Bullying is one of the worst things that can happen to a child. They come to school, ready to learn and make friends and someone picks them out of a crowd to pick on and ridicule them in front of their peers. People may say that words may never hurt, but this simply is not true. The damage done from bullying has far reaching consequences that affect a child long after they have left the school environment and headed out into the world. So where do schools stand regarding the law and what power do they have to thwart bullying? Learn more on Bullying and the Law in the US!
When a child is singled out and bullied, it is important to consider the law and know what recourse of action schools, parents, and others have to take in order to keep from feeling powerless in the situation. Laws are there for a reason-to protect people. So to understand schools and the law as they pertain to bullying, it is important to look at a few USA case studies.
In Gebser v. Lago Vista Independent School District (1988), the Supreme Court ruled that bullying in some cases constituted sexual harassment, in a situation where one was a school employee and the victim was an under aged student, even though the situation occurred off-campus. What constituted harassment was the fact that it was someone in a position of authority over the young person, and no one did anything about it. The young girl brought suit against the school district. But failure to produce reliable proof that the school knew about it made the ruling be in favor of the school. However, the person involved was sued for damages as an individual.
The Court, in this case, ruled that in a situation where the school did not know about the bullying or harassment, they cannot be held liable. But, if they had known, the school could have been sued, with particular defendants named in the case, in the event it was found that school officials in fact, did know and did nothing to stop it. This should send a clear message to schools that bullying in some cases is legal harassment, and suits can be brought forward and won on a preponderance of the evidence, if it is shown the school or school officials were negligent in bullying cases, even when it involved incidents which occurred off-campus.
In Davis v. Monroe County Board of Education (1999), the Supreme Court determined a school board was liable in such cases when there was student harassment, perpetrated from a fellow student, when it acts with what they termed “deliberate indifference” toward the bullying act. This decision was arrived at especially because of the fact that the harassment was so severe that it barred the student’s access to an equal opportunity in education or benefits. This is important to note here, (and the Court pointed this out too), that this decision by the Court ruled something to be harassment and explained when such harassment would constitute a legal action for which the school board would be held liable, but went on to remind schools that this did not mean that this exonerated schools from the responsibility of doing the right thing, even in cases where there was no clear legal liability involved.
The messages of these two cases teach us that, with Bullying and the Law in the US, the high courts of the USA determine when bullying constitutes harassment to be a situation whenever schools either know about the bullying and do nothing to stop it, or allow an incident of bullying to get so severe that it gets in the way of a student’s right to a free public education and opportunity.
Notwithstanding, it reminds schools that these are just 2 cases of bullying which ended up with the courts. There are several others. But they all seem to have the underlying theme that schools ARE responsible for what happens in their schools regarding bullying and they have a moral, ethical, and legal responsibility to do something about it, whenever it occurs. The bottom line is: When an incident of bullying is brought to their attention, do they push it under the carpet or do they deal with it, and punish the offenders? How well they can honestly answer this question will determine whether their argument will stand up in court or not.
Negligence, in layman’s terms is knowing to do something to prevent or thwart a problem, but choosing not to. Adults in their standing in the school have a responsibility and an obligation to kids, parents, and the community to stop any type of harassment or bullying whenever they see it, and wherever it occurs.
The Law and schools ideally work together, so that they complement one another. They are not meant to be enemies of each other. If those in charge make sure laws are being followed to everyone’s best ability, less cases will get by people, so that they do their part to create and maintain a safe environment for kids.
In a more recent case of Bullying and the Law in the US involving a technology issue, in T.V., M.K. Smith-Green Community School Corporation (North Dakota Independent School District, Aug. 2011), the First Amendment and the Free Speech issue came up in a case regarding “sexting.” Students were suspended from extracurricular activities for posting some inappropriate and provocative images on a social media website for all to see. The result of this case is surprising. The Court found that the incident violated the students’ right to free speech and expression, because it was done off-campus and did not grossly interfere with the educational process, nor did it bring any hardship on the administrative officials or their disciplinary procedures, because it was done completely off-campus and had nothing to do with anyone at the school. The Court further found the punishment to be too harsh and the students were reinstated.
When Federal courts override in the affairs of schools, there is often a conflict of interests and it becomes difficult to have any real sense of authority at the district level. It may also interfere in the perceptions of the public and how strong the districts are to stand against the Law in cases when the incident clearly violated public decency mores. However, violating morals in the minds of the public is not what bullying and discrimination laws are about. And, while we may not agree with each and every decision made by the highest courts of the land, the same rules that hinder some forms of discipline from being carried out, as in the above case, also protect schools and empower them with their own discrimination and bullying cases when they need to.
For example, if a student was the victim of the social media posting, and it created such a hostile environment for the student that they could not continue their education normally and it was disruptive to the educational process, then schools would usually have the upper hand in applying the discipline needed to remove the accused bullies from the school or proceed with legal action against the perpetrator of these actions.
However, since the actions done by the young people in the T.V. M.K. case did not constitute discrimination or bullying toward a particular school student or employee, the Court had ruled that they were within their rights. If we think about it, the same rules that prevented the young people in this case in North Dakota from being sued for bullying type acts is the same rule that allows schools to seek legal action against bullies today. The key is that is has to constitute either true discrimination or an act so vicious that the person is barred in some way from participating in their public education or activities. Therefore, we do not always agree with the outcome of the law, but the law is the law and it protects individuals from discrimination and harassment, whenever those definitions apply.
The key then for schools is to make sure that something is indeed an act of either harassment or bullying that constitutes a situation where the victim is directly harmed either directly or indirectly from the act of bullying, barred from some function, not allowed to continue his or her education in the way they should be able to, or some other negative and detrimental result.
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So where do schools stand in the light of these decisions? They should definitely document whatever happens, and document what they did, being vigilant to detect and punish bullying wherever they see it, while realizing at the same time that it must meet the bullying standard in order to be considered bullying in the eyes of the laws in the USA.
Here are the 5 bullying standards that an event or incident must hold up to, in order to constitute bullying that can result in a negative legal action:
1) The student is protected as a minor, and is identified in a specific group, due to gender, race, or disability.
2) The harassment from peers is based upon discrimination law regarding the specific group.
3) The harassment is so severe that it hinders the victim from carrying on in a manner that allow them to continue their education, or engage in certain pursuits without the fear of being harassed or bothered.
4) It is shown that a school official had the knowledge of the harassment, but did nothing about it.
5) The school did not pursue the proper channels to punish the perpetrator or remove them from the victim, thereby allowing the harassment to continue.
While this test may vary in different aspects of the law and schools, this is the general rule or “harassment test” which will decide if a student or other is guilty of true harassment, or if it is a type of bullying that requires only discipline at the district level only.
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So, with these examples of discrimination and the law and schools’ ethical right to punish or not to punish, we are forced to look at every case individually, even as educators dealing with children on a daily basis. Still, safety must come first. In cases of where bullying constitutes a clear and present danger to children or others in the school system, the courts generally uphold such decisions in favor of the plaintiff. However, if the case involves incidences of free speech and First Amendment rights, it takes into account with careful deliberation whether the incident of bullying constituted enough of a clear and direct discriminatory act that the person could not live peaceably within the environment without serious negative consequences. Knowing this, especially in cases when a school has to bring an incident before a court, it is imperative that careful documentation has been done along the way, so that there will be clear evidences of harm or potential harm that could come to an individual due to the incident of bullying, either now or in the future.
The bottom line for schools is to make sure they are diligent in documentation, carefully considering what needs to be done, and being careful not to be negligent in any cases of bullying, while realizing that not all cases can or should end up in the courts. If careful documentation has been done, it will go a long way toward preventing such incidents in the future.
It is important in the final analysis not to consider every bullying case the same, not to assume every bullying case is a case of discrimination or harassment, and that some situations are only the responsibility of the school district.
In such cases, where the courts fear to tread, it becomes even more important that schools stand up and punish those who have clearly disregarded the rights of others in cases of bullying.