Episode Ten: Bullying and How to Minimize Liability

Continuing our series on bullying, Lisa and Miriam talk about ensuring that your district is in the best position when faced with a bullying lawsuit or agency complaint. Policies, paper trails, and anti-bullying programs are important features of a comprehensive approach to this nationwide challenge.

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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: Today, we’ll continue talking about bullying. We’ll talk about practical strategies and practices to minimize your liability in case of a lawsuit or an agency complaint related to bullying.

Miriam: Specifically, today we’re going to talk about the role of policies, the importance of having detailed paper trails and then also briefly touch upon anti-bullying programs.

Lisa: Before we dive into that, let’s just remind our audience about the difference between agency complaints and lawsuits. Lawsuits, this happens when parents or students file a complaint in federal or state court alleging that they were harmed because the district was negligent or deliberately indifferent about bullying. An agency complaint is a little bit different. This is when the parents complain to the office for civil rights, which is a federal agency or a state agency such as the Ohio Department of Education. The parents complain saying that this bullying somehow affected their child’s education and an investigation should ensue. That’s the goal of an agency complaint.

Miriam: Keep in mind too sometimes these are intertwined, it often happens there’s a complaint with an agency and then after all of that’s been concluded, it may turn into a lawsuit down the road as well.

Lisa: Absolutely. They’re not mutually exclusive. Today, our ideal goal obviously is prevention of bullying in the first place, let alone an agency complaint or a lawsuit. Obviously, there’s no foolproof way to prevent these allegations that come up even when maybe there isn’t any bullying. Really our focus today is just to discuss what are the strategies and things to have in place to really put you as a district in the best position possible, should you receive a complaint with allegations.

Miriam: Yes, in other words, we’re not going to be able to prevent all bullying. We have some tips, but most of our suggestions today will be, like Lisa said, to put you in the best position when, not if, a complaint or lawsuit comes your way.

Lisa: Yes, unfortunately that’s where the state of this lies. Let’s get started with our first area to talk about which is anti-bullying policies, which is super important, you’ll hear us in many episodes talk about board policies and how important it is that you know what those are. First of all, related to bullying, many states are going to require that you have a policy on this in the first place, but even if that’s not a requirement, you still are going to want to have a detailed policy related to bullying complaints and what needs to happen when that occurs.

Miriam: Exactly, for example, Ohio has a model anti-bullying policy that all school districts are supposed to follow and implement. Just for example, the policy includes details about definitions, what is bullying, the different kinds of bullying, racial bullying, gender-based bullying. There’s a lot in those policies typically about the steps that are taken, how long you have to start the investigation, what the investigation entails, who has to complete or oversee the investigation and then notifying the parents. We’re not going to go through every component of the policies because I’m sure most of our audience is familiar with the fact that policies exist.

Lisa: Most of the districts that we worked with already do have policies in place. It’s not necessarily that those need to be changed, but the key component is really to have staff that know all the details of what are in those policies. Know that you have the policies in the first place because I can’t tell you how many times we do run into, more so when we get into the litigation and maybe are doing some prep with a witness or something, and realize that the staff members goes, “I didn’t know we had that policy,” or, “I didn’t know I had to take those steps.”

Miriam: Here’s a story. I was once defending a deposition, there was a teacher and she was being deposed by the parents’ attorney. The parents’ attorney took out the district’s policy and said, “Why didn’t you follow this? Here it says explicitly that when there’s a bullying complaint, you need to reduce it to writing. It needs to be sent over to the compliance officer, the title nine coordinator. You didn’t do this. Why didn’t you do this?”

The teacher is baffled, she turns to me in this deposition [chuckles] she says, “Miriam, do we have a compliance officer? Do we have a coordinator like that?” That’s not a good position to be in. You don’t ever want to be in that position. That means that not only do you have to have a policy, but your staff, everyone needs to know what their obligations are according to that policy. When I say staff I just mean everybody, from teachers, to bus drivers, to guidance counselors, to school psychologists, to assistants, to aides, everyone needs to know. Everyone who works with children and who potentially can see bullying or can receive a bullying complaint, those individuals all need to know what their obligations are.

Lisa: That’s going to include even your staff such as administrative assistants.

Miriam: Definitely.

Lisa: You’re going to have to think outside the scope of just your teachers and inside the classroom.

Miriam: Courts and agencies look to see if you have a policy, but that is just really the floor. That’s the floor of what they look at in my experience. They also will take a good look at whether the individuals in the school district followed that policy and knew what that policy was. That will be an important part of protecting yourself.

Lisa: Yes, I would say that generally is a really key component as were all the steps followed? Were the timelines followed?

Miriam: Exactly. Good.

Lisa: Which leads us to how do you even demonstrate that you followed all those steps? As you’ve heard us discuss before in other episodes, you have to have paper to demonstrate it because keep in mind these complaints and lawsuits don’t always come up the day after something happens, the week after, the month after. We’re talking generally a decent amount of time frame before we really are well into one of these lawsuits and needing to have the evidence to demonstrate you did what you needed to do.

Miriam: I feel like, Lisa, really, half the time of our episodes, we are just stressing that documenting everything. You need to have a great paper trail. It’s really so important in this area, in bullying, there’s needs to be– Part of it I think is that districts really do a lot. Administrators, they’re not deliberately indifferent. They loved kids.

Lisa: Hey, I’m going to interrupt you for a second, that language you just used, deliberate indifference. I think that’s really important for this topic. Let’s just give a brief explanation of that.

Miriam: Deliberate indifference, we talked about this a little bit last time. Deliberate indifference is a clearly unreasonable response in light of the known circumstances. That’s the standard that courts will look at and agency complaints will start with, whether or not district employees, district administrators were deliberately indifferent. Here’s what, I think that the people who are in education, they’re not there to be deliberately indifferent. They love kids, and they often do the best thing. I always say, I want you to get credit for that. I don’t want to just go into space. I want there be a record and I want you to get credit for everything that you and your staff did.

Lisa: Right, we absolutely don’t want to be settling a case or getting an adverse ruling because you simply just don’t have the documents to back up that you did what you needed to do.

Miriam: Like you were saying, these bullying lawsuits, especially federal and state, they can be brought for quite a long time after the incident. For example, federal bullying complaints can brought two years after the student turns 18. At that point, everybody who is involved, most people are not going to remember anything. Let’s say you have a fifth grader, a fifth grader who was bullied and then she comes with the complaint when she’s a senior, when she’s a junior. That’s a long time. People will have retired, people will have moved on, people will have died.

Lisa: Even beyond that, everybody remembers events differently in the first place, we find. When you add that substantial amount of time in between, there’s so many facts that can get lost in translation when you don’t have a concrete document to look back at.

Miriam: We had a situation. Sometimes I think administrators accept the blame. They’re in that mode where they just want to appease parents, they want to make everything go away so they accept the blame a little bit even when they shouldn’t. We had a situation where again, it was quite a few years that passed and the question was whether or not an administrator disciplined two students who were involved in bullying. The administrator said, “No I didn’t. I messed up. I let it go to law enforcement and I didn’t take care of it within the school.”

When we looked into that, I looked at the documents, I just really spent so much time. What I ended up piecing together was that this person wasn’t even the principal for those students. That person wasn’t even responsible [chuckles] to be meeting out discipline. He just took it upon himself to admit something that made him look bad and it wasn’t even true. I think that’s really a function of not having the documents at your fingertips.

Lisa: One more important thing about reducing these complaints to writing is this is going to be an area where you really are going to want to have pretty much a standard form to use. You’re not going to want to rely on your documentation being in emails or in a little notebook that you kept. Really, you’re going to want some standardized form that all staff can document in the same way.

Miriam: Let’s say Susie’s mom, she calls you up at 9:30 in the morning and she says, “Hey, my daughter was bullied on the bus.” You don’t want to just respond to that by email, you don’t want to just verbally say, “Hey, I’m going to get back to you.” You want to document that. You want to have a specific bullying complaint form that is at your fingertips and it’s available everywhere. Some districts have it online–

Lisa: Well, and available everywhere, not just that form, but also when we talked about the policies and the procedures and all of that, you’re going to want to make sure that those are available in all these places too for parents, students, whoever might potentially make a complaint.

Miriam: Exactly. This is a common mistake. People just write emails, they’ll write some things or write a note in a notebook and it’s not enough because, especially when we come in. Nobody wants to see us Lisa, we’re not the favorite people that everybody wants to see, but when there’s a complaint, people are happy to see us because we’re the ones who can help take care of it for you. It’s much harder for us if the documents are stored only by the bully and not by the victim. You know what I mean?

Lisa: What do you mean by that?

Miriam: What I mean is that many districts have a discipline documentation system, like an electronic system where let’s say Bobby is bullying Susie, so the investigation takes place and all of it is documented in Bobby’s file, whether it’s electronic file or paper file. There’s a record saying, “Bobby was disciplined on this and this day for making fun of somebody on the playground because of their skin color. He got three days suspension or whatever,” but there’s nothing in Susie’s file.

When Susie complains, five years later, we’re looking at the records and we don’t see that we documented anything about Susie’s complaints. All we see is Bobby’s stuff and sometimes Bobby’s stuff won’t even say Susie. It won’t have her name in it, so we have no idea. It looks like nothing happened in terms of Susie but obviously it did.

Lisa: Well and more than just for our stance when we’re involved in litigation, you’re also going to want to keep this type of documentation stored in both fashions for the victim and for the bully or alleged bully for other reasons such as even your own internal investigations so that you can see if there’s trends is–

Miriam: Yes, trends are important.

Lisa: Is the victim being bullied by multiple different people over a long period of time? Is there a certain person that’s becoming a repetitive bully and getting complaints and interacting with multiple different students? If you only store them by one stance versus the other, you may not have that comprehensive look back.

Miriam: One example of that that we’ve come up against is sometimes districts don’t have communication between different buildings and that can be a problem. I know many teachers, many guidance counselors, when they receive a new class, they don’t want to know anything about the kids, they don’t want to know anything about the history, they just want a clean, a blank slate for that child. I think that’s a pedagogical judgment call that that can be a good decision, but the flip side of that is if a child was bullied, let’s say in elementary school and now they’re in middle school–

Lisa: Yes, I would say middle school is probably the key place this is problematic because they’re only there maybe for two years. You have a short period of time versus having a look back to what happened in the four or five years they might have been in an elementary building.

Miriam: Right. Let’s say the middle school teacher doesn’t want to know anything about the students and then what could have happened, what did happen in this case is that the parents’ attorney eventually down the road said, “Hey.” This was a claim. Part of the claim was, had you communicated well, had your elementary school guidance counselors and teachers communicated about this bullying with the middle school staff, then the middle school staff would have been able, would have kept a closer eye, would have noticed the bullying, wouldn’t have been deliberately indifferent. That’s something to keep in mind.

Lisa: Yes, absolutely. Let’s dive into our third more preventive measures than some of the others we’ve talked about so far, but having an anti-bullying program in place and how imperative this is, one, for prevention of these instances occurring in the first place. Also this is going to be a key thing that we know agencies like to see in place as well.

Miriam: Agencies and courts, the court decisions that I’ve read, I would say, just the vast majority of ones that came out in favor of the schools, where the court said, “No, you weren’t deliberately indifferent.” So many of those, Lisa, that I’ve seen, they mention the anti-bullying programs. They’ll say, “Oh, this district wasn’t deliberately indifferent to bullying. Look, they had this anti-bullying program and that anti-bullying program, so we’re going to find for the school, not for the parents.”

Lisa: Right, basically they’re looking, do you have something in place? Generally they would like to see something evidence-based and definitely age appropriate, but things that you’re talking about on a regular basis with the students and just having things in place where you can legitimately say we have an actual program to try to prevent, to try to educate on these topics.

Miriam: They like to see a global component. Last time we talked a little bit about responding to individual situations and how sometimes that’s not enough. Sometimes the courts want to see that you had a global-prevention strategy and one relatively easy one is these anti-bullying programs. There’s really just so many ready-set canned programs for districts to buy and to implement. That’s especially true at the middle school and elementary school levels. I’m not really, I don’t know, Lisa, if you’re familiar, but I’m not familiar with many high school programs.

Lisa: Well and keep in mind too, even if you don’t have one of these ready-made programs, ready to use, you can still develop your own. You’re just going to want to make sure it’s not, “Oh, we just held one assembly about the topic.” That it’s really more comprehensive and the more you can include components for teachers, for students, for parents and have more of a holistic approach, at least from my experience, that’s going to be more beneficial than the actual prevention component.

Miriam: Here’s something that I thought of that I wanted to tell our audience. I think many people listening to this program are administrators, superintendents, board members, and they can affect an entire district. They can implement an anti-bullying program for everyone, but then I think many people listening are not at that administrative level. They might be teachers, they might be guidance counselors, they might be school psychologists.

What I just want to emphasize so much is that you too, if you’re a teacher or a guidance counselor, you too can help with all of this. You can implement an anti-bullying program in your class.

Lisa: Absolutely, yes, we can have it on a broad district level, but then also on building levels, class levels. If your building already is dealing with PBIS, Positive Behavior Intervention Support, you can tie it into the program you already have established for that.

Miriam: Then in that case, even if the district doesn’t yet have an anti-bullying program, what you will have done will be so helpful, not only to just protecting yourself as a district employee, but helping the entire case. I can’t tell you how many times we’ve seen a school district, a case be successful, win the day just because of one person.

One person or two people, maybe they didn’t see themselves as major players, but they saved the day because they did something on their own. They had a program with their class, they did something with the fourth grade and that really saved the day. The message is here, don’t just think, “Well, I’m not an administrator. I’m not a superintendent. I can’t do this. I’m not in charge of the anti-bullying policies or programs.”

Lisa: Absolutely, that small level is definitely going to have a big impact and just remember prevention with proactive strategies and then your documentation are really going to be key for you.

Miriam: Another thing I wanted to point out is that some school districts have programs that are not specifically anti-bullying programs, but they’re just very general. I know some places have like Rachel’s Challenge or Be A Leader and these are programs that generally talk about– sometimes they’re just volunteer programs after school and sometimes they’re programs but–

Lisa: Are you talking more like positive citizenship type programs?

Miriam: Yes, exactly. They’ll just have different things every month, don’t litter and then they’ll have something about bullying maybe in October because it’s anti bullying month. Courts typically, what I’ve seen is, that’s good, that’s better than nothing, but courts like to see something specific to bullying with modules, let’s say on a regular basis that talk about bullying. What is bullying, how bystanders should be responding, why it’s harmful, different types of bullying, cyber bullying, and so on. The ideal program would not just be for the kids, it would also be for parents and for teachers. I know sometimes that’s difficult, but it’s so worth it.

Lisa: Absolutely, especially in the day and age of a lot of the cyber bullying and things that might happen outside of school as well.

Miriam: Yes. Let me just say one more thing here about surveys. I think this is just a good caution. Surveys are great. Sometimes you’ll have a district wide survey about bullying or it will include a bullying component like, do you feel safe in school? Then the kids answer and they circle from one to five, how safe they feel in school or sometimes we’ve seen just classes do this, a guidance counselor will come into fourth grade and say, “Okay, we’re going to have this survey. We’re going to find out if there’s bullying in this class.”

Court’s like that because just like the anti-bullying programs, it’s a global approach. It’s a global strategy. You want to, you’re not deliberately indifferent, but here’s my caution, [laughs] after you get these surveys, after the surveys are completed, I want you to treat the results as a bullying complaint. If there is something like that in there, we’ve had this before where a fourth grade teacher, I don’t know, maybe it was fifth grade teacher gave out a survey and the kids filled it in and then she put them in a closet.

She read them and if she saw something that really jumped out at her, she said, I think, if it was several times, if a student’s name came up several times, she would talk to them in the hallway and say, I guess, don’t be a bully. The rest of the documents, the rest of the forms, she put them in a closet and they only came to light when there was a bullying lawsuit from a different student, completely, not even in that class. As part of discovery, as part of giving over all our documents, the opposing counsel, the parents’ attorney said, “Okay, I want everything that relates to bullying that was ever done in this district for the last five years.” The court agreed and said hand it over and we found these documents in the closet and there were just really some appalling things. Many kids just wrote silly things, but definitely had three or four where it was like, my friend is African-American, she’s being bullied on the playground and she’s so sad, she just wants to kill herself and these were just in the closet.

Lisa: The caution is those almost look like incidents that deliberate indifference might be found because you had this information and you did not act on it.

Miriam: Yes, or you acted in a way that was clearly unreasonable. I think that just putting all the surveys in the closet [chuckles] might be seen as a little unreasonable.

Lisa: Basically other than just putting them away, just make sure that you’re following up on what’s in there if you’re giving these surveys.

Miriam: Okay, let’s just sum it up. You want to have a policy, you want to make sure everybody knows about your policies, all of the staff is familiar with the steps they need to take, you want to have a detailed paper trail, you want to document in great detail, as much as possible, everything that you’ve done, the forms that you completed when the parent or student first came to you, the investigation that you’ve done and the response, the outcome of the entire investigation. Then you want to have global approaches such as anti-bullying programs ideally on the district level, but if not, at least on the building level, I would say.

Lisa: We hope some of these practical strategies get you thinking and have some things in place to make your practices more defensible. We hope you’ll join us next time when we tackle some ways to intervene and investigate when there is actually a complaint about bullying.

Miriam: Also, I want to tell everybody, we’ve had so much positive response to our podcasts, to our episodes, and if you like this, please send us an email, tell us what else do you want to hear about. If you have any interesting points, any insights, go ahead and email us. Our email is in the show notes for this podcast and we would love to hear from you. Also, of course, give us a good rating on iTunes, okay. The more good ratings we get, the higher up we are in their algorithm and next time we’re going to talk about actual what to do when a bullying complaint comes in. What are the immediate steps that you should be taking, that your staff should be taking? We’re going to go through those really clearly and we’ll also talk about what happens if your investigation cannot substantiate the complaint. What happens when you find that there is no bullying. Tune in, we’ll talk to you about that next time.

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.

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