Episode Eleven: Immediate Steps When a Bullying Complaint Is Filed

What are the immediate steps your administrators and staff should take when a bullying complaint comes in? How does this look on a practical day-to-day basis? This episode addresses the key steps in a comprehensive response to bullying complaints and offers an often-skipped strategy to avoid these complaints in the first place.

View Podcast Transcript

[music]

Miriam: Welcome to Education Law Update, the podcast that entertains and informs. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are Ohio attorneys. We practice school law. Every so often we get together; we talk about the latest legal developments that affect districts, board members, administrators, really anybody who works with the schools.

Lisa: In today’s episode in our series on bullying, we are going to talk about intervention strategies and tips so, basically, what administrators and teachers should be doing immediately when a parent or child complains about bullying.

Miriam: Yes. We’re going to go through all the steps. The first one is, just like we talked about last time, you have to reduce that complaint to writing.

Lisa: Actually, I’m going to take you back to step zero, which we consider is look at your policy.

Miriam: Yes, absolutely. Know your policy. Know your policy inside and out, and make sure that your staff knows at least at the very minimum what their role is, what their obligation is. For sure, definitely one of your steps in your policy should be reducing the complaint to writing.

Lisa: Basically, you have student A making an allegation. They may not directly be saying I’m making a bullying complaint. You’re going to have to listen to what the content of the allegation is to decide if you need to go down a specific bullying investigation route.

Miriam: We always tell districts err on the side of caution. I think we touched up on this in one of our first episodes about bullying, but if you’re not sure, just use your common sense. Don’t necessarily stick to the actual technical verbiage of your policy. If you think that whatever incident might possibly sound like bullying to a jury or to an agency investigator, use your common sense and treat it like a bullying complaint.

Lisa: Yes, absolutely. Basically, now back to step one is reducing that to writing hopefully on your standard forms that your whole district or whole building is using.

Miriam: Because you’ve already heard our previous episode and you know all about the importance of having a paper trail. That’s the first thing you’re going to do. Then you need to contact the parent, assuming the parent’s not the one making the complaint. Say, for example, Susie comes to you; Susie is crying. Or Susie came to her teacher, and then her teacher spoke to you. You want to make sure the parent knows about that before- really, this is just common sense -before the child goes home for the day.

Lisa: So really keeping a timeline in mind. Some policies have pretty tight timelines as far as who you need to notify when, when you need to get something in writing and then when you need to start investigating. We could be talking about literally the same day that allegations are.

Miriam: I guess what I’m saying is your policy might give you more time. Your policy might say 24 hours or 72 hours to start a bullying investigation or to let parents know. What I’m saying, and I think Lisa you’ll agree, just common sense. If the parent is not the one bringing the complaint, the parent should be called before the child goes home because–

Lisa: Keep this in mind for not just your elementary students too, also for high school, really any age because I know as a parent if my child came home and said I told this administrator this happened and I didn’t know from the school, I’m going to be pretty furious.

Miriam: Nobody likes surprises. Nobody wants their child to come home and start telling them this terrible thing that happened. Then the parent is left wondering, what’s going on? Is the school going to take care of it? What’s going to hap–? The parent now has all of that time, so from 3:30 that day to the next day, and let’s say it happens on Friday or over a long weekend, the parent has all that time to stew about this and think about this and get a little outraged at how was the school not handling this.

You can just avoid all of that. You can avoid all that stress by giving a parent a call and saying, “Hey, here’s a heads up. Here’s what your daughter came and told us. We will be starting an investigation within the next- whatever -24 hours, and then we’ll get back to you”. That way the parent knows right away what happened, and they feel more confident, more secure that you as a district administrator or teacher will handle it.

Lisa: Another thing that’s important to point out really quick about contacting the parent too. Say you’re the teacher that gets the allegations and you’re putting the complaint down in writing and then there’s a specific administrator you’re supposed to give it to. Make sure you’re clear between yourself and the administrator who’s responsible for contacting the parent and who’s going to take care of that so that you don’t get in a situation where the administrator thought that you were going to do it and you thought the administrator, and then nobody does it.

Miriam: I think that’s an important clarification. I think sometimes administrators are swamped. They’re really busy. They’re swamped, and maybe the teacher is the one to make that phone call. Like you said, it just has to be clarified. You have to have really good communication with your teachers, with your administrators about who does what and when.

Lisa: Now, you’re going to dive into this investigation which most likely is going to involve interviews.

Miriam: Yes. Detailed interviews, you want to talk to the victim. That’s the first person. Then you’re going to talk to the bully. You’re going to also– You’ll speak to the witnesses. You’ll speak to whoever was around, and especially any adults that were in the vicinity, you want to get all the details from them. You want to make sure that, again, you have a paper trail, so you’ll get witness statements from each of those people, from the victim, from the bully, from the witnesses. You’re going to try to encourage them to write down as many details. Sometimes these are little kids, and they don’t know how to write anything yet.

Lisa: Yes. Absolutely. If you have a kindergartener making an allegation, you’re not going to rely on them writing you a paragraph of what happened.

Miriam: What are you going to do?

Lisa: Let them dictate to you, and you make some notes about what they say. Be careful not to throw your interpretation into it too. Try to be as verbatim as you can in your documentation.

Miriam: I would just write it down, whatever the child said directly.

Lisa: Yes, absolutely. The other thing too when you’re considering who you need to talk to and interview, make sure you’re talking to enough people. Just because you talk to one witness and maybe get a story that doesn’t align with the allegations, you might need to talk to three, four or five other people.

Miriam: If you’re familiar with the dynamic of the class, that’s always good. For example, if you’re just talking to one buddy of the bully, that might not give you the full picture.

Lisa: Absolutely. Ultimately, you are going to try to take all this information that you gather and determine whether or not the allegation was substantiated.

Miriam: If the allegation is substantiated, you’re going to mete out discipline, whatever that discipline is, whatever discipline is appropriate. Sometimes when the complaint is not substantiated, you’re not going to be able to mete out the discipline, obviously, but you’ll still want to have a response. I think this happens all the time, Lisa. I think so many times principals, administrators, guidance counselors, they do an investigation; they take a look at everything. It could be any number of things that doesn’t substantiate a complaint.

Lisa: Absolutely. I have absolutely no factual statistics to support this, but I’m willing to guess that a large majority of complaints that administrators investigate do end up on that end of the spectrum of not substantiated, but we still should implement some proactive strategies.

Miriam: Yes. Let’s say, for example, just common sense. Kids are mean to each other, and they might know that they’ll get in trouble, so they do it in private. They might be a bully when there’s nobody else around. Then you’re investigating, and it’s just he said, she said, so that’s it.

Lisa: Yes. Another area that’s really tough for districts is when it’s something that happens off school grounds, especially with social media and the online cyberbullying, and how do you necessarily substantiate without being able to get into these electronic records that exist, number one, and what are you even responsible for as the district?

Miriam: Right. People can try to be anonymous, and they can be like, “It wasn’t me”. Then again, you’re in the same situation. You can’t substantiate the complaint. Sometimes you don’t even know who was the bully, so your investigation is thwarted right there. It’s cut short. Sometimes, even if there was something, there were witnesses that say, “These two kids had an altercation. They said words to each other. Somebody punched somebody”. Again, you know this. As an administrator, as a teacher, you’re often in situations where you’re thinking to yourself, “This is not bullying. There’s no power imbalance here. This is one kid starting up, another kid responding. It’s not bullying. It’s just a fight”.

Lisa: Certainly, you’re going to need to weigh that based on the factual evidence. For these ones that fight that’s off grounds or the cyberbullying, you’re also going to need to weigh what the impact is educationally in disruption related to the school to determine if you even really can discipline based on it. It may be clear that there was some cyberbullying say going on that maybe an authority needs to be notified of, but you may not be in a position as the district to necessarily discipline because it’s not impacting the school situation on any level other than somebody at school told you about it.

Miriam: This is really a First Amendment question and a free speech question because kids will say, “Look, it wasn’t on school grounds. Why is a government agency, why is a government organization like the school district punishing me for my free speech?” First of all, I just have to give this caveat. Whenever you’re dealing with a First Amendment issue, if it’s free speech or religion or whatever, just always contact your counsel. Speak to your attorneys because–

Lisa: Absolutely. These are just so fact specific. It’s hard for us to dive into really a concrete analysis or suggestion just because the facts are really going to drive what your response needs to be, so make sure you have the right people involved in these decision making.

Miriam: In general though, a school district will be allowed to discipline for something that happened off grounds if there’s a substantial disruption to the school day.

Lisa: Absolutely. Kid comes to school and the whole class can’t learn because everybody’s talking about what happened. You have kids crying, and it’s really impacting the educational environment. You very much are going to be involved in doing some discipline and follow up on that.

Miriam: Let’s say the teacher has to stop class or there’s kids missing school, that’s a situation, obviously, again consult with counsel, but I think in general, school districts have to be able to point to something specific. It cannot just be, “Hey, these kids might be sad. It really wasn’t a nice thing to do”. You’re really going to want to talk to an attorney if it’s something off school grounds.

Lisa: Let’s bring us back just a little bit to we have this case. We’ve investigated, but it’s not substantiated for one of the various reasons we’ve talked about. What are some of the things that you generally see districts put in place for non-disciplinary responses?

Miriam: There are many non-disciplinary responses that school districts can take. Sometimes a First Amendment issue, sometimes just anything else. You haven’t substantiated the complaint. Or it’s a special education issue; you can’t discipline the bully. You can still take action. This is so important. You can still take action so that you’re not found deliberately indifferent. You can offer the victim counseling. You can offer to mediate.

Lisa: I’m going to jump back really quick. The counseling component, that might also be for whoever the alleged bully is too. It may not only be for the victim, so think global picture there.

Miriam: Absolutely, and definitely, you have to get parent consent. I think we all know that. Parent consent is important if you’re going to provide counseling to anyone.

Lisa: Yes, absolutely.

Miriam: Mediation is seen typically as a good thing. You want to maybe meet with the kids, meet with even the parents, try and talk it through. I do want to caution you that the Office for Civil Rights does not want you to mediate anything. If it’s a sexual assault case or a sexual harassment case, they do not see mediation as a good situation there, but in other circumstances, it could be very appropriate.

Lisa: Along with mediation, there’s also other standard kind of programs out there I know like restorative justice and things like that, so you may be putting something like that in place.

Miriam: Lunch bunches. Let’s say you see the child is a frequent victim of bullying. There’s frequent situations, frequent fire situations with this kid. You might want to ask the parent. You might want to say, “Hey, you know what? We have this lunch bunch for social skills on Thursdays. The guidance counselor meets with the children. Do you want your child to be a part of that?”

Lisa: Maybe there’s some social skills to build on.

Miriam: Yes. Monitoring, here’s something interesting that school districts have done. You can put a monitor in place. You can say, “You know what? We haven’t been able to substantiate this, but you’re telling us that it happens in the hallways or in the cafeteria. We’re going to put an aide in there for a little while. We’re going to put somebody in the cafeteria to just keep an eye on things and maybe see what else is going on”. Not necessarily something specific to that particular child. Not a formal evaluation or an observation, but just to see what’s going on and try to be proactive if that adult does see something. That’s monitoring in person.

Then we also sometimes see video monitoring. I’ve seen in a few court cases, I don’t know if you’ve seen this Lisa, but I’ve seen a few court cases where the court says, “Hey, you know what? They put a video in place”. They put a video camera in place.

Lisa: Like surveillance?

Miriam: Surveillance to try to catch the bully, to try and see what’s going on. Sometimes this has an interesting consequence. I think one case I remember, the district put the video camera in place. The student was alleging somebody was putting notes in her locker, these horrible harassing notes in her locker, and the video cameras showed that it was the student herself writing the notes and putting them in her locker.

Lisa: Interesting.

Miriam: Yes, interesting. Sometimes if you have that video surveillance in place, it can give you more information than just about who’s the bully. You can actually get more information about whether the claim is true.

Lisa: Certainly, that video surveillance is starting to be a little more standard in buildings, in hallways, and on buses, and things like that. That can be a useful tool in your investigation process as well.

Miriam: Absolutely.

Lisa: Another thing to look at too sometimes is going to be maybe a schedule change if there’s certain students to maybe keep apart, but certainly, if you have a situation where there is some substantiated bullying, you’re not going to want to move the victim.

Miriam: I think schedule changes are good. I’ve seen this also in court cases where the court says these kids were both in the same math class, and to prevent anything else, one of the kids was moved. That’s something that you can do regardless if a complaint is substantiated. Lisa, like you said, the caveat here is that you don’t want the victim’s parent to come back and say, “Hey, my child was really supposed to be in this math class. It was the best place for her, but you moved her because she complained about bullying”, so you are really punishing the victim twice.

I remember a case where the parent was complaining that her child was being teased during lunch, that the little boy was being made fun of during lunch and kids were even punching him. The teacher said, “Hey, there’s lunch problems here going on. Your son can just come and eat with me. Every lunch, sit in the classroom just with me and not with his friends. Just sit with me and eat lunch”. Then the parent I think understandably said, “Now, you’re punishing my child again”.

Lisa: We got to think through some of these solutions in a common sense sort of way. How would you react to that if that was your kid or if you are that kid? Are you isolating them?

Miriam: Here’s what I want to say. I don’t want to scare you away from thinking outside the box and coming up with your own ideas. It’s important just to do that, again, not to be found deliberately indifferent. You want to show the court and the agency that you really thought about this and tried to see what else to do. We’ll have a separate program about special education, but one thing to do is to consider whether the victim or the bully might need a special education evaluation whether it’s for anger management for the bully or maybe just communication skills for the victim.

Sometimes you see kids who part of their disability that may be undiagnosed is difficulty in interpersonal relationships, difficulty in responding to kids joking around, and they take it too personally or whatever. An evaluation, in a sense of social skills or communications, might be really insightful.

Lisa: Absolutely. Something certainly to keep on the radar, but by no means take that as every time there’s a bullying situation that you need to do a special education evaluation, but certainly something to weigh based on the facts and what demonstrated behavior you’re seeing.

Miriam: Here’s another thing. I like this one: programs speakers. Last time we talked a little bit about anti-bullying programs in a global sense, but you can also do this in a very specific sense responding to a complaint. If you’re hearing a parent complain about religious based bullying, it’s fine. Speak to whoever you need to speak to them and arrange it and have somebody come in. Have a guidance counselor come in. Have a speaker come in.

Lisa: I love targeted speakers. When you can bring somebody that will really engage your kids that is not just somebody from the education setting, like when you can bring in somebody from the community, I think those can be very impactful.

Miriam: Those can be really good, and you don’t need to substantiate the complaint. You can just say– You can just do this.

Lisa: Absolutely. Let’s jump back just for a second though in our steps. You’ve either substantiated or not. If not, you’re putting in these measures, or you may be disciplining if it was substantiated. You have got to make sure that you are notifying parents but keeping in mind any privacy.

Miriam: FERPA, federal privacy laws and often state privacy laws do not allow schools to reveal information, personally identifiable information, private information about a student. Generally, you cannot call the victim’s mom and say, “Hey, we substantiated your complaint, and Bobby is going to get a serious punishment. Here’s what we’re going to do. Bobby has to write an apology letter and come in after school and do this and do that. I just want you to know that this is how we’re handling it”. That would be a violation of Bobby’s privacy, both federal and state depending on your state, but typically, it would be a violation of Bobby’s privacy.

Lisa: However, there are going to be situations where you are going to need to let the victim know.

Miriam: Excellent point, Lisa. This is something that’s relatively new. In the last few years, the Office for Civil Rights has been directing school districts to divulge that information to let the victim’s parents know about a consequence to the bully that will directly impact the victim. Just here’s an example. Let’s say Susie, the victim, has stopped going to school. She is afraid of this bully. She’s not attending class anymore. She’s skipping classes where he is also a member of the class, or she’s just stopped going to school completely. Then you’ve investigated. You’ve found the complaint to be true, and you have expelled Bobby, or you’ve suspended him for a number of days.

You’re going to want to let Susie’s parents know, the victim’s parents know that she can come back, that she should be feeling comfortable to come back to math class because he’s not going to be there.

Lisa: Right. Basically, those consequences directly impact the victim and how the victim’s going to respond to the situation.

Miriam: Right. If it’s not that kind of thing, if the consequences to the bully are not going to impact the victim directly, you need to craft your statement to the parent very carefully.

Lisa: By parent, you mean parent of the victim?

Miriam: Yes. When you’re talking to the victim’s parent and you’re letting them know about the results of the investigation– That’s by the way something you should always be doing with any investigation. When you’re talking to that parent, you’re going to want to craft your statement carefully. You’re going to want to say something general. You’re going to want to say, “Your complaint was substantiated, and we are going to take care of this based on our policy”. That’s a general statement that you can always make.

Very often, you’re going to have the parent– That’s not going to be enough. That’s not going to be enough for the parent. Parent’s going to say, “I want to know what you’re doing to that kid. I want to know what you’re doing to Bobby. I want to know how you’re taking care of this. If you’re going to tell me you’re following your policy, that doesn’t mean anything to me”. To a parent, that often translates- Lisa, I think in your experience as well– To a parent, that will translate into we’re not doing anything.

Lisa: As the parent, you’re going to want those details even to the extent that you’re not going to realize are private and protected. As the administrator, you’re going to have to do some explanations, some careful conversation.

Miriam: You can say to the parent, “Wish we could tell you more, but unfortunately, federal privacy laws don’t allow us to do that”. You know what? Here’s the thing. This is not the most important part of the conversation. The most important part of the conversation is what you say afterwards, what you say after your complaint has been substantiated and we’re taking care of it according to the policy. You need to express to that parent that their child’s safety is of utmost concern, is your primary concern and that you are going to be taking other steps. Here’s where you can talk about these non-disciplinary responses.

Lisa: These oftentimes can help calm the parent and help them feel assured that you’re taking a global stance, not just with the specific bully, but trying to make the situation better across the board and prevent it from happening again.

Miriam: Here’s a good statement. You can say, “Mrs. Smith, your complaint was substantiated. We did the investigation, and we substantiated what your daughter said. We’re going to be taking care of this with the other student according to our policy. We can’t divulge the details as you understand according to federal privacy laws, but I want you to know that it concerns me what happened with your daughter. I understand that she’s really upset, and we would like to have our guidance counselor talk to her a few times and maybe work this through with her. Maybe even give her some tips for how to work this through on her own. Is that okay with you? Can we offer this counseling?”

That right away signifies to the parent that you are concerned about her child. It’s not you’re going to follow some policy. It’s that you are genuinely concerned about the child.

Lisa: Yes, absolutely. Acknowledging the allegations, the impact can go so far.

Miriam: Here’s another good thing. It doesn’t even have to be substantiated. You can have a complaint that’s not substantiated, and you can say pretty much the same thing. You can say to the parent, “I’m really sorry we couldn’t substantiate the complaint”. If you leave it at that– Many districts will just leave it at that. “I’m sorry, Mrs. Smith. We talked to a bunch of kids. We couldn’t substantiate it”. Or, “We think it was a mutual thing”, or whatever, and then the parent just gets mad.

Lisa: Don’t underestimate these conversations because it’s often the conversations where the parent doesn’t feel heard that lead to the actual agency complaint lawsuit. Often it’s not necessarily what you did or didn’t do an actual action. It’s that you didn’t take the time to listen to what they had to say, or they didn’t feel like you heard them.

Miriam: Parents will say, “You didn’t substantiate the complaint. That means you think my child was lying”.

Lisa: Yes, or you didn’t look into it.

Miriam: You were deliberately indifferent. You didn’t talk to the right people, and now you think my kid’s lying. You want to head that off, and again, the words you say are so important here. You’re going to say, “I’m sorry, Mrs. Smith. We couldn’t substantiate your complaint, but I want you to know that Susie’s welfare is most important to me. I am really concerned about these allegations even though we couldn’t substantiate them, so here’s what I’m going to do. I’m going to put a monitor in the cafeteria to take a look at what’s going on with those kids with that lunch table. I’m also going to invite some speakers to the class to talk about this racial bullying and the harmful effects, the deleterious effects that this could have on children. We want to offer your daughter counseling”.

You want to get across to that parent that her concerns are really important to you. It’s very often the parent that you don’t want to say this to. Very often, you’re talking to the parent who is the one complaining to you every day. You’re talking to her every day, and she’s telling you just another story, and you’re just really tired of it. You’re overwhelmed by her. You just want to ignore her. You want to pass the buck. You want to tell somebody else to deal with it. You just want to ignore her.

Lisa: Which is certainly a natural reaction.

Miriam: Natural reaction, but that’s the parent who’s going to call her attorney.

Lisa: That’s going to be the one where the one time it actually should be substantiated you might not have looked into.

Miriam: The boy who cried wolf. Exactly. Then that parent’s going to say, “I told the school all the time”. That’s going to be part of her claim. She’s going to say, “I called every day, and I talked about this”. You as the administrator, you might be thinking, “Yes, that’s why I stopped taking your calls because you literally call me every day”. This is also the parent that you want to comfort. You really want to get across to them that their child’s safety and well-being and happiness at the school is something that is of concern to you, so even though you couldn’t substantiate those claims, you’re still going to take action. That’s going to send a message.

Like we said a few times, we can’t prevent these complaints. We can’t prevent these agency complaints or these lawsuits, but right now, these tips about how to talk to parents, this I would say comes close.

Lisa: I would say in some instances, this will prevent you from having a formal complaint to an agency or a lawsuit, if you can talk to a parent in a way that they feel heard and reassured.

Miriam: Especially if that parent is the annoying one, is the one that calls you every day. Here’s another thing. It’s the follow-up. You’ve spoken to this parent. You’ve dealt with this, and you’re busy. You’re going on. You’re going on with your life. You’re going on with other kids. You’ve moved on, but you want to call that parent back. You want to call her maybe once a week for the next few weeks. You want to call and say, “Hey, I just wanted to follow up. How’s it going? How’s Susie doing? Have there been any more instances? Please let us know. Please let me know right now, and please, definitely feel free to call me if anything happens”.

This is what I always think about. That parent who might be at some point annoyed. She might be like, “Oh my God, why is he calling me again?” That’s the parent who’s not going to call her attorney.

Lisa: Also, make sure you’re following through on all those steps that you told the parent you were going to do, all those preventative steps. If you say you’re going to have a speaker come in and present, make sure you actually get that set up, and they’re not just empty promises.

Miriam: And that you let the parent know. You can call the parent and say, “We had a speaker this week. I wanted to specifically let you know that we had this anti-bullying speaker come to the class. We had a monitor put in the hallway. I wanted to let you know that we did that”. That parent’s going to be the one who says, “All right, I don’t need to get my attorney involved”.

Lisa: Also, some important issues we’ve touched on earlier about if there’s a special ed student involved as either the victim or the bully, we will discuss that more in another episode. Definitely, keep in mind that that’s going to create a few more steps that you’re going have to follow.

[music]

Miriam: Lisa, today we talked about the immediate steps, what to do when a bullying complaint comes in and the important non-disciplinary responses that school districts can try to implement whether or not a complaint is substantiated, whether or not discipline can take place. I think it’s very important that we talked about how to respond to parents, how to contact them, how to follow up, how to explain the outcome of their complaint.

Lisa: We hope all this information’s really useful getting you thinking about the things you need to follow and some out-of-the-box ideas to think about as well. Next episode, join us as we dive into the laws districts face regarding public records and student records.

Miriam: I hope you really enjoyed this. I hope you liked this episode. Let us know what other non-disciplinary responses you’ve tried. Let us know what other out-of-the-box ideas you’ve had in dealing with bullies and discipline and just even addressing bullying in your schools. I would love to hear about that.

Lisa: If there’s any issues specifically to bullying that you’d like us to talk about further in another episode, we’d love to hear about that idea as well.

Miriam: Or anything. If you have a topic that you’d like to hear more about, send us a little email. Let us know. Also, rate us on iTunes. We love to see those positive comments and high ratings. That helps the algorithm move our podcast up, and it helps everybody else to find our podcast. Thanks very much. Have a great day.

Lisa: The content of this podcast is provided for general information purposes only. The podcast in not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only up on advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.

[00:31:35] [END OF AUDIO]