Insight for Attorneys

Harassed or Bullied Students

There is an increased need for attorneys to assist K-12 students who are being harassed and 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.

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. 

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), are being 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.

I have worked for several attorneys who have litigation against schools on these issues. This is a statement setting forth their comments on my work.

Resources

These are key resources I has written related to legal issues and bullying, harassment, and cyberbullying:

This is an article I co-authored that recently appeared in AAJ’s Trial magazine. Cyberbullying: From Schoolhouse to Courthouse.

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:

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:

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.

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.

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.

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.

Other Law Review Articles

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)

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