Episode Nine: Bullying and the Law

Bullying lawsuits and agency complaints are on the rise across the nation. What does the law say about bullying and what criteria do courts and agencies use in deciding legal liability? How can districts avoid being found deliberately indifferent to bullying? Miriam and Lisa start off our series on bullying with a brief overview of the laws and how they apply to school districts and their employees.

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

Lisa: I’m Lisa.

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

Lisa: Today we have an interesting topic that we’re going to start on regarding bullying, which is obviously really relevant to the school districts currently and is getting a lot of media attention. We are going to spread this across a couple episodes to dive into different aspects of it. For today we’re going to start with what’s involved in a bullying lawsuit or agency complaints and give you a little bit of background, definitions, protections that are involved and walk you through some insights as how the court would analyze and address different components of a bullying lawsuit and weave in some tips in how to avoid and prepare for the situation and those types of analysis should your district end up involved in one of these lawsuits.

Miriam: Yes, so in other words, if you as an administrator, a teacher, or a board member are pulled into a bullying lawsuit, what is the court going to look at to determine if you violated the law or if your employee violated the law.

Lisa: Yes, let’s start by just giving you first the distinction between what a court lawsuit is going to look like versus an agency complaint because this could come in either fashion.

Miriam: Yes, and I think people are sometimes confused about this. A lawsuit is filed in court, federal court or state court and it will be against usually the district, the board of education, and other individuals; teachers, bus drivers, superintendents, those will all be named. The lawsuit is where the parent is asking for money. Agency complaints–

Lisa: Is it always asking for money as the remedy?

Miriam: Usually, sometimes they add on other requests, but very often in bullying lawsuits, the parents are looking for damages.

Lisa: Then agency complaints, the key agencies we have involved in these are usually the Office of Civil Rights or your state department of education are probably the two you’re going to see a complaint filed with for bullying.

Miriam: Here an agency complaint is when a parent alleges to that agency that the school district as a whole is not following regulations. Then that agency comes in and does an investigation. They will take a look at the district, at your policies and practices and just determine whether the law was violated. There’s usually no financial burden involved in terms of a remedy.

Lisa: Let’s give just some background on some of these definitions that float out there on bullying. We’re going to use the terms bullying, harassment, intimidation, pretty much interchangeably, but there are a variety of definitions out there.

Miriam: Yes, from what I’ve seen, Lisa, there is no one set agreed upon definition of bullying, but most definitions involve a power imbalance between the students and typically includes situations where children are limited in the educational benefit that they received. The child’s education, the victim’s education is somehow affected by the harassment or intimidation. There’s also different kinds of bullying, so some bullying is just generic mean things that kids say to each other, “You’re so fat”, “You’re so ugly”, “You’re dressed weird.”

Then there’s also bullying based on a protected category, which is race-based bullying, gender, disability status, religion. That looks more like, “You’re so ugly because of your skin color,” or, “What is that weird thing that you wear on your head?” Obviously school districts are obligated to curtail all kinds of bullying, but most of the lawsuits that we see tend to focus on the second type of bullying, bullying based on a protected category.

We’ll address both kinds, but we will mostly be talking about bullying based on a protected category.

Lisa: these are going to be important because in a lawsuit, especially for these, you’re going to be invoking a variety of federal laws, not just one component. There’s going to be multiple facets of analysis that have to be taken by the court.

Miriam: Before I jump into the constitution and the federal laws, I also just want to point out that school districts should avoid getting caught up in their technical definitions in their policies. Different school districts may define bullying differently, but if you’re faced with a victim, alleged victim, or the parent of an alleged victim, it’s always better to err on the side of caution and not get into a whole discussion about whether a certain situation was actually bullying or was maybe something a little bit less than bullying.

Lisa: An example of that, we hear a lot of districts get caught up in the, “Oh, it only occurred once,” or some specific terminology within their definition but having more of a broad view of it is going to be helpful. Also making sure you’re following your policies for investigation even if, on the face of it, you’re not entirely sure if it really is bullying, still go through those steps of investigation.

Miriam: Right, exactly. Don’t get caught up in the technical definitions. Go through the investigative process.

All right, let’s just jump ahead. Let’s just jump into the 14th Amendment. The 14th Amendment has two clauses that are relevant to bullying. The substantive due process clause prohibits governments, prohibits states from taking away your fundamental rights without a process, without a trial, without a hearing. For example, you can’t expel a student without a hearing, and you’re not going to go to jail without some kind of trial.

In terms of bullying lawsuits, the student comes, the parent comes to court and says, “Look, I had a fundamental right to an education free of harassment based on my religion, the district didn’t do anything. I was harassed, I was bullied because of my faith or my skin color, and the district didn’t do anything.” It took away this fundamental right without any kind of process.

The question is, does this work? Does this kind of lawsuit claim work? Do courts take this seriously? Typically they don’t. This specific kind of claim courts reject and they say, “This is not something you can bring to court because this is about the government taking away your fundamental rights, not other students bullying somebody else.”

Lisa: As in typical legal fashion, there are exceptions to this.

Miriam: Exactly. There’s an exception here for state-created danger, and I think it kind of makes sense. If a government actor creates a situation of risk or increases the risk, then that government actor and agency can be held more accountable. For example, just give a quick school example that might apply, let’s take Susie. Susie comes to her social studies teacher and she says, “Look, these two girls are being mean to me. They’re harassing me because of my skin color. Please help me.” The social studies teachers says, “Okay, we’re going to have a long-term social studies project, Susie, and I’m going to put you together with those girls. You’re going to be working with them, and you’re going to work out all your issues. You’re going to be together, you’re going to work out all your problems.”

Susie says, “No, they’re just going to bully me more,” but the teacher has made up her mind. Eventually, it does happen, Susie is bullied more. She brings a lawsuit, and she makes the claim against the teacher that the teacher’s actions increased the risk to her. That’s a kind of a situation where the court might say, “Okay, that might be a 14th Amendment violation.”

Lisa: What are some things that districts can do to avoid this type of action going forward? Consider like mediation or a change of class schedule, trying to find ways to keep the alleged bully away from the victim.

Miriam: Definitely. If you have a chance to change schedules so that the alleged bully and the victim are not in the same classes, that’s going to be usually a good idea. We always caution districts to be careful and not deprive the victim of education. You never want the parent to come back to you and say, “Look, you moved my kid from honors algebra to regular algebra because he was bullied, and now he’s being victimized again.”

Lisa: The other component that we often see constitutionally is equal protection.

Miriam: Thank you. The equal protection clause bars governments including school districts from discriminating against you based on your race, based on your protected category, based on your religion, race, nationality, ethnicity, disability status, or gender. In bullying lawsuits, the way this works is the student comes to court, the parents come to court and they say, “My child was discriminated against because the school district allowed the bullying to continue. My child was bullied because of his race. The district allowed this to continue and because they didn’t do anything about it, they were complicit in the bullying.” This actually is starting to work a little bit.

In the past, the courts did not want to get involved. They said, “Look, school districts discipline bullies, and they take care of the bullying situations in whatever way they see fit. We’re not going to get involved.” Now, more and more, probably over the last five to 10 years, Lisa, you and I are seeing cases where the courts are intervening and are saying that if a school district was deliberately indifferent, if administrators, teachers, if you were deliberately indifferent–

Lisa: That’s going to be the key standard here for those.

Miriam: Exactly. Deliberate indifference. If you’re deliberately indifferent, you might be held accountable in a court of law and deliberate indifference has a vague definition. It’s–

Lisa: Basically, clearly unreasonable. Clearly clear terms too, but clearly unreasonable response in light of the known circumstances. Again, known circumstances is going to need a very factual based analysis by the court.

Miriam: If we look at some examples of deliberate indifference, it might become a little more clear. In the Patterson versus Hudson case, Sixth Circuit case from 2009, we had a situation where the school district, there were actually a bunch of bullies, and each time the school district addressed individual children and that child stopped harassing the victim, but then a new one would pop up. The district just kept addressing the individual kids but did not look at the global picture, and the court didn’t like that. Also, in that situation, the school district had the child on an IEP and was providing the child specially designed instruction in a resource room for ninth grade.

The child was away from the bullies for ninth grade, and he had a great year. In 10th grade, it was a new principal appointed to that high school, and the principal said, “Hey, you know what, you don’t really need this special education. You don’t need this resource room, you’re just going to go back to the regular class.”

The parents were very upset. The parents said, “Hey, our kid is going to be bullied again.” The principal said, “It doesn’t matter. This is the classroom your child belongs in.” The court also looked at that situation and said, “School district, you knew what worked. You knew what worked for this child and you still took it away, and that was deliberately indifferent.” How about we take a look at an example of no deliberate indifference?

In the Port Huron School District, a 2012 case from the Sixth Circuit, the Port Huron School District had a pretty severe racial harassment problem. There were just for many many years black students, African-American children were exposed to slurs, graffiti, death threats, simulated lynchings, assault, for many years, and the school district did not do anything about those for a long time. Then a new principal was appointed, a new superintendent took over, appointed a new principal and the new principal pretty much took immediate action. He set up video surveillance, he got the police involved, he expelled students, he hired even a management consultant. He hired a consultant to help him with improving the climate of the district. He had parent conferences and training seminars. In the end, bullying still continued.

The parents sued, but the court said, “Look, this person was clearly not deliberately indifferent. Obviously, we’re not going to be able to stop all bullying. School districts are not obligated to end bullying everywhere, but they are obligated not to be deliberately indifferent.”

Lisa: The big thing I hear between these examples of deliberate indifference and no deliberate indifference is really the district’s proactive approach to attempting to make things better, attempting to resolve the issues?

Miriam: Yes, let me give you just a few practical applications of what we just talked about. School districts should avoid forcing mediation and forcing victims together with their bullies. Mediation is a good idea, but if a victim does not want to be with the bully in the same room talking about the issues, district shouldn’t force that. In cases of sexual assault, the Office for Civil Rights specifically does not want mediation to take place.

You’re going to keep an eye out for that whack a mole bullying that I just talked about. If one kid stops the bullying because you disciplined him, but then another one pops up, you want to keep an eye out for that and consider some global changes that we’ll talk about in a future episode. Then here’s just really the most important thing; some administrators, some teachers that we see just have an attitude, still. In 2017, they have an attitude of, “Kids will be kids.” When I hear that I always think, “Lawsuits will be lawsuits.”

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Miriam: That ship has sailed. That ship has sailed, and the kids will be kids’ attitude has to end.

Lisa: That’s the key area where investigation is so important, is just not making that excuse and not looking into it.

Miriam: Let’s just quickly talk about some of the federal laws. We talked about the constitution and how the constitution is brought in; in lawsuits, what courts think about when they’re looking at whether an administrator or a teacher violated the constitution. There are also federal statutes that protect victims of bullying. Title IX protects discrimination based on gender. Title VI prohibits discrimination based on race, ethnicity, national origin. Section 504 and the Americans with Disabilities Act prohibits discrimination based on disability.

There’s also another law, the IDEA requires schools to provide a free and appropriate public education. It’s not a discrimination law, but it does come up with bullying. I just did want to mention it here because it will come up later in our conversation.

Lisa: Obviously all of these are going to be intertwined and which ones are relevant are going to be based on the facts of the case and how they intertwine and the court looks at them very slightly.

Miriam: Exactly. In all these cases though, for Title IX and Title VI, the student has to show that he or she fell into a protected category and was harassed because of that category. The harassment was because of the race, because of the religion, or because of the gender and that the harassment was severe, pervasive, and objectively offensive so that it deprived the child of access to educational opportunities and benefits. More than that, if the child comes to court, if the child is in federal court or state court, typically in federal court, the child has to show that this district knew about the harassment but was deliberately indifferent. Again, we see that deliberate indifference statute come up.

Lisa: This is relevant with Title VI with Fulton and Western Brown case, right?

Miriam: This is a 2015 case from Ohio. We had a biracial middle schooler who was called racial slurs. He was subjected to many negative comments about African-Americans, even from teachers. The teachers were unkind to the child about his race, but the district’s policy required anti-harassment officers to investigate racial bullying. Instead, however, the district pretty much didn’t do anything. When the district saw that this was progressing, that the parents were getting increasingly upset and were getting ready to take their child out, the district pulled in an investigator from an outside agency. The investigator did a cursory review and found that the district did nothing wrong, but then it came out in the trial that this investigator had never done a bullying investigation before.

The court said, “This was deliberate indifference, the district should have taken more action, should have been more responsive to the parents’ complaint. That was deliberate indifference.”

Just one more, I guess one more example of when the court found no deliberate indifference, and then we’ll move on. Interestingly, in this situation, in 2016, Peterson versus Kramer, there’s a high school girl who becomes a victim after she reports a racial slur. Sometimes we see this. A student will tell somebody else about some discrimination or some harassment that another child experienced, and then the child who’s reporting now becomes the target and that’s what happens to this girl. She received emails, lynching threats, and she got into tiffs. Later on she was suspended and expelled for a fight.

The school district did take action though. The school district disciplined the student who initially used the slur. The school district got the police involved, and even placed hidden cameras to catch the bullies in the act. Also the school district offered accommodations, the school district asked this girl if she wanted to change schedules, if she wanted to have a staff member escort her to class, safety plan situation. The student did not want any of these, didn’t want a schedule change, didn’t want staff members escorting her between classes. The court said, “Look, this district was not deliberately indifferent. Look at all the steps they took.”

Lisa: You could hear just in that description all those proactive activities we talked about.

Miriam: Those are pretty much the federal laws. Now I do need to say that the Office for Civil Rights is the agency tasked with enforcing those laws. When an agency complaint is filed, the standard is a little bit lower. What we just talked about that a child needs to prove in federal court is going to be lower if a parent is just filing an agency complaint. The federal agency, the Office for Civil Rights has developed detailed regulations and investigates claims where the parents are not looking for money necessarily, but they just want the school district to change what they’re doing. Generally, the Office for Civil Rights requires districts to have detailed policies and procedures to inform parents and students of those policies, and also to have staff training.

Lisa: A lot of times I hear at least with districts that certain staff members might not know what their policies are, let alone how to follow them. Just having the policy alone isn’t going to be enough. The staff members that need to implement the policy really need to be trained in what it looks like, how to go through the process.

Miriam: Just a funny story. At one point I was involved in a deposition and the parents’ attorney, the victim’s attorney was getting a little hostile, and he pulled out the district’s policy, and he said to this teacher, he said, “Look, I don’t understand why you didn’t follow this policy. This policy clearly says that you should have taken the complaint, the bullying complaint, reduced it to writing and sent it to the Title IX compliance officer for your district. That’s what your policy says, why didn’t you follow it?”

The teacher turns to me in the middle of a deposition and she says, “Do we have a compliance officer for our district? Do we have a compliance officer?”

Lisa: Perfect example of not being aware of the policy or who’s in position to enforce it.

Miriam: You never want to be in that situation. If you’re a district administrator, you always want to make sure that your employees, your teachers, even your bus drivers understand your bullying policy and know exactly what they need to do.

Lisa: If it is like a teacher who maybe wouldn’t be the one to do the full investigation, that they know how to report it, who to report it to within what time period, those kind of details.

Miriam: I think those are the details that we’ll talk about next time. In our next session, we’ll talk specifically about the practical prevention steps that districts should have in place to minimize liability or even to prevent these lawsuits in the first place. We’ll also talk about the [music] practical immediate steps that administrators and employees, including teachers and bus drivers, should be taking right away when a parent complains about bullying or a student alleges that he or she was bullied.

Miriam: Lisa and I hope that you really enjoyed this podcast and that you will give us a high rating. You’ll rate as well on iTunes or Stitcher, wherever you get your podcasts from. If you look at the notes for this show, you’ll see our email. Please drop us a line, let us know what you thought, and let us know what other topics you’d like to see discussed on this show. Have a great day.

Lisa: The content of this podcast is provided for general information purposes only. The podcast is 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 upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.