According to The Register-Guard, school districts across the country have faced lawsuits in recent years for failing to do more to prevent student-on-student bullying and harassment. Some state and national experts say the new expectations, while well-intended, have invited lawsuits, placing school officials in a “damned if you do, damned if you don’t” situation. As the local lawsuits suggest, school districts can now be sued for doing what they have previously been sued for not doing.
The irony is that school districts are mandated by law to impose serious consequences for harassment and bullying in order to prevent hostile education environments for victims of such conduct, several education experts said. “The risk management topic of the year is the issue of harassment, bullying and communication with parents,” said Geoff Sinclair, Director of Claims for the Special Districts Association of Oregon. The organization administers Oregon school districts’ self-insurance fund for legal claims. “Schools are often put into a very difficult situation where, if they discipline Johnny a certain way for perceived harassment, they’re going to get sued. I think most districts are doing what they believe is best for kids and letting the chips fall where they may.”
Oregon School Boards Association (OSBA) Attorney Morgan Smith called the issue “very tough ground for schools, because you do see bullying on the forefront of everybody’s mind. And there’s nothing new about parents getting upset over discipline for their kids.”
Though there are no solid statistics, anecdotal reports indicate an “obvious increase” in the number of lawsuits filed against school districts over students bullying other students, according to NSBA General Counsel Francisco Negrón. Negrón publicly raised concerns about the financial impact of such suits after the U.S. Department of Education (ED) issued an advisory letter to the nation’s school administrators in October 2010, urging schools to be more aggressive in eliminating student-on-student harassment and the “hostile environment it creates.”
Negrón wrote to ED in December 2010 expressing concern that ED was advocating a more “expansive reading” of schools’ legal role in preventing harassment. He said he feared the step would “invite misguided litigation that needlessly drains precious school resources and creates adversarial climates that distract schools from their educational mission.”
In particular, Negrón raised concern over ED’s suggestion that school districts “can and must” consider comments made off school grounds when disciplining students. OSBA Attorney Smith shared that concern. “School officials don’t want students to be bullied,” he said, but “there are also a number of rights that an alleged bully has. Free speech off-campus is one of those rights.”
“It’s difficult for schools to draw a line between what is something affecting kids at school and what is off-campus conduct by individual students,” Smith added. “Schools can only really take care of what happens inside the schoolhouse. They can’t really police what happens at the mall on the weekend or in cyberspace at night.”
Izzy Kalman, a New York school psychologist, has become a nationally recognized critic of policies requiring adult legal intervention in student verbal altercations. “Schools are being held responsible for the impossible: making kids stop fighting with each other,” he said. “It’s very important to distinguish between criminal behavior and bullying…. This is the purpose of freedom of speech. It’s only words. We don’t get punished for words.” He contends that most anti-bullying policies contain well-intended but ineffective punishments that backfire and often escalate bullying.
University of Oregon Special Education Professor Rob Horner agrees with Kalman that education and prevention are the best remedies for student-on-student harassment. Horner and two colleagues developed a program, Bully Prevention in Positive Behavior Support, now used by 17,000 schools across the country. It focuses on changing school cultures by teaching children what respectful behavior is, and that everyone has a responsibility to stop disrespectful behavior when they see it.
Source: The Register-Guard, 7/3/12, By Karen McCowan
[Editor's Note: In May 2012, Legal Clips summarized an article in The Washington Post, which reported that to help public schools with balancing school safety and religious freedom, a broad coalition of educators and religious groups, from the National Association of Evangelicals to the National School Boards Association, has endorsed a new pamphlet, “Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools,” which was authored chiefly by the American Jewish Committee.]