told no one: 16% of preteens and teens
“Garden Variety” Bullying Cases
Yap v. Oceanside Union Free S.D., (E.D. N.Y. 2004)
Chinese-American student bullied by peers
• Beginning in 4th grade• Called him names: “Chinese asshole,”
“Chinese bitch”• Slapped in the face• Thrown into the emergency exit of
bus • Mother called principal
Yap v. Oceanside Union Free S.D., (E.D. N.Y. 2004)
Principal’s Response – 4th Grade • Met with victim and aggressors after
initial report• Communicated with parents about
problems • Required all involved students to eat
lunch with her
Yap v. Oceanside Union Free S.D., (E.D. N.Y. 2004)
Principal’s Response – 5th Grade • Met entire 5th grade class • met with each of the students named
as bullies• investigated and documented each
allegation• admonishing the perpetrators. • denied lunch, recess, school bus
privileges
Yap v. Oceanside Union Free S.D., (E.D. N.Y. 2004)
Court• School district “doggedly but
unsuccessfully” attempted to address the Yaps’ allegations of bullying and harassment.
• Court “must avoid second-guessing the disciplinary decisions made by school administrators.”
M.D. v. School Bd. Of Richmond (6th Cir. 2010)
African-American Kdg student bullied by Hispanic peers
• “repeatedly and continuously directed vulgar and offensive racial epithets” at student
• Physically assaulted him• Stole his property• Called him “gay”
M.D. v. School Bd. Of Richmond (6th Cir. 2010)
Mom reported bullying to school, asked for copy of policy
School staff routinely told parents staff could do no more that speak to bullies
Vice Principal: “I can only punish within limits of my authority. I can’t control what kids do.”
M.D. v. School Bd. Of Richmond (6th Cir. 2010)
In April, Principal agreed to “personally address” the situation
Parents withdrew from school Principal met with “bullying
specialist” to develop plan Parents refused to return student to
school
M.D. v. School Bd. Of Richmond (6th Cir. 2010)
Parents sued under Title VI (race) and IX (sex)
Court: • “The issue here is not whether
Plaintiff has suffered severe bullying on account of his race and sexual orientation at the hands of fellow students. . .
M.D. v. School Bd. Of Richmond (6th Cir. 2010)
Court: • “The pivotal issue is whether Plaintiff
states a claim against [the school] based on ill-treatment by fellow students.”
• Although staff did nothing but speak to offending students for two months, principal was willing to get involved
• School not deliberately indifferent
G.M v. Dryceek Joint Elem. Sch. (Cal. 2012)
Student bullied 5 times in 6 months• After first incident teacher said she’d
watch the situation• After similar incident teacher and
counselor met with bullies• Assistant principal met with bullies• Bully punched victim in face and
received 5-day suspension
G.M v. Dryceek Joint Elem. Sch. (Cal. 2012)
Court: school officials took action aimed at stopping the harassment each time Deliberate indifference requires that
district know of harm and failed to act
J.C. v. Beverly Hills Unif. S. D. (Cal.)
8th grade girls talking smack about a peer; uploaded to YouTube
Principal suspended student who uploaded
Dad was an entertainment industry lawyer; sued district claiming First Amendment protection
J.C. v. Beverly Hills Unif. S. D. (Cal.)
Court: The good intentions of the school notwithstanding, it cannot discipline a student for speech, “simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”
$107,150.80 in attorneys fees
J.C. v. Beverly Hills Unif. S. D. (Cal.)
Dad: • Hopes his daughter learns a lesson
about the limits on governmental intrusion.
• “The school doesn’t have that kind of power. It’s up to the parents to discipline their child.”
• Chastised daughter: “That wasn’t a nice thing to do.”
Bullying as “Harassment”
Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)
Student with Asperger's subjected to bullying by peers Alleged that school staff did not stop
and also called her “crazy” Sued in federal court
Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)
Failure to protect • Compulsory attendance laws do not
create duty for school to protect from third party bullies
• School’s policy did not undertake this obligation
• Claim dismissed
Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)
Equal protection claim • School: student treated like any other
student• Parents: 32 documented incidents of
bullying • Court: difference in treatment without
rational basis
Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)
Section 504 claim • School: no evidence that school staff
treated student badly because of disability
• Court: other students treated this student badly because of disability; school was deliberately indifferent to student misconduct
Phillips v. Robertson County Bd. (Tenn. Ct. App. 2012)
Student with Asperger syndrome • Private counselor sent letter • Parent constantly reporting bullying
and asking for help• School developed system for kid
• Preferential seating• Card system to signal when feeling
bullied or stressed
Phillips v. Robertson County Bd. (Tenn. Ct. App. 2012)
Teacher left student classroom unsupervised• Student struck in the eye by bully• Sustained permanent damage
Teacher testified• Didn’t know about disability• Didn’t know about accommodations
Court ordered $300,000 judgment
Estate of Lance v. Kyer(Texas 2010)
9 year old boy with disabilities hanged himself in school restroom after being bullied Parents sued claiming disability
discrimination Court: district personnel had a
consistent policy of ignoring bullying against all students, so no discrimination
Kendall v. West Haven Dep’t. of Ed.(Conn. 2000)
Elementary special ed student injured by another student• Parents called and reported prior
incidents to assistant principal• Assistant principal said she would take
care of it• Assistant principal then called out of
building
Kendall v. West Haven Dep’t. of Ed.(Conn. 2000)
The student seriously injured when the bully attacked him in the school cafeteria. Court awarded $67,000 in damages Found the assistant principal
personally liable
Werth v. Board of Directors,(E.D. Wis. 2007)
9th Grade student in woodshop• “an abnormally shaped skull,
characteristic facial appearance, short stature, and dental abnormalities”
• hump on his back; considerably smaller than other students
• Peers threw wood at him• Hit with safety glasses
Werth v. Board of Directors,(E.D. Wis. 2007)
Parents sued school and individual teacher • Equal Protection
‒Parents: treated differently because of disability‒Court: No evidence of school/staff animus
because of disability‒“Werth’s claim is that he was entitled to more
than equal protection”• Rehabilitation Act/ADA Claim
‒Court outlines 5-part test
Werth v. Board of Directors,(E.D. Wis. 2007)
Disability Harassment Test• Student falls within statutorily protected
category (disability, race, gender)• Student harassed because of protected group• Harassment was sufficiently severe or
pervasive and deprived the student of access to educational benefits or opportunities provided by the school
• Defendant knew of the harassment• Defendant was deliberately indifferent to the
harassment
Dear Colleague Letter Bullying ≠ Harassment If based on protected class Must use anti-discrimination laws
Must have “well publicized” policies Staff cannot encourage, tolerate, fail
to address or ignore harassment Investigation and response must be
immediate and effective Must prevent reoccurrence
Dear Colleague Letter “By limiting its response to a specific
application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment”
Practical Responses to Bullying
Curricular Individualized Administrative
Curricular Responses: SEL Social Emotional Learning: teaching
our children how to detect and manage their own
emotions make good social decisions
Teach kids about RELATIONSHIPS How does that make you feel? What can you do about it? Parents must manage emotions
Curricular Responses: SEL
Teach kids to recognize, report and refuse bullying
Social problem-solving also improves academic performance and a number of other factors for students and schools
Statistically successful bullying prevention is social-emotional
Curricular Responses: Bystander Training
Peers present in 85% of bullying in school setting
92% of elementary students report witnessing bullying
Bystanders intervene 11% of the time – interveners had high social standing
Bystanders experience anger, guilt, worry, etc.
Curricular Responses: Bystander Training
Identity socially influential students, provide training in• Recognizing bullying • Empathy (and guilt)• Specific strategies for intervening• When to report; “tattling” vs.
“telling”
Individual Responses
Individual Responses: Victim
Interventions• Social skill training• Hygiene training with, sped
teacher, counselor or other staff • Peer mentor Consider 504 or SpEd eval Follow up is key with OCR
Individual Responses: Bully
Interventions• Social skill training• SpEd students: BIP Consider 504 or SpEd eval
Administrative Responses: Staff Supervision
Doe v. Rich Central H.S. (2012)
Boy complained of being bullied in locker room
Security camera caught staff talking Boy assaulted Case settled
Doe v. Clover H.S. (2012)
Three football players claimed they were hazed
13 players were suspended The sheriff's office investigated Bullies sued to be returned to school
and team
Creekbaum v. Livingston Parish Sch. Dist. (2011) Three football players urinated on
freshman’s locker Victim sued claiming emotional
distress and negligent supervision Coach: never had a problem before
Other Administrative Responses Keep “Responding and Reporting”
separate in your mind (and your staff’s mind)
DOCUMENT, DOCUMENT, DOCUMENT
Don’t make promises you can’t keep
Documenting Responses
Legal and Practical Responses to Allegations of Bullying
Karen HaaseHarding & Shultz
(402) [email protected]
H & S School Law
@KarenHaase