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Legal and Practical Responses to Allegations of Bullying Karen Haase Harding & Shultz (402) 434-3000 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 Haase Harding & Shultz (402) 434-3000 H & S School Law @KarenHaase

Esu 13 bullying