Holding schools accountable for bullying

As an attorney and school psychologist, I am frequently reminded that bullying is a serious problem in schools. According to the American Academy of Child and Adolescent Psychiatry, close to half of all children will experience school bullying — as a bully, victim, or bystander — at some point when they are in primary or secondary school. At least 10 percent of students are bullied regularly, and those with disabilities are at an increased risk. Every child’s legal right to an education includes the right to a safe learning environment that is free from bullying. Here’s what parents need to know about holding schools accountable for bullying and when parents can take legal action.

Bullying can be physical (spitting, hitting, making mean or rude hand gestures, taking or breaking someone’s belongings); verbal (name calling, spreading rumors, teasing, offensive graffiti, threats to cause harm); emotional, social, relational (social exclusion, embarrassing someone in public, spreading rumors); or cyberbullying (sending insults or threats electronically).

To constitute bullying, the behavior must cause serious physical or emotional harm — such as depression, excessive absenteeism, deterioration of general physical health, and lower grades or withdrawal from school. In addition, generally, the behavior must have been repeated or have the potential to be repeated over time.

Bullying is basically a form of intimidation or domination towards someone who is perceived as being weaker. Students have described bullying as when “someone makes you feel less about who you are as a person.” The occasional hurtful taunt, teenage drama, or bickering among peers with equal power — although upsetting — is not legally considered bullying.

A school district could be liable for bullying that occurs on school property or at a school-sponsored event such as a field trip or athletic event. School property includes school buses. The question as to whether a school must address bullying that takes place off school grounds and not at a school-sponsored event is not always clear and depends on the facts of the case.

There are a number of federal and New York State laws and school district policies that address bullying. School districts’ policies are usually on the schools’ websites and in student and parent handbooks. Schools must provide parents with a copy of the policy if requested.

The Dignity for all Students Act is a New York State statute designed to provide all school-age children with a safe and supportive environment free from discrimination, intimidation, taunting, harassment, and bullying on school property and at school functions by a student or employee. It also applies to cyberbullying on or off school property that creates a risk of bullying on school property.

This statute is triggered when a school district employee witnesses or receives a report of bullying. A designated school administrator must then conduct or supervise a thorough and prompt investigation to determine if material incidents of bullying occurred that creates a hostile environment. If the school’s investigation finds that an incident occurred, the school must take prompt action, reasonably calculated to end the bullying, eliminate any hostile environment, create a more positive school culture, prevent recurrence of the behavior, and ensure the safety of the victim.

In addition, if the bullying constitutes a crime, the act requires that the incident be reported to the police. The victim or parent may want to request a meeting to address any remaining concerns and that the situation be monitored carefully. They should send a letter or e-mail to the administrator after the meeting to confirm the concerns that were discussed and any actions that the administrator agreed to take.

New York State law does not require that parents be provided with a report of the findings of the investigation, although some schools’ policies provide for such. Parents can always request in writing that they be provided with a copy. In addition, parents and students over the age of 17 can access the report under the Federal Educational Rights and Privacy Act. Under this act, the school must provide access to the requested document within 45 days of receipt of a written request.

There are also federal statutes that protect students who belong to certain protected classes from bullying — Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act protect students with disabilities; Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin; and Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex.

A school district can only be liable for bullying if it had actual notice or, in some cases, should have known about the bullying. It is important for parents to put the school on notice of any bullying occurring on premise or at school-sponsored activities by sending written, detailed notice of the bullying to the principal and superintendent as soon as possible. Parents should extensively document in writing incidents of bullying, the complaints about the incidents made to the school, and the school’s responses.

There are a number of legal options that parents can take after they have notified the school that their child is being bullied and the school does not take sufficient action to stop the bullying. Parents can file a complaint against the school district and, in extreme cases, such as that involve assault with a weapon, pursue a criminal investigation. Before filing a lawsuit, it is important to consider that litigation could be highly stressful. For some children, a lawsuit may be too emotionally difficult, whereas for others it is emotionally positive and empowering. It is recommended to consult an attorney as to legal options.

For additional information about bullying in schools, see www.stopbullying.gov and consult an education lawyer.

Felicia Lebewohl Rosen is a special education lawyer with the law office of Ronald E. Stiskin & Associates, P.C. and is a certified school psychologist. She can be contacted at felicia@stiskinlaw.com.