September 01, 2020

    Young Lawyers

    There are many ways in which lawyers can encounter bullying-related issues in their practice. You can represent victims, prosecute bullies, advise school districts, advocate for the enactment or revision of school policies and state laws, or even challenge the constitutionality of laws aimed at punishing bullying, just to name a few. The resources gathered here should help you learn more about this ever-evolving area of the law.

    What Types of Anti-Bullying Laws Exist?
    What Types of Constitutional Issues Do Anti-Bullying Measures, and the Enforcement of those Measures, Involve?
    What Types of Lawsuits & Claims Are Available to Victims?
    How Can You Work With Educators to Combat Bullying?

    What Types of Anti-Bullying Laws Exist?

    Anti-bullying legislation varies greatly and some laws are much more effective than others. Some are criminal in nature, some are not. Some require educational agencies to adopt policies and some even include model policies. For example:

    • New Jersey's Anti-Bullying Bill of Rights Act not only requires district to adopt such policies, it actually identifies the twelve components that such policies must include. See N.J. Rev. Stat. § 18A:37-15.
    • South Dakota's anti-bullying law includes a model bullying policy that local school districts are required to follow until they have adopted their own policies. See S.D. Codified Laws §§ 13-32-14, et seq.

    For more information:

    What Types of Constitutional Issues Do Anti-Bullying Measures, and the Enforcement of those Measures, Involve?

    There are a variety of constitutional issues that can come into play in cases involving anti-bullying measures and the enforcement of those measures. On one hand, schools have a duty to protect students and students have a right to a free, appropriate, public education free from harassment. On the other hand, students do not leave their constitutional rights at the schoolhouse door.

    • Kara Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011):
      This case involved cyber-bullying - a student sued her school claiming that it infringed her First Amendment rights when it suspended her for creating a hate website against another student at school. The Fourth Circuit determined that the speech created actual or reasonably foreseeable "substantial disorder and disruption" at school. As such, the “speech” did not merit First Amendment protection.
    • J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011):
      In this case, a student was suspended after she created, from her home computer, an internet profile of the school’s principal containing his photograph misappropriated from school district website and profanity-laced statements insinuating that he was sex addict and pedophile. The student filed a § 1983 action against the school district claiming violation of her free speech rights, due process rights, and state law. The Third Circuit held that a school may not punish students for off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at school  but also held that each case must be decided on its individual facts.

    For additional information:

    What Types of Lawsuits & Claims Are Available to Victims?

    Against Schools: When evaluating a potential peer bullying case, it is important to know that a school’s responsibilities to address bullying are not limited to the responsibilities described in the school’s (or the state’s) anti-bullying policies. Bullying may trigger legal responsibilities for schools under certain civil rights laws prohibiting discrimination and harassment based on race, color, gender, national origin, sex, disability, and religion. A school that fails to respond appropriately to harassment of students based on a protected class may be violating one or more civil rights laws enforced by the Department of Education and the Department of Justice, including:

    • Title IV and Title VI of the Civil Rights Act of 1964
    • Title IX of the Education Amendments of 1972
    • Section 504 of the Rehabilitation Act of 1973
    • Titles II and III of the Americans with Disabilities Act
    • Individuals with Disabilities Education Act (IDEA)

    Against Bullies: Zero tolerance policies rarely, if ever, are effective. Find out if your client’s school has an anti-bullying policy and/or resolution procedure. Additionally, there are instances in which bullying can constitute a crime or render the bullies and/or their parents liable in a civil lawsuit.

    • 18 U.S.C.A § 875(c) makes it a crime to transmit a "threat . . to injure the person of another" via interstate commerce, and using E-mails to  issue such "true threats" satisfies this requirement. To establish a "true threat," some courts have held that the government must prove that the  maker of the threat reasonably should have foreseen that the statement he  uttered would be taken as a threat by those to whom it was made. See, e.g., United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997).
    • Hate crime laws
    • Criminal laws
    • Civil tort lawsuit (assault, battery, defamation, intentional infliction of emotional distress, invasion of privacy, slander)

    How Can You Work With Educators to Combat Bullying?

    A good place to start is by familiarizing yourself with the U.S. Department of Education’s "Dear Colleague" Letters addressing bullying and related issues:

    Additionally, these resources will give you information about the various intervention strategies and policies that can be discussed with educators.

    • Review the Anoka-Hennepin School District Consent Decree:  This decree resolved the complaints of sex-based harassment of middle and high school students in the school district and contains many intervention and oversight provisions that can be implemented by schools as part of the anti-bullying efforts. In part, the consent decree ensures that the school district:
      1. Retains an expert consultant in the area of sex-based harassment to review the district’s policies and procedures concerning harassment;
      2. Develops and implements a comprehensive plan for preventing and addressing student-on-student sex-based harassment at the middle and high schools;
      3. Enhances and improves its training of faculty, staff and students on sex-based harassment;
      4. Hires or appoints a Title IX coordinator to ensure proper implementation of the district’s sex-based harassment policies and procedures and district compliance with Title IX;
      5. Retains an expert consultant in the area of mental health to address the needs of students who are victims of harassment;
      6. Provides for other opportunities for student involvement and input into the district’s ongoing anti-harassment efforts;
      7. Improves its system for maintaining records of investigations and responding to allegations of harassment;
      8. Conducts ongoing monitoring and evaluations of its anti-harassment efforts; and
      9. Submits annual compliance reports to the departments.     
    • Positive Change Through Policy – this guide by the National Crime Prevention Council features examples of policies that schools, localities, and states across the United States have implemented to create safer communities.

     

    New York Court of Appeals Decision on Cyberbullying Case

    The Constitutional Implications of Cyberbullying Laws (Program Recording)

    Workplace Bullying: An Examination under the NLRA and OSHA (Program Recording)