Increase Risk for Harassed or Bullied Students
There is an increased need for attorneys to assist K-12 students who are being harassed or bullied in U.S. schools.
Despite over a decade of attention to this concern, efforts of schools to reduce bullying and harassment have had marginal to no positive impact. The percentage of students reporting they have been bullied on the national Youth Risk Behavior Survey has not declined since 2009. Both the Southern Poverty Law Clinic and Human Rights Campaign have reported increased concerns of harassment of minority students in recent months.
Bullying and harassment of students is recognized as a public health concern due to the well-documented harms to students’ learning, as well as life-long emotional and physical well-being.
It is highly probable that efforts of the federal government to protect the interests of students who are being bullied and harassed, especially the U.S. Department of Education’s Office for Civil Rights (OCR), will be substantially reduced.
To prevail in these cases will require successfully combating the common defense of schools — that every time the student reported, the principal investigated and responded. The effectiveness of this defense was evident in two recent circuit court decisions in the 4th and 6th circuits.
Based on both research insight and agency guidance, this level of school response is entirely insufficient to adequately respond to the specific hurtful situation and to correct the hostile environment that is supporting the ongoing harm.
Upcoming Video Training
Advocating for Students Subjected to Discriminatory Harassment or Bullying at a Time of Increased Risk
The video training will answer the following questions:
- What legal protections are available for students who are being bullied or harassed in schools?
- What are the key elements necessary to establish a case for discriminatory harassment under federal or state civil rights laws?
- How can I use U.S. Department of Education Office for Civil Rights Dear Colleague Letters and other guidance to support my case?
- How can I use research insight into bullying and the current lack of effectiveness of schools to support my case?
- What are the harms sustained by students who are harassed in a pervasive or persistent manner and how can I best establish these harms?
- How can I establish that both the principal and teachers had knowledge that the student or students were being pervasively or persistently harassed and that a hostile environment existed in the school for this student or group of students?
- How often are school staff also abusive to students or ignore hurtful incidents and how can evidence of this support my case?
- How can I establish that the school was deliberately indifferent to the concerns of this student or group of students and failed to correct the hostile environment that was supporting the ongoing discriminatory harassment?
- What is the history of the often successful “every time the student reported, the principal responded” defense offered by schools and what are best strategies to combat this?
- How can and what should school officials do to respond to cyberbullying?
- Given that SCOTUS has advised that courts should not “second guess” the actions of school officials, how can I introduce expert testimony and other evidence to support my claim that the school was deliberately indifferent to the harassment?
- How can I best propose a settlement strategy that will hold the school accountable for the harms they have caused, provide remedy for the plaintiff, and result in an improved school climate that will benefit other students?
The detailed outline of what will be addressed is here.
See information about the presenter below.
About the Video Training
This training is under development. It is probable it will be around 2 hours. Look for the training late-March.
It is not feasible to have this webinar accredited by the various state bar associations. However, most bar associations will allow an attorney to submit documentation to obtain units for a course that has not been accredited. A process will be established to document your participation and provide appropriate information on the webinar to support your receipt of appropriate credit.
Trial Consultant or Expert Witness Services
Nancy Willard, M.S., J.D.
Nancy Willard is a former special education teacher of “at risk” students and former attorney, who was a member of the Oregon State Bar.
She has focused on issues of digital safety, bullying, and cyberbullying since the mid-90’s. Since 2012, when it was becoming clear that school prevention efforts were not achieving a favorable result, she focused her attention on exploring the research regarding why this is the case and what can be done to improve school efforts.
This research insight relates directly to the deliberate indifference of schools to situations where students are being bullied and harassed.
She has sought to inform school leaders through articles in such publications as the American Association of School Administrators’ School Administrator and District Administration. You can review her resume here.
Given the profoundly increased need for legal support for students and the apparent challenges in prevailing in these cases, she has launched services as a trial consultant or expert witness as of 2017. She has also initiated efforts to establish a “collaborative” of other experts in this field who can provide services for attorneys or agency staff.
Services are available for:
- Attorneys who are supporting students who have been suffered discriminatory harassment or bullying.
- Civil rights agency staff for investigation and development of remediation plans.
- Attorneys working for school districts in developing a meaningful settlement plan.
Nancy’s focus is on achieving the following:
- Schools are held accountable to remedy the harm inflicted by students or staff on a student or students.
- Hurtful situations within schools and online are effectively addressed to allow students who were targeted and, to the fullest extent possible, those who have been hurtful to continue to be part of a school community–with a full resolution of the concerns.
- The school engages in comprehensive efforts to remedy the hostile environment that has created concerns for the targeted student–and quite likely other students
Nancy’s preference is to work as a trial consultant. She can also serve as an expert witness. As a trial consultant, it is her intent to assist with investigation and discovery in a manner that obtains the necessary information rapidly and expeditiously.
Trial consultant supports to plaintiff counsel:
- Detailed questionnaire for the parent/student. This can be provided to the parent/student to complete–thus reducing attorney time. This questionnaire solicits detailed information that is based on the necessary requirements for establishing causes of action, as informed by research.
- Recommendation on a pre-filing investigation approach.
- Assistance in drafting of complaint.
- Recommendations of interrogatories for key school personnel and requests for production. This approach can obtain necessary information in a manner that is more cost effective than depositions.
- Recommendations for questions for deposition, if necessary.
- Preparation of draft settlement memorandum setting forth facts and legal analysis–with final to be prepared by attorney.
- Further case assistance, if settlement is not achieved.
Additional services are these:
- Guidance to attorneys representing schools in situations where free speech concerns have been raised either in the context of disparaging speech on campus or off-campus speech.
- Case analysis and development of a recommended settlement agreement in bullying or harassment cases for attorneys representing schools.
- Investigation and settlement guidance to agencies that are responding to student complaints.
These are some resources Nancy has written related to legal issues and bullying, harassment, and cyberbullying:
- Legal Protections For Bullied and Harassed Students Primer.
- Deliberate Indifference to a Hostile Environment
- Office for Civil Rights Guidance
- Free Speech v. Harmful Speech
- Student Off-Campus Speech: Assessing Substantial Disruption Albany Law Journal of Science and Technology (2012)
- School Response to Cyberbullying and Sexting: The Legal Challenges. BYU Education and Law Journal (2011)
- Legal and Ethical Issues Related to the Use of the Internet in K-12 Schools BYU Education and Law Journal (2000)
Nancy is no longer a member of the bar. She cannot and will not provide any legal guidance to parents or others.