BULLYING: Legal Issues & Practical Strategies

1. BULLYING:Legal Issues & Practical Strategies Presented by Jenny Wells and Shellie Crow

2. Why is the topic of bullying so important now? • National media attention • Federal Scrutiny on Response to Bullying • Oct. 2010 USDE issued the “Dear Colleague” bullying letter • Increasing number of Bullying complaints • Recent Texas Legislation – HB 1942 “Bullying Bill” and revised Board Policies

3. Board Policy FFI (local) • Defines “Bullying” • Requires District Employees to report bullying • Prohibits Retaliation against student or employee reporting bullying • Requires Principals and/or Designees to investigate claims and prepare a report (typically within 10 business days) • Allows parents/student to appeal a decision

4. Board Policy FFI (local) continued… If “Bullying” is confirmed: • Requires notice to parents of bullying AND victim • Requires Discipline and Corrective Action • Allows parent of victim to request a transfer of victim and/or bully • Requires District to offer counseling options to victim, bully(ies), and witnesses

5. Understanding & Defining Bullying • Bullying is more than the occasional back-and-forth that occurs when students engage in mutual misconduct or horseplay. • Bullying can include persistent or severe name-calling, teasing, threats or actual violence, and often includes the intent to hurt or harm the targeted student. • Under the revised Education Code and Board Policy FFI, Bullying involves an imbalance of power between the bully and the targeted student.

6. Secretary Arne Duncan said in 2010: Bullying is deliberate. The bully wants to hurt someone. Bullying is usually repeated, with the bully targeting the same victim again and again -- and the bully takes advantage of an imbalance of power by picking victims that he or she perceives are vulnerable…. A powerful testament to the fact that bullying is not part of the natural order of things is that most people can remember, even decades later, the feeling of being bullied or bullying another individual. Or they may feel haunted by the memory of standing by while a friend or classmate was bullied.

7. The Texas Education Code Defines Bullying as: • Engaging in written or verbal expression or physical conduct • That occurs on school property, at a school-sponsored or school-related activity, or in a vehicle operated by the district, AND • has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; OR • is sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student • IF THE CONDUCT ALSO: • exploits an imbalance of power between the perpetrator and the victim through written or verbal expression or physical conduct, AND • interferes with a student’s education or substantially disrupts the operation of a school.

8. Consider: • Where did the conduct occur? • How severe was the conduct? • How often did the conduct occur? Was it pervasive? Persistent? • Was the conduct intimidating, threatening, or abusive? • Was the targeted student physically harmed? • Was the targeted student’s property harmed? • Did the targeted student reasonably fear harm or damage to property? • Was there an imbalance of power? • Was there an educational impact on the targeted student? • Did the behavior make it difficult for the targeted student to participate in school?

9. When in doubt, err on the side of caution.

10. Student Codes of Conduct • A district’s Student Code of Conduct must prohibit bullying. • Conduct that doesn’t meet the definition of “bullying” may still require discipline and/or corrective action! • Other prohibited conduct included in your Code of Conduct: • harassment • engaging in threats • fights, scuffles, or assaults • forcing someone to act through duress, threats, or coercion • name-calling or slurs that could substantially disrupt the educational environment • making hit lists • a host of technology-related behaviors • Disruption of class

11. Remember! Even if the Code of Conduct prohibits bullying, by law a student who is a victim of bullying and who uses reasonable self-defense in response to the bullying cannot be subject to disciplinary action.

12. Bullying can also be a crime • Assault • Theft • Indecent exposure • Electronic transmission of certain visual material (sexting) • Sexual assault • Robbery • Terroristic threat • Online impersonation

13. New guidance from OCR “Dear Colleague” letter from October 2010 Various federal laws prohibit harassment and discrimination based on protected characteristics. (Section 504, Title IX) Bullying can constitute unlawful harassment based on race, sex, gender, national origin, and disability, and religion. School districts must take a comprehensive approach to address and eliminate unlawful harassment.

14. Bullying vs. Harassment Board Policy FFI states that if the conduct could be prohibited harassment under Policy FFH, refer to the appropriate individual Understand that conduct could be bullying, prohibited harassment, or both. Bullying does not have to “rise to the level” of prohibited harassment

15. Discrimination/Harassment prohibited by federal laws: • Schools are prohibited under federal laws from discriminating against students based on certain protected characteristics: • Title IX (sex/gender) • Title VI (race, color or national origin) • Section 504/ADA (disability) • Thus, a bullying claim may implicate federal anti-discrimination laws where: • 1) the student suffered peer-on-peer harassment; • 2) the harassment was based on a protected characteristic (sex/gender, race, or disability); • 3) the harassment was sufficiently severe, pervasive, and objectively unreasonable enough to create a hostile educational environment; • 4) the school knew of the harassment; but • 5) the school did not reasonably respond, or was “deliberately indifferent.”

16. Bullying, harassment, or both? Continuous, severe teasing of a student, with an imbalance of power, that disrupts his or her education is Bullying If the student is teased based on race, sex, gender, national origin, or religion – could be Harassment But harassment doesn’t require an “imbalance of power.”

17. Words of Caution • Investigate in order to determine if bullying occurred • What’s reported may just be “tip of the iceberg” • Staff must be aware of the board policy, aware of the duty to report, and to WHOM to report. • Careful for staff who may think they have “confidentiality” and not report (counselors, nurses) • Know if you are a “designee” (AP, counselor, sped Director, 504 Coordinators?)

18. Cyberbullying: Being cruel to others by sending or posting harmful material or engaging in other forms of social aggression using the Internet or other digital technologies.

19. Cyberbullying includes: • Flaming: online fights using electronic messages with angry and vulgar language • Harassment: Repeatedly sending nasty, mean, and insulting messages • Denigration: Sending or posting gossip or rumors about a person to damage his or her reputation or friendships • Impersonation: Pretending to be someone else and sending or posting material to get that person in trouble or danger or to damage that person's reputation • Outing: sharing someone's secrets or embarrassing information or images online • Trickery: Talking someone into revealing secrets or embarrassing information, then sharing it online • Exclusion: Intentionally and cruelly excluding someone from an online group • Cyberstalking: Repeated intense harassment and denigration that includes threats or creates significant fear

20. Fastest growing cyberbullying issues Stealing a password to a social networking site, then using another’s profile to post damaging information or rumors; Altering photographs to humiliate someone; Recording phone calls without an individual's knowledge, then posting the call online; Posting mean-spirited online polls about someone; and Posting hurtful and embarrassing information about others.

21. Off-Campus Bullying School districts may discipline off-campus misconduct if there is an actual disruption on campus or a reasonably forecasted substantial disruption When a school receives information about off-campus bullying, it is on notice that there is a potential bullying issue that could carry-over into the school environment. The district should proactively monitor the student’s on-campus conduct.

22. Searching Student Cell Phones You may confiscate a student’s cell phone at any time he or she uses it in violation of school policy. But looking at the contents of the phone is a search.

23. All Cell Phone Searches Must Be Justified at the inception (meaning there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school) AND Reasonable in scope (meaning the search must be related to the object being searched for AND not excessively intrusive)

24. Guidelines for Cell Phone Searches • If you confiscate a phone due to a policy prohibiting the mere use of a phone, you likely have no reason to look into the contents. • Consider how the cell phone use violated a school rule. • If you believe that a student may have a picture of a test on his phone, a review of the pictures would be appropriate. A review of the call log would not. • If you believe a student is arranging drug deals via text message, a search of the text messages is likely appropriate. A review of the pictures on the phone is probably not.

25. Responding to Allegations of Bullying Notification of alleged bullying Take immediate steps to investigate Take interim action to protect the targeted student Make a determination & prepare a report of your findings Inform the parents of the outcome of the investigation Take prompt & effective action to end the harassment, eliminate any lingering effects, & preventing future harassment Prevent retaliation

26. Receiving Notice of Alleged Bullying A student may notify a teacher, counselor, principal, or other district employee Any district employee so notified or who otherwise receives information that a student has or may have engaged in bullying must immediately notify the campus principal or designee orally or in writing In turn, the principal or the principal’s designee must put any oral complaint of bullying in writing

27. Investigating Alleged Bullying A common mistake is to make a determination about bullying simply based on the initial description of the conduct without further investigation. Even if the conduct does not seem to rise to the level of bullying or harassment, an investigation MUST be conducted. Each and every bullying claim must be treated seriously and thoroughly investigated.

28. Completing the Investigation The investigation should be completed within 10 district business days from the date the report is received. A written report of the investigation, including a determination of whether bullying occurred, must be submitted to the Superintendent or designee.

29. General Pointers When Investigating Bullying Take claims and allegations seriously – no matter how trivial they seem. Interview the parties and all possible witnesses, and be professional. The investigator must demonstrate by his behavior that the complaint is being taken seriously. Maintain proper documentation of the investigation, such as taking detailed interview notes or securing relevant evidence. Use discretion when talking to people in the course of the investigation. Don’t gossip about the claims or the people involved. Know when to get help. Treat all persons with dignity and respect. Remain neutral. Take immediate and appropriate action upon conclusion of the investigation.

30. Take Prompt & Effective Action Ideas for ending the conduct Separate the students Appoint an escort to take the students from class to class Take appropriate disciplinary action against the harasser Deny privileges Utilize safety plans or stay-away agreements Provide additional supervision Train faculty on constructive responses Involve the parents Involve law enforcement

31. Take Prompt & Effective Action Ideas for eliminating any effects of the conduct Provide training or other interventions to ensure that all students, their families, and school staff can recognize the conduct if it recurs and know how to respond Provide counseling for the targeted student and/or bully Provide additional services to the targeted student Redistribute policy FFI or FFH & make revisions if appropriate Publicize the means of making a report Conduct community outreach to improve the school climate

32. Take Prompt & Effective Action Ideas for preventing further conduct & avoiding retaliation Host class discussions Make sure that the harassed students and their families know how to report any subsequent problems Encourage the subject to contact a person in authority if the conduct continues Monitor the situation and conduct follow-up inquiries to see if there have been any new incidents or any retaliation Respond promptly & appropriately to address continuing or new problems

33. Student transfer as a means of addressing bullying Victims of bullying have the right to request a transfer to another classroom or a different campus. The bully may also be transferred to another classroom or a different campus. The transfer of the bully must be done in consultation with the bully’s parent, but the parents’ permission or consent is not required.

34. Special Considerations for Bullying Claims made by or against Students With Disabilities May be more likely to be bullied or engage in bullying-type behaviors May trigger obligations under Section 504 and ADA (harassment). May trigger obligations under IDEA (revisions to IEP, FBA, BIP) Laws may conflict (discipline, transfer) Different methods of reporting, investigating, and responding to parent complaints.

35. If bullying claim made by or against a student with disability: Is behavior impeding learning? Is placement appropriate? What about transfer requests? Have effects of bullying been addressed? Evaluate in all areas of suspected disability? Did the District Employee report in accordance with Policy FFI? Did the student claim “self-defense?” Does the IEP need to be revised?

36. cont: Do additional assessments/services need to be conducted? (FBA, counseling, Social Skills, self-advocacy) Does additional supervision need to be in place? Does a Manifestation Determination Review need to be held? Was the child denied FAPE? (T.K. v. New York Dept of Ed. case)

37. Additional thoughts regarding students with disabilities: Consider the effects on the student Objective v. Subjective May trigger a referral to Sped or Section 504 May prompt a request for Homebound Child Find Increase in litigation over the past year

38. When is the District liable? District liability for bullying is typically based on the same legal principles as liability for student-student harassment. There may be liability for the school district if the conduct must be so severe, pervasive & objectively offensive that it: deprived the victim of access to educational opportunities and benefits; school officials knew about it; and school officials responded with deliberate indifference.

39. Limiting Liability Ensure employees are familiar with policy FFI and FFH Ensure employees are trained to properly respond to allegations of bullying or harassment Avoid being deliberately indifferent

40. Responses That Should Be Avoided: That’s just the way kids talk to each other these days. He just has to learn how to fend for himself. If I have to look into every allegation of bullying, I won’t have time to do anything else. Boys will be boys. Girls are just mean to each other at this age. We can’t protect them from everything. Kids have always been bullied. It’s just part of life. I’m sure she didn’t mean it. If he just didn’t _____, then kids wouldn’t pick on him.

41. Districts should act upon any reported incident of: Bullying, possibly including off-campus conduct if school officials have good reason to believe the conduct will substantially disrupt school or incite violence (Policies FFH and FFI) Any conduct that constitutes sexual harassment or sexual abuse whether the conduct is by word, gesture, or any other sexual conduct, including requests for sexual favors. (Policy FFH) Harassment of any kind, including but not limited to, harassment motivated by race, color, religion, national origin, or disability directed toward another student or District employee. (Policy FFH)

42. Keep Your Perspective • Know and follow your policies and Student Code of Conduct. • Set the right tone on campus; prevention can be more effective than intervention. • Train staff to recognize bullying & harassment, to understand district policies, and to use procedures for addressing such conduct. • Develop a campus program to address bullying and harassment. • Encourage students and staff to report bullying and harassment. • Focus on the actual conduct and facts, not the labels given to it. • Incorporate students and parents in your anti-bullying efforts • Attend to the small stuff, don’t let it slide. • Establish procedures for conducting a timely and thorough investigation. • Document your investigation with a written report. • Take appropriate & effective remedial action; document your conclusions and any actions you take. • Follow-up with the parents of both the victim and the bully. • Involve police when necessary, but complete your own investigation too. • Contact legal counsel if the facts are complex or if the family alleges failure to address the conduct

43. Practice Makes Perfect Amy is picked on and called names by Brittany every day at lunch and during sixth period. Amy starts going to the nurse’s office during lunch and the counselor’s office during sixth period in order to avoid Brittany. If Amy tells the nurse or counselor that she is trying to avoid Brittany, or indicates in any way that she is being bullied, what are the obligations of the nurse, counselor, and/or school district?

44. Practice Makes Perfect Victor’s mother tells the ARD committee that she thinks her son is being bullied by boys in P.E. The ARD committee says that “bullying” should not be discussed at ARD, and the matter is dropped. Was this the correct approach?

45. Practice Makes Perfect Juanita’s dad calls the Principal several times to discuss alleged bullying by a classmate, Andrew, on the playground. The Principal looks into it, determines that Andrew did behave improperly towards Juanita, and that he even called her some sexually harassing names. He sends Andrew to ISS and moves Andrew into a different class so he is separated from Juanita. The Principal does not follow-up with dad, who later files a complaint of sex discrimination with OCR claiming he reported mistreatment of his daughter and the district “did nothing.” How could this have been handled differently?

46. Practice Makes Perfect Alex’s mother emails the Assistant Principal and tells him that Alex was called names and teased by a classmate on the bus. The Assistant Principal reads mom’s email and determines that the conduct described does not “rise to the level” of bullying, so he responds back “I’ll look into it,” but never does. What do you think of the Assistant Principal’s response?

47. BULLYING:Legal Issues & Practical Strategies Presented by Jenny Wells and Shellie Crow