BULLYING AND HARASSMENT
Bullying and harassment can have an extremely detrimental effect on a student's education. Research increasingly shows that the harmful effects on a child can be deep and long lasting.
The first and most important step for parents to take is to make sure the bullying has stopped, however that can be accomplished. If school officials and/or the board of education is not cooperative after repeated attempts, this may require a withdraw or transfer of the student-victim.
Once the imminent situation is handled, parents may consider whether school officials and/or the board of education acted appropriately. Schools are not responsible for bullying, per se. However, when school employees are made aware of harassment, they are obligated to take steps to correct it and to make sure that it does not continue. If the school fails in this regard, there may be legal remedies available to the student-victim.
If a school board has adopted policies that perpetuate bullying and/or harassment, the school can be held responsible. The school can also be held responsible if its anti-harassment or anti-bullying policies have not been followed or applied appropriately. If a school employee or coach is the harasser, there may be additional criminal and civil remedies available.
If you believe that you or your child has been the victim of bullying or harassment, and the school failed to protect you or your child, call our firm for a free consultation.
FEDERAL CLAIMS FOR BULLYING
Below is an outline of the types of federal claims that are typical for bullying and harassment.
BULLYING BASED ON RACE/NATIONAL ORIGIN
Title VI of the Civil Rights Act of 1964 (Title VI)
• 42 U.S.C. § 2000d et seq.
• Prohibits discrimination on the basis of race, color, or national origin (not religion).
• “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
BULLYING BASED ON DISABILITY
Section 504 of the Rehabilitation Act of 1973 (Section 504)
• 29 U.S.C. § 794 et seq.
• Prohibits discrimination on the basis of disability.
• “No otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Title II of the Americans with Disability Act of 1990 (Title II)
• 42 U.S.C. § 12131 et seq.
• Prohibits discrimination on the basis of disability.
• “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
Individuals with Disabilities Education Act (IDEA)
• 20 U.S.C § 1412(a) et seq.
• Liability for the denial of special education services based on a failure to provide a “free appropriate public education” (FAPE) to a student with a disability.
• “A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.”
BULLYING BASED ON SEX OR SEX STEREOTYPES
Title IX of the Education Amendments of 1972 (Title IX)
• 20 U.S.C. § 1681 et seq.
• Prohibits discrimination on the basis of sex/gender.
• “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
• Sexual orientation: OCR guidance and developed caselaw has made clear that sexual orientation is covered under Title IX’s prohibition of discrimination based on sex.
• Generally, Title IX covers two types of discrimination:
o Sexual harassment: “Unwelcome conduct of a sexual nature, which can include unwelcome sexual advances, requests for sexual favors, or other verbal, non-verbal, or physical conduct of a sexual nature. OCR Revised Sexual Harassment Guidance (Jan. 19, 2001).
o Gender-based harassment: “Gender-based harassment includes acts of verbal, non-verbal, or physical aggression, intimidation or hostility based on sex-stereotyping, [which may involve] harassing a student for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity.” Id.
TITLE IX – “DELIBERATE INDIFFERENCE TO KNOWN HARASSMENT”
• Victims must establish the following elements for a prima facie case of sex-based harassment under Title IX:
(1) The school was deliberately indifferent to known acts of harassment; and
(2) The harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to educational benefits or opportunities provided by the school. Id. at 633, 650.
• Courts have applied this same standard to harassment based on race, color, and national origin under Title VI, and disability under Title II/Section 504.
CONSTITUTIONAL CLAIMS FOR BULLYING
Below is an outline of the types of constitutional claims that are typical for bullying and harassment.
42 U.S.C. § 1983
• Bullying based on race, color, national origin, sex, disability, or religion may also be actionable through 42 U.S.C. § 1983.
• “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State… subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
EQUAL PROTECTION CLAIMS
• State shall not “deny to any person within its jurisdiction, the equal protection of the laws.” 14th Amendment, Section 1.
• The Sixth Circuit recognizes two methods of proving an equal protection violation based on a school official’s response to known harassment:
(1) The DISPARATE TREATMENT of one class of students who complain about bullying as compared to other classes of students. Soper v. Hoben, 195 F.3d 845, 852 (6th Cir. 1999), and
Based on Sex: A male plaintiff claiming gender discrimination must introduce evidence that his complaints of peer harassment were treated differently by school officials than female students’ similar complaints. Id. at 852.
Based on Sexual Orientation: A plaintiff claiming discrimination on the basis of actual or perceived sexual orientation must show s/he was “treated differently from students who were not, or were not perceived to be, homosexual.” Nabozny v. Podlesny, at 457 (7th Cir. 1996); See also, Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1096-97 (D. Minn. 2000).
(2) A DELIBERATE INDIFFERENCE to known harassment. Shively, at 357.
“Substantially the same” as the deliberate indifference standard applied in Title IX cases. Williams ex rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360, 369 (6th Cir. 2005).
SUBSTANTIVE DUE PROCESS CLAIMS
• State may not “deprive any person of life, liberty, or property, without due process of law.” 14th Amendment, Section 1.
• Probably the most difficult of all bullying claims to prove, because generally, school districts do not have a constitutional duty to protect students from peer harassment, except:
o When the STATE CREATED OR INCREASED THE DANGER that an individual would be exposed to harm by others. Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006).
Must be an affirmative act; A failure to act is not sufficient.
The affirmative act must “shock the conscience.” Id.
SCHOOL AND EMPLOYEE DEFENSES TO BULLYING CLAIMS
Qualified Immunity for School Employees
• The defense of qualified immunity shields government officials performing discretionary functions from liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
o “Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation.” Id.
o Provides for an interlocutory appeal (which can get expensive).
• “Defendants cannot be shielded from liability where they took meager steps they knew to be ineffective to address severe and pervasive harassment that went on for years.” Shively v. Green Local Sch. Dist. Bd. of Educ., 579 F. App'x 348, 356-57 (6th Cir. 2014).
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