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Kelley Baker kbaker@hslegalfirm.com

Karen Haase khaase@hslegalfirm.com @KarenHaase

Steve Williams

Bobby Truhe

swilliams@hslegalfirm.com @SteveisEsteban

btruhe@hslegalfirm.com @btruhe

School's Reaction to Repeated Bullying Refutes Claim of Deliberate Indifference Schools must respond promptly when the receive reports of bullying or harassment. The difficulty is that even well designed responses aren't always effective in ending student-on-student harassment. The good news for schools is that, even if the student-on-student harassment continues after the school responds, the school will not be held liable as long as school officials haven’t been deliberately indifferent to the harassment. In G.M. by Marchese v. Drycreek Joint Elem. Sch. Dist., 59 IDELR 223 (E.D. Cal. 2012), a California district failed to stem the tide of bullying of a student with learning disabilities during gym class. However, the District Court held that the school had not been deliberately indifferent to the bullying because it had tried to take effective action against the bullies. The student in this case was bullied five times during a six-month period. After the first incident, involving name-calling and hitting, the teacher vowed to watch the students carefully. When a similar incident occurred a month later, the teacher and a school counselor met with the two harassers and barred them from working together or in a group with the student. After additional incidents, the parents complained that the teacher's efforts were ineffective and that one of the bullies was encouraging other students to harass her son. The assistant principal met with the new harassers, told them to stop, and warned them of possible future consequences. In the final incident, a classmate punched the student, and received a five-day suspension. The parents sued the school district under Section 504 of the Rehabilitation Act. They argued that the district knew the student was the target of continued and systematic harassment but was deliberately indifferent. Deliberate indifference, the court observed, requires showing that the district knew of the harm, and yet failed to act upon it. It isn't sufficient to show that the district was negligent. Here, the court pointed out that the teacher responded to each incident by speaking directly with the other students involved. She also brought in a school counselor to provide additional support. Moreover, the


counselor and assistant principal spoke to the offenders following some of the incidents. And the teacher took additional action by prohibiting the harassers from working with or near the student. Finally, the assistant principal suspended the perpetrator of the most serious harassment. Schools should take affirmative steps to address incidents or reported bullying. However, that doesn't mean that the response has to be perfect or that school must immediately solve all student problems. If you have any questions or concerns about how to respond to allegations of bullying and/or harassment, contact your school attorney or Kelley, Karen, Steve, or Bobby. I:\3\7613\E-mail Updates\132 Responding to Bullying.docx


Responding to Bullying