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    Children in School:
    Bullying: Fighting Back

    Bullying is an age-old problem that likely will never disappear but individuals increasingly have ways to respond and protect themselves without raising their fists. Learn how schools, parents, and communities are fighting back.

    William L. Brown

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    Child bullyingSisters Brittany and Emily attended Blackhawk School District in rural Pennsylvania. In 2008, the sisters became the target of relentless bullying from another student, Shaquana. Shaquana harassed Brittany and Emily at school, at home, and on social media. Brittany and Emily were subjected to racial attacks, physical assaults, and constant harassment. The bullying was so severe the local district attorney charged Shaquana with assault, terroristic threats, and criminal harassment. Nonetheless, Shaquana remained at school and the bullying continued.1

    The sisters’ parents met with school officials, who said they could not guarantee that Brittany and Emily would be safe at school. School administrators suggested that the sisters consider moving to a different school. The parents moved their daughters and sued Blackhawk School District in federal court, alleging due process violations.

    The district court dismissed the case. The parents appealed to the Third Circuit Court of Appeals, which affirmed, noting, “public schools, as a general matter, do not have a constitutional duty to protect students from private actors.”2 The court further stated that, “Indeed, the increasing prevalence of the kind of bullying alleged here has generated considerable discussion and legislative action. Nonetheless, the Constitution does not provide judicial remedies for every social ill.”3

    In Wisconsin, bullying is quite prevalent. Twenty-four percent of high school students report being bullied at school. Seventeen percent report being “cyber bullied.”4 Despite these numbers, very few bullying cases result in litigation. A survey of Wisconsin appellate cases in the area of bullying produces little guidance.

    Bullying: New Face – Old Problem

    Bullying in schools is a complex issue. Bullying is not new. What is new is the relentless, all-consuming power of the Internet and social media. Bullying has traveled from the playground to the ubiquitous computer monitor, tablet, and smartphone. Social networking has changed the very definition of “communication” for young people. Bullying inflicted via social media is eternal. Pictures, comments, and posts are permanent, digital testimony to the humiliation of harassment.

    As the Blackhawk case demonstrates, schools, parents, lawyers, and judges are struggling with this problem. No federal or state law prohibits bullying. Even defining “bully” is difficult.

    In some, often extreme, cases, criminal statutes provide some relief. Wisconsin police and courts have used existing laws that prohibit harassment, unlawful use of telephones, and unlawful use of computerized communication systems in an effort to halt bullying.

    The law has begun reacting to the scourge of bullying in Wisconsin. Wisconsin Statutes section 118.46 requires school districts to promulgate policies addressing bullying.5 This statute does not, however, provide an enforcement mechanism. In 2013, three bills dealing with bullying were proposed in the Wisconsin Legislature. Among other things, these bills would have imposed a civil fine on school employees who fail to report bullying, modified the definition of cyber bullying, and mandated teen-dating-violence prevention education. None of these bills were ever called for a vote.6

    Some cities have taken matters into their own hands. Monona, Wis., recently became the first city in the United States to pass a municipal ordinance prohibiting bullying and fining parents of bullies.7

    For many students, recent legislation has not done enough. Attorneys are employing existing law in claims against schools for failing to prevent bullying, prompting school districts to reassess bullying and discipline policies.

    Addressing Bullying in Public Schools Using Existing Law

    There is no comprehensive law against bullying. Parents and bullied students may not recover against a public school district for having been bullied (although extreme cases might support common-law tort claims). Public-school employees, because they are public employees, have immunity from most tort liability. When bullies target students who are members of protected classes, however, existing discrimination laws might provide recourse against schools.

    Title IX – Sex and Gender Discrimination Protections. Title IX of the 1972 Education Amendments protects students in federally funded schools from discrimination based on sex or gender.8 Sexual discrimination in public schools could include sexually based jokes, harassment, touching, or written materials. Gender discrimination is similar but might also include harassment based on a student’s not conforming to sex-based stereotypes.

    The U.S. Supreme Court has established a procedure for prosecuting Title IX bullying claims. In Davis v. Monroe County Board of Education, the Court permitted a bullied student to recover against the school district by showing 1) the school was deliberately indifferent to known acts of harassment; and 2) the harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the student of access to educational benefits or opportunities provided by the school.9

    School districts might avoid liability against claims brought under Title IX by appropriately addressing bullying complaints. A school is liable only for failing to appropriately respond to bullying after it receives notice. There is no bright line regarding either notice or appropriate response. Courts have responded favorably to schools making targeted, good-faith efforts to eliminate bullying.10

    Courts frequently rule in favor of school districts. Recently, Judge Stadtmueller of the U.S. District Court for the Eastern District of Wisconsin dismissed a Title IX bullying case. The judge stated:

    “There will always be spats between children. Certain children will always say and do nasty things to one another. Try as they might, school officials will not be able to stop this, either, even if courts such as this one were to begin holding schools liable when their students engaged in reprehensible behavior. No matter how many judgments courts may hand out, the often cruel nature of children will still prevail over newly propagated rules and instructions.”11

    Title VI – Race-Based Discrimination Protections. Title VIof the Civil Rights Act of 1964 protects students from discrimination based on race, color, or national origin. Title VI claims are rare. Lawyers have generally used Title IX in sex-based bullying claims. A student alleging public school failure to protect against recognized discrimination under Title VI must show the following: 1) the school was deliberately indifferent to known acts of harassment, and 2) the harassment was so severe, pervasive, and objectively offensive it could be said to deprive the student of access to educational benefits or opportunities provided by the school.12

    School districts must be vigilant for allegations of protected-class bullying. Recently, a New York jury awarded $1.25 million to a student who had been subjected to racial harassment throughout his time in high school. There, bullying included use of racial epithets, vandalism, physical attacks, and threats of lynching.13 The school responded by disciplining the bullies, but the court found that the school failed to take reasonable action to address the “pervasive atmosphere of racism” in the school.14

    Section 504 Rehabilitation Act – Disability Protections. Harassment based on disability, including bullying, is discrimination prohibited by section 504.15 The U.S. Department of Education has defined disability harassment for purposes of section 504 analysis as “intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student’s participation in or receipt of benefits, services, or opportunities in the institution’s program.”16

    To prove a case under section 504, the plaintiff must prove that “(1) [he or she] is an individual with a disability; (2) he or she was harassed based on that disability; (3) the harassment was sufficiently severe or pervasive that it altered the condition of his or her education and created an abusive educational environment; (4) the defendant knew about the harassment; and (5) the defendant was deliberately indifferent to the harassment.”17

    Public schools failing to adequately respond to bullying of students with disabilities risk section 504 liability. The law generally requires that schools act in good faith to make reasonable accommodations to resolve disability-based bullying.18

    IDEA Claims – Protections for Students Receiving Special Education Services.The Individuals with Disabilities Education Act (IDEA) requires school districts to provide free and appropriate public education to students with disabilities.19 The IDEA requires public schools to develop an individualized education plan (IEP) for students with qualified disabilities. An IEP details how a school will provide free and appropriate public education to a particular qualified student.20

    In situations in which bullying of a special-needs student is so severe that the student cannot benefit from the educational services provided by the school, courts have found the student was denied a free and appropriate public education.21

    William L. Browncom bb Kasieta William L. Brown, U.W. 2011, practices at Kasieta Legal Group LLC, Madison. His practice includes civil litigation, education law, business formation, and personal injury. He is on the board of the State Bar’s Civil Rights and Individual Liberties Section and the board for YMCA Camp MacLean in Burlington, Wis.

    The IDEA does not require bullying to be specifically based on a disability.22 Nor is there any requirement that bullying satisfy the “severe and pervasive” standard required in most other causes of action.23 The IDEA is concerned with the ability of a student with special needs to receive a free and appropriate public education. As a result, IDEA claims are easier to prove than claims of Title VI, Title IX, or section 504 bullying.

    Claims brought under the IDEA might also sound in other statutes. Bringing an IDEA claim, however, might be preferable because it can be brought at the state administrative level and might be processed more quickly. In Wisconsin, IDEA claims alleging that a student is being denied a free and appropriate public education can be litigated in an administrative due-process hearing in the Department of Public Instruction (DPI). A due-process hearing is often fully adjudicated within a few months. Complainants who prevail can seek actual attorney fees.24

    In a particularly severe case in New York involving a bullying claim brought under the IDEA, the U.S. District Court for the Eastern District of New York provided specific guidelines to school districts:

    “When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination.”25

    Schools confronting bullying of a student who has an IEP must move promptly to resolve the issue. The IEP team should meet as soon as possible. The IEP should address the bullying issue and provide a solution for continuing to provide a free and appropriate public education to the student.

    Private School Bullying

    Private schools receiving federal funds are subject to the same laws as public schools.26 Students bullied in private schools can also pursue common-law tort claims against the school and its employees. Private schools are not governmental entities, and so they and their employees have no immunity.

    Bullied students can consider bringing claims of negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, negligent supervision, negligent training, and negligent hiring. In extreme cases, these claims will trigger punitive damages.27 Unlike limitations imposed on public school claims, bullying in private school need not be based on a protected class. A private school has a common-law duty to exercise reasonable care. Private school administrators ignore bullying complaints to their financial detriment. Few limitations encumber claims against private schools.

    There is greater opportunity to pursue bullying claims against private schools, and private schools also have more discretion in addressing bullying. Unlike public schools, they may expel students without due process or just cause.

    Advice to Students, Parents, and Their Lawyers

    Students, parents, and lawyers confronting bullying should work with school districts to resolve the issue. If the school fails to take appropriate action, victims and their families should make more formal, written requests for relief to school officials, and they should document every incident of alleged bullying. Bullying claims require that school districts had notice of the bullying. In demands for relief, complainants should suggest reasonable solutions to the bullying problem. Even if the suggested solutions are not implemented or are implemented but are not successful in eliminating the bullying, they will provide helpful evidence of the ease with which litigation might have been avoided.

    If bullying persists, students should consider all state and federal claims. If the bullied child has special needs and has an IEP, the student should consider bringing a due-process complaint with the DPI. If bullying presents immediate danger to a public-school student, parents might want to transfer the student to a private school. Courts might award compensation for this expense in extreme cases.28

    This article does not seek to promote litigation against school districts. In many cases, bullying issues can be resolved outside the court system. Parents and students should not be concerned that cooperating with their school will jeopardize their rights. Attorneys representing students should heed the same advice. The parent/school relationship is not necessarily adverse. Cooperation among the parties can often lead to amicable, productive solutions.

    Advice to School Administrators, Teachers, and Their Lawyers

    Schools and school districts should implement policies to address bullying. As part of these policies, schools should 1) provide an individualized response to each case within those policies; 2) train all staff to recognize bullying; 3) impress on staff the need for immediate intervention to stop bullying; and 4) hold annual continuing-education programs to discuss bullying issues and interventions.

    Many schools have benefitted from parental-notification programs that provide written notice to parents of students involved in bullying – the victim and the bully. Such notification should be accompanied by a call from an administrator to address the problem.

    School districts should document every bullying incident. Detailed, written notes of the event and the response provide a defense. Many claims fail when a school demonstrates that it was not deliberately indifferent to harassment. This is not a high bar, but it requires proof.

    Allegations of school misconduct in bullying situations can be devastating to a school district. Putting aside the financial costs of litigation and settlements, a school involved in such an incident will often suffer a blow to its reputation. Particularly in situations in which families may have options such as open enrollment or access to private voucher schools through choice programs, schools would be wise to take every step to guard the district’s standing in the community. From a purely cost/benefit viewpoint, it is less costly to implement strong bullying policies and prevention strategies than deal with the consequences of a bullying lawsuit.

    Conclusion

    Bullying in our schools need not pit students against schools. All share a common goal — a safe environment for students to receive an education. Litigation can result from a dispute about how much a school must do to address bullying, or even, what constitutes bullying. Students, parents, schools, and communities can resolve bullying outside the unpredictable confines of litigation. Failing that, parents and students will look to courts for protection. School districts, not bullies, will then be the targets of litigation.

    Endnotes

    1 Morrow v. Balaski, 719 F.3d 160 (3d Cir. Pa. 2013).

    2 Id. at 170.

    3 Id. at 176.

    4 Youth Risk Behavior Survey, 2011, Wisconsin Dept. of Public Instruction.

    5 The DPI model bullying policy can be accessed by going to Wis. DPI, Bullying Prevention Resources, and clicking on “DPI’s Model Bullying Policy.” The DPI model bullying prevention program can be accessed at the same web page, by clicking on “DPI’s Model Bullying Prevention Program.”

    6 News8000.com, Doyle, Shilling Discuss Bullying Bills in La Crosse, (June 12, 2014).

    7 Monona, Wis., Municipal Ord. No. 5-13-645 (adopted May 20, 2013). The ordinance reads, in part, as follows:

    “Bullying is a form of harassment and is defined as an intentional course of conduct which is reasonably likely to intimidate, emotionally abuse, slander, threaten or intimidate another person and which serves no legitimate purpose. … It shall be unlawful for any person to engage in any bullying or harassment of a person or induce another person to engage in such bullying or harassment.”

    8 20 U.S.C. §§ 1681-1688.

    9 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (U.S. 1999).

    10 See generally Doe v. Bellefonte Area Sch. Dist., No. 4:CV-02-1463, 2003 WL 23718302 (M.D. Pa. Sept. 29, 2003).

    11 N.K. v. St. Mary’s Springs Academy Inc., Case No. 12-CV-1052-JPS, Doc. No. 35, p. 4 (2013).

    12 Zeno v. Pine Plains Cent. Sch. Dist., 2009 U.S. Dist. LEXIS 42848, at 4-5 (S.D.N.Y. May 19, 2009).

    13 Id. at 2.

    14 Id. at 7.

    15 U.S. Department of Education, OCR, Dear Colleague Letter: Reminder of Responsibilities under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (July 25, 2000).

    16 Id.

    17 Long v. Murray Cnty. Sch. Dist., 2012 U.S. Dist. LEXIS 86155, 84 (N.D. Ga. May 21, 2012).

    18 See generally, M.P. v. Independent Sch. Dist. No. 721, 326 F.3d 975, 982 (8th Cir. 2003).

    19 20 U.S.C. §§ 1400-1482.

    20 See generally T.K. v. New York City Dep’t of Educ., 779 F. Supp. 2d 289, 309 (E.D.N.Y. 2011).

    21 M.L. v. Federal Way Sch. Dist., 394 F.3d 634, 650 (9th Cir. 2005).

    22 T.K., 779 F. Supp. 2d at 317.

    23 Id.

    24 Wis. Stat. § 115.80(9).

    25 T.K., 779 F. Supp. 2d at 317.

    26 Parker v. Franklin Cnty. Community Sch. Corp., 66 F.3d 910, 917 (7th Cir. 2012).

    27 Wangen v. Ford Motor Co., 97 Wis. 2d 260, 267, 294 N.W.2d 437, 442 (1980).

    28 20 U.S.C. § 1412.




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