Posted by Maria Mangicaro
Bullying Prevention Advocate
Can schools be held legally accountable for student bullying? If so, under what circumstances?
These tough questions have emerged alongside increased awareness of the detrimental effects of bullying. While almost all states have passed new, or strengthened existing, anti-bullying laws, many districts, in the face of rising family legal action concerning bullying, remain unclear regarding legally compliant policies and best practices.
EducationWorld offers the following primer for school leaders concerned about civil liability for bullying and harassment. Schools are encouraged to consult their districts’ legal counsel for information and advice regarding applicable state and federal laws.
Bullying vs. harassment
First, it’s important to note the difference between bullying and legally defined harassment. While we can all agree that any form of bullying is undesirable in a school setting, harassment occurs only when students are bullied based on personal characteristics that trigger special federal protection—namely gender, race or disability. Bullying that constitutes harassment is specifically prohibited by federal law.
It is therefore harassment-related student bullying that when left unchecked by school officials, poses the greatest legal risk. In the Leadership Insider article “School Liability for Bullying & Harassment,” article authors Seamus Boyce and Andrew Manna explain that if schools face the following five circumstances, they are legally liable for peer harassment:
- The bullied student is a member of a “protected class” defined under federal civil rights laws—these classes include gender, race and disability. (While his/her sexual orientation would not technically place a student in a protected class, note that in some court cases, students who were bullied for “nonconformity to gender stereotypes” have successfully claimed sex-based harassment.)
- The peer harassment was based on the students’ membership in a protected class (e.g., a student was repeatedly mocked for having a developmental disability).
- The harassment was severe, pervasive and offensive (this standard takes into account both severity and frequency; if severe, even a one-time incident can qualify).
- The school (an official with authority to act) had knowledge of the harassment.
- The school was deliberately indifferent to the harassment.