As it is my hope to encourage attorneys who work in a variety of field to increase efforts to support students who are bullied I am going to provide a range of insight. To start, here is a Legal Protections for Bullied and Harassed Students Primer.
Deliberate Indifference to a Hostile Environment
Deliberate Indifference to a Hostile Environment is an extensive analysis of the issues related to deliberate indifference to a hostile environment under civil rights laws.
Sources of Liability or Remedies
The primary sources of liability or remedies include the following.
- Federal civil rights laws:
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex by an educational program or activity receiving federal funds.
Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin in any educational program or activity receiving federal funds. Title VI includes discrimination based on religion, if grounded in national origin.
Section 504 of the Rehabilitation Act of 1973 (Section 504) prohibits discrimination on the basis of disability in programs or activities receiving federal financial assistance.
The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination on the basis of disability.
- State civil rights laws.
- 42 USC § 1983.
Recent Guidance from the U.S. Department of Education’s Office for Civil Rights
During the Obama Administration, OCR and ED’s Office of Special Education and Rehabilitation Services (OSERS ) issued a number of Dear Colleague Letters and engaged in other initiatives that especially when combined, provide excellent insight for schools on the steps they should take to prevent discriminatory harassment and support students who are bullied. These include:
- 2010 Dear Colleague Letter Addressing Bullying and Harassment.
- 2011 Supportive School Discipline Initiative.
- 2012 Anoka-Hennepin Consent Decree.
- 2013 (OSERS) and 2014 (OCR) Dear Colleague Letters Addressing Students with Disabilities.
- 2015 Dear Colleague Letter Addressing Transgender Students. (Apparently no longer supported by the Trump administration.)
A document outlining my interpretation of this guidance is attached. In brief:
- The 2010 DCL informed schools that in addition to intervening with individual perpetrators, it was essential to also remedy the underlying hostile environment.
- The Supportive School Discipline Initiative stressed the importance of shifting from suspensions and explosions to more restorative interventions.
- The Anoka-Hennepin Consent Decree set forth comprehensive actions deemed necessary to remedy the hostile environment in that district.
- The DCLs regarding students with disabilities who both are bullied or engage in bullying set forth requirements for a comprehensive, team-based analysis of underlying concerns (that, in my opinion, should be done in all situations where students are being chronically bullied or engaging in bullying).
- The DCL on transgender students demonstrates the kind of in-depth analysis necessary for a school to accomplish to address concerns of an identified class of students.
In sum, this guidance in its entirety sets forth exactly what schools should be doing. In the Settlement Assistance services I am offering to both attorneys for plaintiffs and attorneys for schools, this is the guidance I rely on. Three other resources of guidance are:
National Research Council report, Preventing Bullying Through Science, Policy, and Practice.
Report by the American Educational Research Association, Prevention of Bullying in Schools, Colleges, and Universities: Research Report and Recommendations.
- A research-based professional resource, A Framework for School-Wide Bullying Prevention and Safety, published by the National Association of School Psychologists.
Federal Government Information Resources
StopBullying.Gov StopBullying.Gov is a web site maintained by the U.S. Department of Health and Human Services. Unfortunately, much of the information found on this site is based in a bullying prevention program that has been found to have marginal to no positive impact here in the U.S. This information has not yet been made public.
Key Components in State Anti-Bullying Laws In December 2010, Secretary of Education Duncan provided guidance on components in state laws and policies addressing bullying. Many states had, and now all 50 states have enacted anti-bullying laws.
Unfortunately, my perspective is that this has led school officials to believe that ALL they need to do is what is provided in these laws — adopt policies, tell staff to intervene, tell students to report, and investigate and impose punishment, if appropriate.
This perspective held by schools is wholly at odds with the guidance of OCR on the need to also address the hostile environment, use restorative interventions, and fully investigate with a team of educators the concerns of both students who are bullied and those engaging in bullying.
When you read my legal analysis, Deliberate Indifference to a Hostile Environment, it will become evident that several recent circuit court decisions raise these concerns — as does the arguments set presented in amicus briefs submitted by the National School Board Association — see below.
Having laws and a policy is only a foundation. If a hostile environment exists, which will be demonstrated by the fact that a student or group of students are being repeatedly treated badly, simply responding when students report will NEVER be effective remedying the harm!
National School Board Association
The National School Board Association has been playing a leadership role in seeking to prevent schools from being held liable. Unfortunately, contrary to the NSBA’s expressed interest in student safety, the NSBA has consistently taken the position that all schools need to do is respond to incidents that are reported by the student.
The following are some helpful documents that provides insight into NSBA’s thinking.
- NSBA response to 2010 OCR DCL.
- OCR response to NSBA’s response.
- Example NSBA amicus brief. The arguments made in this brief have become boilerplate–adapted to the other briefs filed. Note how NSBA uses its communications with OCR in the context of its argument.
I have developed some cogent arguments that can be used against arguments made by the NSBA or school districts in reliance on the NSBA approach. However, I will not provide them publicly.
42 USC § 1983
There are some significant challenges in the use of 42 USC § 1983 in these cases. These challenges were on display in the case of Morrow v Balaski (3rd Circuit, 2013).
Two theories of § 1983 liability are based on the Supreme Court decision in DeShaney v. Winnebago County Dep’t of Soc. Servs.: (a) an affirmative duty to protect someone held in state custody and (b) state created danger.
While the Court in DeShaney acknowledged a duty to protect persons in state custody, at this point in time only three classes of persons are entitled to such protection are prisoners, arrestees, and persons involuntarily committed to mental institutions.
Arguments have been raised that compulsory attendance laws create a “special relationship” between public school students and a school system that gives rise to such an affirmative duty. Thus far, such arguments have been unsuccessful.
Thus, it is necessary to establish such cases under the state created danger exemption. I have been developing some arguments to better support this cause of action that I choose not to make public.
Free Speech v. Hurtful Speech
School leaders often have to make decisions regarding how to handle a situation that involves student’s free speech rights versus issues of harmful speech. This is an article I have written on this issue.
Off-Campus Hurtful Speech
Many times, if a student or students are being hurtful to a student online, the school’s response is that there is nothing they can do about this. This is an inaccurate understanding of the case law.
The federal courts have held universally that school officials can intervene in student off-campus speech if that speech has, or foreseeable could cause a substantial disruption at school or interference with the ability of a student to receive an education.
There is some confusion in the minds of school leaders because they often want to impose discipline when students have attached them or a school staff member. In these situations, there is generally no disruption of students at the school — so they lose the case.
This is a link to a law review article I wrote addressing this issue, Student Online, Off-campus Speech: Assessing Substantial Disruption.
Articles for School Leaders
A Positive Approach to Address Bullying and Harassment. American Association of School Superintendents, The School Administrator 12/2014.
Rethinking Responses to Bullying District Administration 03/2016.
What are You Doing to Prevent Bullying? District Administration 08/2014.
Behind the Law: Beyond Resolving Bullying Incidents District Administration 05/2013