Student bullying brings about many concerns and issues for schools and their administrators. One of these issues deals with liability. Are schools liable for student bullying? If so, under what circumstances?
Though schools are encouraged to consult their districts’ legal counsel for information and advice on this matter, the following information can give schools an idea of the legal issues they can face from bullying instances.
One understanding school administrators must have is the difference between bullying and harassment. Bullying that constitutes harassment is specifically prohibited by federal law. These instances of bullying pose the greatest legal risk for schools.
According to the Leadership Insider article “School Liability for Bullying and Harassment” there are five situations that place a school liable for student bullying.
1. The bullied student is a member of a “protected class” defined under federal civil rights laws, including gender, race and disability.
2. The peer harassment was based on the students’ membership in a protected class
3. The harassment was severe, pervasive and offensive.
4. The school (an official with authority to act) had knowledge of the harassment.
5. The school was deliberately indifferent to the harassment.
The school still may be found liable even without having knowledge of the incident due to a claim of school negligence under state law.
Another liability issue may not come from the person being bullied, but the person who is doing the harassing. This liability stems from the First Amendment right to free speech.
This puts schools in a difficult position. According to an Education World article schools are likely to avoid legal problems if they:
1. Take reports of bullying and harassment seriously, investigate them, promptly enact safety plans for student targets and monitor these plans to ensure effectiveness;
2. Ensure that every aspect of the harassment situation—from the initial report to the investigation to the administrator response—is well documented;
3. Train students (who are more likely than adults to directly witness bullying) to serve as teachers’ and administrators’ supplemental “eyes and ears;” and
4. Work hard to create a school climate incompatible with bullying, so that everyone in the building takes notice and knows what to do when bullying occurs.
By keeping these steps and the First Amendment in mind, schools should be able to avoid legal liability in bullying instances.
To learn about how Alert Solutions can help anonymously track and document school bullying instances, download our Speak Up Brochure today!