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Confronting Bullying: A National Issue, A Local Problem, and An Opportunity To Institute Positive Confronting Bullying: A National Issue, A Local Problem, and An Opportunity To Institute Positive Change Arizona School Boards Association’s School Law Conference September 9, 2011 JW Marriott Camelback Inn, Scottsdale

Introductions Sonja Trainor Senior Staff Attorney National School Boards Association strainor@nsba. org Introductions Sonja Trainor Senior Staff Attorney National School Boards Association [email protected] org

An All-Too Common Scenario Middle school cheerleeder elected “Queen of Charm” creates a facebook An All-Too Common Scenario Middle school cheerleeder elected “Queen of Charm” creates a facebook page from her home computer called “S. A. S. H. ” Or “Students Against Sluts Herpes”. Targets a girl named Shay Pictures are posted showing by another student showing Shay with red dots on her face and an “enter at your own risk” sign over her privates Shay won’t come to school School investigates and disciplines No evidence facebook accessed from campus

A National Conversation Begins. . . With an unprecedented focus on the issue of A National Conversation Begins. . . With an unprecedented focus on the issue of bullying in schools by the Obama administration. Multi-agency Approach Two White House conferences on bullying President Obama himself appeared in two videos with personal messages to the country

The Administration’s Multi-Agency Approach Federal Interagency Workgroup on Bullying ED, NIH, SAMHSA, USDA, CDC, The Administration’s Multi-Agency Approach Federal Interagency Workgroup on Bullying ED, NIH, SAMHSA, USDA, CDC, NIJ, HRSA Stopbullying. gov is managed by the Department of Health and Human Services in partnership with the Departments of Education and Justice

Two White House Conferences on Bullying National Bullying Summit August, 2010 Conference on Bullying Two White House Conferences on Bullying National Bullying Summit August, 2010 Conference on Bullying Prevention March, 2011 Gathered authorities, advocates, researchers Result: bolstered website and calls for more research, and many more meetings.

The President Appeared in Two Videos 10/21/10: In response to suicides by gay students The President Appeared in Two Videos 10/21/10: In response to suicides by gay students who were bullied, President Obama appeared in a video for the “It Gets Better” campaign saying we have to dispel the myth that bullying is just a normal rite of passage. http: //www. whitehouse. gov/blog/2010/10/21/president-obamait-gets-better 3/9/11: President and Mrs. Obama addressed bullying in a Facebook video released on the day of the second White House Conference. http: //www. whitehouse. gov/blog/2011/03/09/president-obamafirst-lady-address-bullying-facebook-video

U. S. Department of Education Office of Safe and Drug-Free Schools Office for Civil U. S. Department of Education Office of Safe and Drug-Free Schools Office for Civil Rights Secretary Duncan announced renewed vigor in civil rights enforcement in March, 2010 OCR Chief Rusalynn Ali took aggressive approach, even calling for disparate impact analysis in Title VI cases. 54 reported compliance reviews as of October 2010, including analysis of disparate discipline rates OCR issued numerous guidance documents reminding K-12 and postsecondary institutions of its enforcement positions

Federal Civil Rights Laws Enforced by ED Title VI – prohibits discrimination in programs/activities Federal Civil Rights Laws Enforced by ED Title VI – prohibits discrimination in programs/activities receiving Federal financial assistance based on race, color, or national origin. Title IX - prohibits discrimination in programs/activities receiving Federal financial assistance based on sex. ADA title II/Section 504/IDEA – collectively prohibits discrimination in programs/activities receiving Federal financial assistance and state and local governments. IDEA and Section 504 impose the FAPE requirement.

OCR Guidance since 2009 Enrollment practices re: undocumented students/parents http: //www 2. ed. gov/about/offices/list/ocr/letters/colleague-201101. OCR Guidance since 2009 Enrollment practices re: undocumented students/parents http: //www 2. ed. gov/about/offices/list/ocr/letters/colleague-201101. html Title IX requirements regarding sexual harassment and sexual violence http: //www 2. ed. gov/about/offices/list/ocr/letters/colleague 201104. html Title IX 3 -part test (Part 3) to determine http: //www 2. ed. gov/about/offices/list/ocr/letters/colleague 20100420. html

OCR Guidance since 2009, cont’d E-readers accessibility for students with disabilities http: //www 2. OCR Guidance since 2009, cont’d E-readers accessibility for students with disabilities http: //www 2. ed. gov/about/offices/list/ocr/docs/dcl-ebook-faq 201105. html Treatment of LGBT student groups (GSA) under Equal Access Act http: //www 2. ed. gov/policy/elsec/guid/secletter/110607. html Harassment and bullying Dear Colleague letter October 26, 2010 http: //www 2. ed. gov/about/offices/list/ocr/letters/colleague-201010. html Fact sheet October 26, 2010 http: //www 2. ed. gov/about/offices/list/ocr/docs/dcl-factsheet-201010. html Letter from Duncan to state officials and examples of provisions in state anti-bullying laws December 16, 2011 http: //www 2. ed. gov/policy/gen/guid/secletter/101215. html And more!

OCR Dear Colleague Letter October 26, 2010 Reminded schools that some student misconduct that OCR Dear Colleague Letter October 26, 2010 Reminded schools that some student misconduct that falls under a school’s antibullying policy also may trigger responsibilities under one or more of the federal anti-discrimination laws. “By limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment. ”

OCR Dear Colleague Letter October 26, 2010 The letter purports to “articulate[] the legal OCR Dear Colleague Letter October 26, 2010 The letter purports to “articulate[] the legal standards that apply in administrative enforcement and in court cases where plaintiffs are seeking injunctive relief. ” OCR expressed a strong enforcement position Broad standard for school district responsibility Many factual scenarios based on actual OCR investigations Myriad of remedial measures school district could/should have taken in each case

OCR Dear Colleague Letter’s Broad Standard A Public school is responsible for addressing harassment OCR Dear Colleague Letter’s Broad Standard A Public school is responsible for addressing harassment based on federally-protected categories: that is severe, pervasive or persistent; about which it knew or should have known; that interferes with or limits a student’s participation in or benefit from the services, activities or opportunities offered by the school. OCR suggested in its letter that a school should eliminate the harassment.

Davis v. Monroe In 1999, the Supreme Court articulated the standard that applies when Davis v. Monroe In 1999, the Supreme Court articulated the standard that applies when a person seeks money damages from a recipient of federal funds based on peer sexual harassment “[F]unding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they had actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school. ”

NSBA responds to the Dear Colleague Letter NSBA issued a response to the DCL NSBA responds to the Dear Colleague Letter NSBA issued a response to the DCL stating that in our opinion, it articulates an enforcement standard that goes far beyond the peer sexual harassment standard applicable in cases where the plaintiff is seeking money damages articulated by the Supreme Court, and may invite litigation against public schools. http: //www. nsba. org/School. Law/Issues/Safety/NSBA-letter-to-Ed-12 -07 -10. pdf

NSBA responds to the Dear Colleague Letter: OCR standard v. Title IX/Davis OCR Knows NSBA responds to the Dear Colleague Letter: OCR standard v. Title IX/Davis OCR Knows or reasonably should have known Title IX/Davis Actual knowledge Severe, pervasive or persistent Severe, pervasive and objectively offensive Interferes with or limits participation Effectively bars access

NSBA responds to the Dear Colleague Letter: OCR standard v. Title IX/Davis OCR Title NSBA responds to the Dear Colleague Letter: OCR standard v. Title IX/Davis OCR Title IX/Davis Eliminate harassment and prevent it from recurring Respond in a manner not clearly unreasonable Multiple remedial measures Not required to respond to remedial demands of parents May be required to respond to parents’ demands

NSBA responds to the Dear Colleague Letter: Additional Critiques Publically labeling an incident as NSBA responds to the Dear Colleague Letter: Additional Critiques Publically labeling an incident as harassment could violate FERPA. National origin/religion distinction unclear What about the First Amendment?

OCR Responds to NSBA And basically digs in its heels. The DCL was issued OCR Responds to NSBA And basically digs in its heels. The DCL was issued to equip schools to better prevent and respond to harassment, thereby avoiding litigation, not inviting it. The October 2010 letter reflected OCR’s long-standing enforcement position; it was not new, nor was it a restatement of the law applicable to suits for money damages. http: //www. nsba. org/School. Law/Issues/Equity/ED-Response-to. NSBA-GCs-Letter-to-ED-on-OCR-Bullying-Guidelines. pdf

The Conversation Continues U. S. Commission on Civil Rights briefing on inter- student violence The Conversation Continues U. S. Commission on Civil Rights briefing on inter- student violence -- May 13, 2011 NSBA General Counsel Francisco Negrón presented NSBA’s position to a part-hostile, part-sympathetic Commission. NSBA issued a statement to the Commission citing research about prevalence, the importance of interest groups working together to prevent the scourge of bullying, and urging an approach that allows local control, rather than sweeping all bullying incidents under the federal civil rights umbrella. NSBA followed up with 400+ pages of supplemental materials showcasing the work of school boards and state associations to prevent and address bullying and harassment.

NSBA To the Commission: “[NSBA] continues to express concerns about federal initiatives that may NSBA To the Commission: “[NSBA] continues to express concerns about federal initiatives that may over-burden districts when state and local initiatives appear to be working well. We urge you to consider the successes documented here as you determine whether additional federal involvement is needed in this area. . ”

NSBA Materials submitted to U. S. Commission on Civil Rights Position Statement -- May NSBA Materials submitted to U. S. Commission on Civil Rights Position Statement -- May 13, 2011 http: //www. nsba. org/School. Law/Issues/Safety/Briefing-on-Inter. Student-Violence. pdf Supplemental Materials – May 26, 2011 http: //www. nsba. org/School. Law/Issues/Safety/Supplemental-Materialson-Inter-Student-Violence. pdf

State Anti-Bullying Statutes 46 states current have an anti-bullying law. Almost all (41) have State Anti-Bullying Statutes 46 states current have an anti-bullying law. Almost all (41) have passed or amended these laws between 2008 and June 2011. States that don’t – HI, MT, and SD – have state agency directives/guidance requiring or encouraging school districts to have anti-bullying policies. NY and ND enacted for the first time during the 2010 -2011 legislative session. MA enacted for the first time in the 2009 -2010 session.

Most State Anti-Bullying Statutes. . . Define bullying/harassment/intimidation, including a geographical requirement (at school, Most State Anti-Bullying Statutes. . . Define bullying/harassment/intimidation, including a geographical requirement (at school, bus, event) Include electronic conduct, sometimes in the criminal code Require or encourage bullying prevention in training standards or curriculum

Most State Anti-Bullying Statutes. . . Require school districts to develop, adopt and publically Most State Anti-Bullying Statutes. . . Require school districts to develop, adopt and publically release policies with enumerated components Require the state agency to develop a model policy, publish guidance, provide resources, or oversee training Require schools and districts to gather data and report to state agency, which in some cases must report annually to the state legislature

Most State Anti-Bullying Statutes. . . Specifically decline to create a cause of action Most State Anti-Bullying Statutes. . . Specifically decline to create a cause of action Grant immunity for good faith reporting of bullying incidents under the statute’s or policy’s required procedures.

Not As Common Notice to parents of the perpetrator and the target. Mention of Not As Common Notice to parents of the perpetrator and the target. Mention of non-punitive interventions/strategies that may be used in addition to discipline Separation or distinction between bullying and harassment (the latter being a legal term applying to conduct based on categories protected by federal/state law) Inclusion of student-to-employee conduct in the definition of bullying/harassment/intimidation

Charting New Territory MA’s law includes a broad definition of bullying that includes off-campus Charting New Territory MA’s law includes a broad definition of bullying that includes off-campus behavior: Bullying is prohibited even at non-school-related locations/events or through use of non-school-owned technology if it creates a hostile environment at school for the victim, infringes on the victim’s rights at school, or materially and substantially disrupts the education process or the orderly operation of the school. Section 5(b)

Charting New Territory NY’s Dignity For All Students Act law focuses on discrimination and Charting New Territory NY’s Dignity For All Students Act law focuses on discrimination and harassment Requires that school districts adopt policies to protect children against bullying based on a number of listed categories including, sexual orientation and weight Says schools should guard against those and other forms of discrimination and harassment, including ethnicity and disability. Requires the state agency to provide guidance on topics including “tolerance” instruction

Charting New Territory NJ’s Anti-Bullying Bill of Rights, signed in January 2011, is the Charting New Territory NJ’s Anti-Bullying Bill of Rights, signed in January 2011, is the most comprehensive to date. Highlights: Extensive data reporting on district and school report cards, from the Superintendent to the board; Teacher professional development training on suicide prevention, relationship between risk of suicide and bullying, and reducing the risk in members of communities at high risk; Board member training on bullying and the board’s responsibilities under the statute;

Charting New Territory NJ’s law, cont’d: Off-campus behavior included in the definition of bullying; Charting New Territory NJ’s law, cont’d: Off-campus behavior included in the definition of bullying; Each school must have an anti-bullying specialist and each d 9 istrict an anti-bullying coordinator; Extensive and detailed investigation and disciplinary procedural requirements

New Jersey’s Anti-Bullying Bill of Rights’ Investigation Deadlines Incidents must be reported verbally to New Jersey’s Anti-Bullying Bill of Rights’ Investigation Deadlines Incidents must be reported verbally to the school principal on the same day, and in writing within two school days; Principal must initiate the investigation within one school day of the report and complete it within 10 school days of the written report; Results of the investigation must be reported to the superintendent within two school days of its completion and to the school board no later than its next board meeting; Parents receive written information about the investigation within five school days of the investigation report going to the board and may request a board hearing, which must be held within 10 days of the request;

New Jersey’s Anti-Bullying Bill of Rights’ Investigation Deadlines School board issues a decision on New Jersey’s Anti-Bullying Bill of Rights’ Investigation Deadlines School board issues a decision on the superintendent’s decision at the next meeting following its receipt of the report (which may be appealed to the SEA); Parent/student may file a complaint with the state Division on Civil Rights within 180 days of the incident; AND. . . Every school district must annually review and assess its policy and transmit a copy of the revised policy to the executive county sup within 30 school days of the revision; The state DOE must amend its model policy no later than 90 days after the act’s effective date.

Bully. Police. org gives 2005 version a B-. “Grade” is likely to improve with Bully. Police. org gives 2005 version a B-. “Grade” is likely to improve with the latest amendments. What do you think NJ got? What about Arizona’s recentlyamended anti-bullying statute?

NSBA State Anti-Bullying Statutes Charts State Anti-Bullying Statutes http: //www. nsba. org/School. Law/Issues/Safety/Table. pdf NSBA State Anti-Bullying Statutes Charts State Anti-Bullying Statutes http: //www. nsba. org/School. Law/Issues/Safety/Table. pdf Bullying Definitions in State Anti-Bullying Statute http: //www. nsba. org/School. Law/Issues/Safety/Definitions. pdf State Education Agency Model Anti-Bullying Policies and Other Resources http: //www. nsba. org/School. Law/Issues/Safety/State-Educational. Agency-Model-Anti-Bullying-Policies-and-Other-Resources. pdf

Litigation Trends – Sued by the Victim Are there more lawsuits against school districts Litigation Trends – Sued by the Victim Are there more lawsuits against school districts alleging liability for student bullying? From what we see reported in the media and anecdotally through reports from COSA members, yes.

Litigation Trends – Sued by the Victim I looked at 14 complaints filed against Litigation Trends – Sued by the Victim I looked at 14 complaints filed against school districts by victims of bullying/harassment in state and federal courts between January 2010 and July 2011. Basic claim is that the student has a right to be safe and free from bullying at school; school officials have a duty to provide an atmosphere free from repeated bullying; and school officials breached their duty to keep the student safe.

Sued by the Victim Complaints allege multiple causes of action. Some favorites are: Violation Sued by the Victim Complaints allege multiple causes of action. Some favorites are: Violation of federal civil rights statute (Title IX most common) Violation of 14 th Amendment due process/equal protection concepts ALWAYS, violation of state statutes and common law concepts (state human rights law, negligence, failure to supervise) Misc. (negligence per se, violation of obligations to maintain lawful policies and procedures)

Sued by the Victim – decided cases If complaints are on the rise, plaintiffs’ Sued by the Victim – decided cases If complaints are on the rise, plaintiffs’ success rates are not. One federal district court judge recently noted that bullying victim plaintiffs have had limited success, and have for the most part lost cases under Title IX, substantive due process, equal protection and state tort law. BUT, school districts have lost some cases, and the standards continue to evolve

Decided Cases – State Anti-Bullying Statutes Only a handful of courts have addressed whether Decided Cases – State Anti-Bullying Statutes Only a handful of courts have addressed whether a student could bring a cause of action under a state anti-bullying statute. Finkel v. Dauber, 2010 WL 2872874 (N. Y. Sup. 2010). Cyberbullying is not cognizable tort action in NY. Karlen ex rel. J. K. v. Westport Bd. of Educ. , 638 F. Supp. 2 d 293 (D. Conn. 2009); Dornfried v. Berlin, 2008 WL 5220639 (Conn. Super. 2008); Santoro v. Town of Hamden, 2006 WL 2536595 (Conn. Super. 2006). No cause of action under state anti-bullying statute. Chisolm v. Tippens, 658 S. E. 2 d 147 (Ga. Ct. App. 2008). No Section 1983 for violation of state statute.

Decided Cases – Federal Civil Rights Statutes Federal courts almost always apply Davis The Decided Cases – Federal Civil Rights Statutes Federal courts almost always apply Davis The standard is often applied in 5 parts: 1) 2) 3) 4) 5) the student is a member of the protected class; the student was harassed based on his disability/sex/race; the harassment was sufficiently severe, pervasive and objectively offensive that it deprived the victim of access to the school’s educational opportunities or benefits (or created an abusive environment); the school knew of the harassment; and The school was deliberately indifferent to the harassment

Decided Cases – Title IX Popular cause of action because: Much peer banter involves Decided Cases – Title IX Popular cause of action because: Much peer banter involves the use of offensive words with sexual connotations, so it’s often easy to characterize bullying as sexual harassment; The law is relatively well-developed; and Money damages are available.

Decided Cases – Title IX Court decisions often occur at the summary judgment stage. Decided Cases – Title IX Court decisions often occur at the summary judgment stage. The court decides whether the Davis standard has been met. Key questions are: Was there sufficient evidence of sex-based harassment extreme enough to meet the Davis standard? Does the evidence show that the district, aware of the harassment, acted in a manner “not clearly unreasonable, ” or does it show that the district was deliberately indifferent?

Selected Decisions – Title IX Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist. , 2011 Selected Decisions – Title IX Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist. , 2011 WL 2698975 (5 th Cir. 2011). Dispute between two cheerleaders, the mother of one, and the school, which led to teasing and name-calling (“ho”) and behavior bordering on bullying. Court decided, as a matter of law, the conduct was not sexual harassment, nor was it severe, pervasive, or objectively unreasonable, and the school district was not deliberately indifferent.

Sanches, cont’d The court found the suit to be “nothing more than a dispute, Sanches, cont’d The court found the suit to be “nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether daughter should have made the squad, ” and “… a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court. ”

Selected Decisions – Title IX Brodsky v. Trumbull Bd. of Educ. , 2009 WL Selected Decisions – Title IX Brodsky v. Trumbull Bd. of Educ. , 2009 WL 230708 (D. Conn. 2009). Like Sanches, the harassment alleged in this case amounted to sexually-tinged name-calling between individuals after a personal falling-out. The court found the name calling was a result of the fallingout, not one girl’s hostility to others of the same sex. “Title IX was not intended and does not function to protect students from bullying generally (as opposed to sexual harassment or gender discrimination) or to provide them recourse for mistreatment that is not based on sex. ”

Selected Decisions – Title IX Wolfe v. Fayetteville School District (Arkansas 2010). Jury ruled Selected Decisions – Title IX Wolfe v. Fayetteville School District (Arkansas 2010). Jury ruled in favor of the district. District claimed the student was “bullied” and not “sexually harassed. ” Though the plaintiff was apparently called a “fag” and “faggot, ” the district argued that students did not use these terms in a sexual way and did not think the student was gay. The district also argued that the plaintiff also engaged in harassment. District claimed the principal investigated allegations of bullying and asked teachers to monitor the plaintiff to put a stop to the name calling. Plaintiff asserted a “pattern of conduct” theory.

Selected Decisions – Title IX Patterson v. Hudson Area Schools, 724 F. Supp. 2 Selected Decisions – Title IX Patterson v. Hudson Area Schools, 724 F. Supp. 2 d 682 (E. D. Mich. 2010). Jury issued $800, 000 verdict against the school district. Plaintiff relied on the “pattern of conduct” theory. Jury decided district failed to do enough to protect a student from years of peer-to-peer sex-based bullying. BUT. . .

Patterson, cont’d . . . The district court judge set aside the jury’s verdict, Patterson, cont’d . . . The district court judge set aside the jury’s verdict, finding: "the harassment to which Plaintiff was subjected in sixth, seventh and ninth grade constituted bullying, not sexual harassment, " and "Title IX protects [against] only harassment or discrimination based on sex. And dismissed the case as a matter of law.

Patterson, cont’d The Court of Appeals for the Sixth Circuit had sent the case Patterson, cont’d The Court of Appeals for the Sixth Circuit had sent the case back to the district court for trial, finding that the peer harassment had occurred over years, that the district had repeatedly used the same ineffective method to address it, which could be found to be deliberate indifference subjecting the district to liability.

Selected Decisions – Title IX Theno v. Tonganoxie Unified Sch. Dist. No. 464, 394 Selected Decisions – Title IX Theno v. Tonganoxie Unified Sch. Dist. No. 464, 394 F. Supp. 2 d 1299 (D. Kan. 2005). School district may be held liable for same-sex harassment based on gender stereotypes. Plaintiff claimed he had been the target of pervasive sexual harassment by other students during middle and high school, eventually leading him to drop out. Jury returned $250, 000 verdict for the students; judge awarded $270, 000 in attorney’s fees.

Selected Decisions – Title IX J. B. v. Mead Sch. Dist. No. 354, 2010 Selected Decisions – Title IX J. B. v. Mead Sch. Dist. No. 354, 2010 WL 5173164 (E. D. Wash. 2010). No genuine issue of fact on the “actual knowledge” component. District officials did not know about the extent and nature of the harassment by two students with disabilities against another, and took immediate corrective action once informed by another student. Marcum v. Bd. of Educ. of Bloom-Carroll Local Sch. Dist. , 727 F. Supp. 2 d 657 (S. D. Ohio 2010). Sexual assault on the bus was indeed severe, but district was not deliberately indifferent – aggressor suspended and moved to another school. Taunting by other students “pales in comparison” to nature and severity of harassment deemed actionable in other cases.

Decided Cases – Title VI Under Alexander v. Sandoval, 532 U. S. 275 (2001), Decided Cases – Title VI Under Alexander v. Sandoval, 532 U. S. 275 (2001), claims of discrimination based on race must allege intentional discrimination. There is no private claim for damages based on disparate impact or permitting a hostile environment. The Tenth Circuit decided in Bryant v. Ind. Sch. Dist. No. I-38, 334 F. 3 d 928 (2003) that allowing a hostile environment could be intentional. Davis applies.

Selected Decisions – Title VI D. T. v. Somers Cent. Sch. Dist. , 348 Selected Decisions – Title VI D. T. v. Somers Cent. Sch. Dist. , 348 Fed. Appx. 697 (2 d Cir. 2009). Plaintiff, a student, was suspended twice for theft. He and his mother sued the school district claiming student-to-student racial harassment. The 2 nd Circuit applied Davis and upheld the decision of the district court finding no Title VI violation. The incidents that he reported to school staff (one) and that staff observed (one) were investigated and action taken. The suspension for theft did not support a finding of deliberate indifference.

Decided Cases – ADA/Section 504/IDEA Courts generally apply the Davis standard when the plaintiff Decided Cases – ADA/Section 504/IDEA Courts generally apply the Davis standard when the plaintiff alleges a violation of the ADA and Section 504. A new standard may be evolving, however, when the plaintiff claims the harassment based on disability constitutes a denial of his or her right to FAPE.

Selected Decisions– ADA/Section 504 P. R. v. Metro. Sch. Dist. of Washington Township, 2010 Selected Decisions– ADA/Section 504 P. R. v. Metro. Sch. Dist. of Washington Township, 2010 WL 4457417 (S. D. Ind. 2010). Mother of student who was HIV positive alleged the school district violated Title II of the ADA and Sec. 504 by failing to adequately respond to alleged instances of disability discrimination after the student’s status was revealed to a friend. The court applied the Davis standard, following the 6 th Circuit and 3 districts courts, noting that the 8 th Cir. has applied a traditional ADA/Sec. 504 test. The school was not deliberately indifferent; some action was taken each time. The court rejected a Title VII-type hostile environment theory, saying there are no cases cited showing application of that analysis in the disability context.

Selected Decisions– ADA/Section 504/IDEA Scruggs v. Meridien Bd. of Educ. , 2007 WL 2318851 Selected Decisions– ADA/Section 504/IDEA Scruggs v. Meridien Bd. of Educ. , 2007 WL 2318851 (D. Conn. 2007). In a suicide case, the court applied Davis. The school was not deliberately indifferent. Even though an expert testified that the school board could have played a much more proactive role earlier in the case, it was not enough for deliberate indifference.

Selected Decisions– Denial of FAPE Then-judge Alito said the district court should have given Selected Decisions– Denial of FAPE Then-judge Alito said the district court should have given the testimony of witness at the due process hearing more weight. Shore v. Regional High School Board of Education, 381 F. 3 d 194 (3 rd Cir. 2004). The witness had testified that placement at the public high school would expose the student to a continuation of the devastating bullying that had occurred in middle school; therefore, placement at the public high school did not offer the disabled student an education that was sufficiently free from the threat of harassment to constitute a FAPE.

Selected Decisions– Denial of FAPE In April 2011, a federal district court in New Selected Decisions– Denial of FAPE In April 2011, a federal district court in New York entered new territory by adopting a standard in a peer harassment case based in part on OCR’s October 2010 Dear Colleague letter. T. K. v. New York City Dept. of Educ. , 2011 WL 1549243 (E. D. N. Y. ) The parents claimed their daughter had been subjected to physical, verbal, and psychological bullying, and that school officials had rebuffed their attempts to address the bullying during a meeting to discuss the student’s individualized education plan (IEP), and thereafter.

T. K. , cont’d They sought reimbursement for tuition and related expenses associated with T. K. , cont’d They sought reimbursement for tuition and related expenses associated with her private school placement. After a lengthy discussion of the problem of bullying in the United States, and the legal responsibilities of a district to prevent and remedy it, the district court held that IDEA imposes an affirmative duty on schools to address bullying and harassment of students served under it.

T. K. , cont’d The district said to determine whether peer bullying can be T. K. , cont’d The district said to determine whether peer bullying can be grounds for finding that a school district denied FAPE to a child with a disability, “under IDEA the question to be asked is whether school personnel was deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities. ” Many steps may be required, echoing the extensive remedial measures stated in the OCR Dear colleague letter. Finding that the parents had made the requisite showing, including failure to take reasonable steps to address the harassment, the court denied summary judgment

Decided Cases – 14 th Amendment Due Process and Equal Protection Wolfe v. Fayettesville, Decided Cases – 14 th Amendment Due Process and Equal Protection Wolfe v. Fayettesville, Arkansas Sch. Dist. (W. D. Ark. 2009). Plaintiffs failed to plead an official policy that caused constitutional injury but had plead enough for custom & usage with allegations of long and continuous pattern of harassment and abuse + notification to officials. Denial of substantive due process – dismissed. The truly egregious conduct here was by students, not the VP. First Amendment retaliation for complaints of bullying – survived. Affirmative acts such as telling student not to cry “like a little baby. ”

Selected Decisions – Substantive Due Process Courts seem to be on the same page Selected Decisions – Substantive Due Process Courts seem to be on the same page with Substantive Due Process claims. There is generally no affirmative duty for the state actor to protect an individual from harm caused by another private individual. Exceptions: State-created danger, in which the state affirmatively places the student in harm’s way. Special relationship/custody, in which the state has custody and control over the victim.

Selected Decisions – Substantive Due Process Scruggs v. Meridien Bd. of Educ. , 2007 Selected Decisions – Substantive Due Process Scruggs v. Meridien Bd. of Educ. , 2007 WL 2318851 (D. Conn. 2007). Repeated bullying of student, of which defendant school officials were aware, does not give rise to substantive due process claim because they did not put the student affirmatively in harm’s way. O’Dell v. Casa Grande Elem. Sch. Dist. No. 4, 2008 WL 5215329 (D. Ariz. 2008). No deprivation of substantive due process when student attacked after threat from another student. The special relationship/custody expectation has been uniformly rejected by courts in the school context; no state-created danger because no evidence of prior assaults or other evidence that officials were remiss for re-admitting the aggressor to the school after a suspension, or failure to discipline the other student based on threats.

Decided Cases – State Torts Usually the state tort cases involve physical aggression. Negligence Decided Cases – State Torts Usually the state tort cases involve physical aggression. Negligence is a lower standard to meet than deliberate indifference from federal civil rights laws. Schaefer v. Las Cruces Public Sch. Dist. , 716 F. Supp. 2 d 1052 (D. N. M. 2010) The school officials’ response to harassment (orientation meeting saying bullying and assault were not tolerated and would be punished, and meeting specifically on dangers of “racking” behavior that had occurred) might be insufficient response under NM tort law but not clearly unreasonable under Title IX). Halladay v. Wenatchee Sch. Dist. , 598 F. Supp. 2 d 1169 (E. D. Wash. 2009). Victim of snowball aggression threatened “to kill” the kid who attacked him. He was suspended. Court granted SJ to school district, finding risk not foreseeable and no injury.

Decided Cases - Immunity Courts have found school defendants immune from suit for negligent Decided Cases - Immunity Courts have found school defendants immune from suit for negligent supervision, failure to protect, and other “regular” negligence claims Scruggs v. Meriden Bd. Of Educ. , 2007 WL 2318851 (D. Conn. ) In a suicide case, school defendants were entitled to SJ on negligence claim. Parsons v. Town of Tewksbury, 2010 WL 1544470 (Mass. Super. ) A student’s leg was broken in pre-arranged fight in school bathroom The guidance counselor and behavior specialist knew of prior incidents. Tort immunity statute applied on negligence claims.

Decided Cases - Immunity BUT, some court decisions have suggested that mandated or specific Decided Cases - Immunity BUT, some court decisions have suggested that mandated or specific bullying policies/procedures could make school officials’ acts ministerial, thereby negating state qualified immunity Esposito v. Town of Bethany, 2010 WL 2196910 (Conn. Super. 2010) The court suggested that it was a question of fact to be developed at trial whether the teacher/administrator reaction to acts of bullying were ministerial acts, thereby negating immunity. Dornfried v. Berlin Bd. of Educ. , 2008 WL 5220639 (Conn. Super. ) The court noted that plaintiffs did not allege (but could have? ) that the defendants failed to perform specific duties under an anti-bullying statute in any proscribed manner

Decided Cases - Immunity Qualified immunity from federal claims brought under Section 1983 is Decided Cases - Immunity Qualified immunity from federal claims brought under Section 1983 is available except in cases where the plaintiff shows that officials violated a clearly established right. Courts are morel likely to find a violation of a clearly established right when there is along pattern of abuse over years. Distiso v. Town of Wolcott, 2010 WL 4365670 (D. Conn. 2010). Principal and two teachers were denied qualified immunity because the facts showed a long pattern of abuse of which the officials had been informed and about which they took no action or blamed the victim.

Sued by the Bully Sometimes, the bullying challenges the school’s investigation or discipline: Fourth Sued by the Bully Sometimes, the bullying challenges the school’s investigation or discipline: Fourth Amendment claim that school officials violated his right against unreasonable searches and seizures by looking at cell phone, computer, backpack. J. B. D. v. North Carolina, No. 09 -11121 (June 16, 2011) Age must be considered in determining whether a suspect is in custody for purposes of administering Miranda warnings. Fourteenth Amendment claim that school officials violated his due process or equal protection rights. Most often, the bully claims a First Amendment free speech rights.

What student speech may public school officials regulate? Public schools may regulate student speech What student speech may public school officials regulate? Public schools may regulate student speech on campus if: Tinker (1969) It “materially disrupts classwork or involves substantial disorder or invasion of the rights of others; ” Hazelwood (1983) It is school-sponsored; Fraser (1987) It is Lewd or vulgar; Morse (2007) It is illegal drug-related speech.

What student speech may public school officials regulate? Public schools may regulate student speech What student speech may public school officials regulate? Public schools may regulate student speech if it constitutes a “true threat. ” True threats are not protected by the First Amendment. Watts v. U. S. (1969). The statute prohibiting a true threat of the President’s life is constitutional; speech here was not true threat, but political hyperbole. Wisniewski v. Bd. of Ed. Weedsport Central S. D. (2 d Cir. 2007). “We think that school officials have significantly broader authority to sanction student speech than the Watts standard allows. ” D. J. M. v. Hannibal Pub. Sch. Dist. , No. 10 -1428 (8 th Cir. 2011). Student’s online statement to classmate saying he would get a gun and kill other classmates was a true threat.

What off-campus student speech may public school officials regulate? What about off-campus speech that What off-campus student speech may public school officials regulate? What about off-campus speech that affects the school environment, either as a whole or with respect to one student? If NOT true threat, does the Tinker disruption test apply? That is what the courts are trying to figure out, especially for online, off-campus speech.

Student Online Off-Campus Speech Districts have been successfully sued under the First Amendment for Student Online Off-Campus Speech Districts have been successfully sued under the First Amendment for disciplining students for speech that occurred partially or totally off-campus Bottom line: no U. S. Supreme Court free speech case applies specifically to off-campus student speech Off-campus bullying does not have to be over the internet…but cases usually involve the internet

Student Online Off-Campus Speech Courts have repeatedly, though reluctantly applied Tinker to off-campus speech. Student Online Off-Campus Speech Courts have repeatedly, though reluctantly applied Tinker to off-campus speech. Courts and attorneys have come to refer to the “nexus” between the behavior and the school. Courts tend to focus on Tinker’s “disruption” prong and pay little attention to the “rights of others” prong.

Student Online Off-Campus Speech Less than 20 cases total Less than five actually involve Student Online Off-Campus Speech Less than 20 cases total Less than five actually involve students as victims— most victims are teachers or administrators Bottom line: safest approach is to apply Tinker’s substantial disruption test If you find no actual substantial disruption or reasonable forecast of one (which is the most likely outcome) don’t discipline the student School districts have lost a majority of challenges to discipline for off-campus, internet speech primarily because there is no evidence of an actual substantial disruption and courts are unwilling to determine that there was a reasonable forecast of one

Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal Wisniewski v. Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal Wisniewski v. Bd. Of Ed. Weedsport Central S. D. , 494 F. 3 d 34 (2 d Cir. 2007). Student’s IM message contain icon showing violence toward staff. Reasonably foreseeable that school officials would become aware of icon and then substantial disruption likely. Doninger v. Niehoff , 527 F. 3 d 41(2 d Cir. 2008). Student prevented from student government participation after offensive blog entry. Reasonably foreseeable the entry would be seen by school community and would substantially disrupt the school environment.

Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal Kowalski v. Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal Kowalski v. Berkeley County Sch. , No. 1098 (4 th Cir. , 2011). The school district had authority under Tinker’s substantial disruption standard to discipline the student for speech that originated offcampus because, given the reach of the Internet, it was reasonably foreseeable that the speech would reach the school.

Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal Don’t forget: Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal Don’t forget: D. J. M. v. Hannibal Public School District, No. 10 -1428 (8 th Cir. Aug. 1, 2011). D. J. M. sent instant messages to a friend about getting a gun and shooting other students a school. He claimed his suspension violated the First Amendment. Not only true threats (reasonable recipient would have interpreted the threat as serious and threat was communicated to a third party), but also: Substantial disruption ◦ Was reasonably foreseeable the message would reach campus ◦ Substantial disruption – parents asking district about security measures—district had to deal with these concerns and put safety measures in place

Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal The Third Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal The Third Circuit’s Twin Cases – district loses both J. S. v. Blue Mountain Sch. Dist. , No. 08 -4138 (3 d Cir. , 2011). The school district violated the student’s First Amendment free speech rights. The school district had failed to demonstrate that it could reasonably forecast that the student’s parody profile would cause substantial disruption in school. The fake My. Space “profile was so outrageous that no one could have taken it seriously, and no one did. ” It was clearly not reasonably foreseeable that J. S. ’s speech would create a substantial disruption or material interference in school.

Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal The Third Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal The Third Circuit’s Twin Cases – district loses both Layshock v. Hermitage Sch. Dist. , No. 07 -4465 (3 d Cir. , 2011). The school district violated the student’s free speech rights. District officials were not justified in disciplining Layshock for speech that occurred off-campus after school hours because they had not established a sufficient nexus to the school. NOTE: The school district did not appeal the district court’s ruling that the student’s conduct had not disrupted the school, so it was left to argue only that it was justified under Fraser in disciplining him for the vulgar and offensive expression that occurred offcampus. The court found that the student’s appropriation of photos from the district web site did not constitute entering the school.

Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal What has Student Online Off-Campus Speech – Decisions from U. S. Courts of Appeal What has been decided in the Ninth Circuit? J. C. v. Beverly Hills Unified Sch. Dist. , No. 08 - 03824, 2010 WL 1914215 (C. D. Cal. May 6, 2010) Most recent off-campus, internet speech case involving a student insulting another student on a video posted on You. Tube—student won Summarizes in some detail the rationale other courts have relied on to apply Tinker’s substantial disruption test to offcampus, internet speech.

Suggestions Based on the Trends OCR’s letter is probably the gold standard ; BUT Suggestions Based on the Trends OCR’s letter is probably the gold standard ; BUT not complying with all of OCR’s letter will not be enough for you to get successfully sued Involve parents as much as possible. Parents involved in the process and aware of incidents involving their children are usually not the ones who sue. Training of staff is key. Make your policies and procedures clear; staff should know that students who are different are most at risk, and that bullying over years is often the most damaging Take extra, extreme precautions if there is any risk of suicide – if possible, inform and release the child to parents. Investigate promptly and thoroughly and take action that will stop the bullying by all perpetrators.

The Conversation Continues Rx 4 Good Bullying Prevention Working Group NCMEC School Bullying/Cyberbullying Working The Conversation Continues Rx 4 Good Bullying Prevention Working Group NCMEC School Bullying/Cyberbullying Working Group First Amendment Center Religion in Schools Working Group Free Expression Network panel discussion August issue of Leadership Insider

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