December 12, 2019 Article

A Place for Bullying Protections in School Lawyering

Few attorneys practice in the area of school bullying; the Civitas ChildLaw Clinic at Loyola University Chicago School of Law recently began representing bullying victims.

By Jackie Ross, Miranda Johnson, B. Alvarez, and Theodore Gelderman

Bullying is a significant challenge facing our schools: One in five students report having experienced bullying, and, according to the same article, rates of cyberbullying have also increased, particularly among girls, who are more likely to report being harassed online or by text message. Bullying of certain vulnerable school populations is also a particular concern; recent surveys show that increasing numbers of students of color attending predominantly white schools have reported being bullied. In addition, both students with disabilities and lesbian, gay, transgender, bisexual, and questioning (LGBTQ) youths are also particularly vulnerable to being bullied.

Bullying can have a serious impact on a student’s mental and physical health, changing that student’s trajectory. According to the Centers for Disease Control and Prevention, bullying increases students’ risk for anxiety, depression, substance use, and academic problems. Bullying can contribute to students’ refusal to attend school and result in physical problems such as headaches, stomachaches, and sleep disruption. In extreme cases, it has led to students commit suicide or become violent. A recent report of the U.S. Secret Service’s National Threat Assessment Center found that most school shooters were bullied.

Throughout the country, states have enacted laws designed to prevent and respond to bullying and cyberbullying. While each state addresses bullying differently, most states require school districts and schools to develop policies to investigate and respond to bullying. Some states also require the implementation of bullying prevention programs.

Despite state and local provisions relating to school bullying, many affected families lack knowledge of available bullying protections and find that schools do not take their complaints seriously. When parents do report bullying, school investigations are often lackluster, with the result that complaints are frequently dismissed for lack of proof or corroboration.

When schools do intervene in response to bullying complaints, interventions often impose punishment on the other student through suspension, expulsion, or alternative school placement. These remedies typically do not address the root causes of power imbalances between students and may still leave a targeted classmate vulnerable to bullying online, in the community, or upon the other student’s return to the school. Moreover, punitive measures focused solely on the individual students involved in a bullying incident do little to engage other stakeholders or foster the creation of a positive school climate, which research suggests is vital to protect students from bullying.

Here in Illinois, where the authors work and study, few attorneys practice in the area of school bullying. Recognizing this gap in legal representation, our legal clinic, the Civitas ChildLaw Clinic at Loyola University Chicago School of Law, recently began representing bullying victims. In this article, we discuss the development of legal protections for bullying victims and share two case examples illustrating the potential for achieving positive outcomes. Though bullying cases may seem modest in their scope, legal advocacy can yield impactful outcomes, not just for the involved students but also for school staff and the student body as a whole. By highlighting these examples, we hope to encourage more family and school-side attorneys to see the value in this work.

Background and Context

At Loyola University Chicago’s Civitas ChildLaw Clinic, law students working under the supervision of experienced clinical faculty provide legal representation to children in a range of legal proceedings—child welfare, domestic relations, education, and other areas.‌

In the fall of 2014, the ChildLaw Clinic and the Chicago Lawyers’ Committee for Civil Rights collaboratively launched the Chicago “Stand Up for Each Other” (SUFEO) project. Modeled on similar projects developed in New Orleans and New York, SUFEO began as a student-run organization that provides information to parents and kindergarten through twelfth-grade students on their rights relating to school suspensions. The project aims to facilitate dialogue between parents and schools to help students remain in school and be more successful moving forward. SUFEO engages 1Ls and 2Ls in this work, as a way of exposing students to outreach, intake, and advocacy early in their law school careers.

During the 2018–2019 school year, SUFEO and the ChildLaw Clinic added bullying cases to their school suspension work. Our advocacy has focused on cases in which the targeted client’s goals are to seek protection and support, rather than to punish the student engaging in bullying behaviors. The ChildLaw Clinic’s work relies on a series of bullying laws passed in Illinois, most notably the Prevent School Violence Act, which was enacted in 2010. This law defines bullying and specifically prohibits bullying based on actual or perceived characteristics, including race, national origin, disability, sexual orientation, and gender-related identity or expression. The law requires each school to adopt a bullying policy consistent with the act.

The clinic has also relied on the Anti-Bullying Policy adopted by Chicago Public Schools (CPS). This policy comprehensively outlines the steps required for a bullying investigation, including individual interviews of all involved parties in a private setting. The policy also outlines a comprehensive response:

  • identifying school risk factors for bullying and developing a comprehensive strategy for school climate improvement and social-emotional learning;
  • supporting the targeted student through the creation and implementation of a safety plan;
  • if the student has a disability, convening an individualized education program (IEP) meeting to consider whether the student requires additional or different special education supports to address concerns like social skills and other risk factors creating vulnerability to bullying;
  • implementing interventions and consequences that address the root causes of the bullying behaviors exhibited by students; and
  • for incidents affecting the school community, creating spaces to discuss the incident, its impact, and how any harm can be repaired.

The CPS code of conduct also expressly stipulates responses that should not be taken, such as dismissing student behavior as not serious, assuming that bullying has no impact, soliciting an apology, or engaging in peace circles or mediation between the students. The code of conduct recognizes that in a bullying situation, the inherent power differential between students limits the utility of many forms of alternative dispute resolution; therefore, the code prohibits using mediation or restorative practices to bring the students together unless interventions have been taken to address this differential.

The two cases below illustrate the range of issues and challenges that may arise during the course representation in bullying cases.

Robert’s Case

In March 2019, a frustrated parent, Pam, called the ChildLaw Clinic in search of legal advocacy for her fourth-grade son, Robert. Robert, who is African American, was being targeted with homophobic and racial slurs at his school, which served mostly Latinx students. Interactions with the other students turned physical on multiple occasions. At some point, one student shared in front of the class that her mom told her not to play with Robert because he was black. The teacher, unsure of how to respond, changed the topic.

Pam requested meetings with both school administrators and the parents of the students engaging in bullying behavior toward her son, but before our engagement, there had been no meaningful follow-through on these requests. Pam was concerned that the school did not appear to take seriously her concerns regarding other students’ actions toward Robert. In contrast, whenever the school had concerns about Robert’s behavior, Pam immediately received letters and phone calls discussing possible disciplinary actions.

When the ChildLaw Clinic became involved, it was evident that Pam was at the end of her rope. She was concerned that Robert’s grades were declining because of these experiences. Robert felt that the principal did not like him, and he was apprehensive about attending school functions where he was certain to see her.

At the time Pam called our office, she had already filed a bullying complaint with the school district and she was seeking representation at an upcoming meeting with school and district staff. When our office agreed to represent the family, the school district also sent its lawyer.

The first meeting was volatile. Both the parent and the school were extremely frustrated, and the relationship had completely broken down. Our office engaged in a collaborative problem-solving model of lawyering with the school district attorney and school and district staff. Our efforts focused on the creation of a comprehensive safety plan, staff training, and steps to foster a more culturally sensitive school climate. During that initial meeting, the parent agreed to provide the school with a full log of all past bullying incidents, and the school agreed to investigate those incidents using the protocols outlined in the CPS Anti-Bullying Policy. The parties agreed to reconvene to discuss the results of the bullying investigation and create a safety plan for Robert.

After that initial meeting, we met with the school district team five more times over the following six-month period. At these meetings, we discussed the progress of the bullying investigation, additional incidents that had arisen, the school’s response, and the school district’s progress in implementing broader remedies. The school substantiated many of the allegations of bullying, and the school and parent agreed to the following:

  • Creation of a safety plan to protect Robert from bullying, with particular attention to time during recess and after-school activities when most of the bullying incidents occurred. During these time periods, the school designated a staff member to whom Robert could report bullying.
  • The monitors supervising unstructured time would be appropriately trained on how to work with children and on how to report bullying in accordance with the district’s procedures and protocols.
  • School personnel would undergo professional development training regarding biased-based bullying, both online and over the summer.
  • The students would be taught about biased-based bullying. The school would also expand its focus on Black History Month and offer programming in a manner similar to the school’s celebration of National Hispanic Heritage Month.

There were a number of challenges throughout this process. It took a great deal of advocacy to ensure that the bullying investigation was properly conducted, and the parent and the school district disagreed about some of the findings. For example, the school determined that some of Robert’s allegations of bullying were unsubstantiated solely because no other students or staff had heard or observed the incidents in question. Rather than evaluating whether Robert’s accounts of the incidents in question were credible, investigators discounted Robert’s claims solely because the other students denied them and there were no corroborating witnesses.

In addition, it took a great deal of time and collaboration for the school staff to recognize the purpose of a safety plan. School staff sometimes attempted to put restrictions on Robert’s movements, rather than restricting the movements of the students who had engaged in the bullying behavior. As a result, Robert was at times separated from his friends and forced to stand by his teacher. He began to feel like he was in trouble and that he had done something wrong by reporting his experiences at school. This issue was addressed at a meeting, and the administration was receptive to making requested changes to the safety plan.

The ChildLaw Clinic conducted a follow-up meeting at the school this fall, about six months after the initial meeting. In this meeting, Pam shared that her son finally had his “sparkle” back. Both Robert’s good grades and his desire to go to school had returned. Through this process, a 1Lstudent advocate, who started out mainly observing a 2L on the case, built her knowledge and confidence and was able to take the lead role in the meeting as a 2L.

Aaron’s Case

Aaron’s mom, Jessica, contacted our clinic in the spring of 2019. Like Robert, Aaron was a fourth-grade student who was getting into trouble for behaviors prompted by his being teased by peers at recess. After one incident, the school suspended Aaron for several days. Our clinic represented the student in a suspension appeal and in a meeting to develop a safety plan. The suspension was upheld; however, the school finally acknowledged that Aaron was being targeted by other students. The school reasoned that Aaron’s poor social skills triggered students and caused them to lash out at him.

The school implemented a safety plan that included provisions for more adult monitoring during unstructured times such as lunch and recess. The plan also included a check-in/check-out (CI/CO) system, whereby Aaron checked in for five minutes in the morning with a trusted adult and five minutes in the afternoon before leaving the school. As a result of these relatively simple interventions, Aaron’s negative behaviors and experience of bullying diminished significantly, and school staff reported that the CI/CO system appeared to help stabilize him during the school day.

In addition, the school had not considered special education eligibility or the need for related services for Aaron, likely because Aaron performed so well on standardized tests. We urged the school to recognize that the noted social deficits and the gap between his grades and test scores suggested that Aaron might be a student with a disability in need of services. The school agreed to conduct an evaluation to consider special education eligibility. Jessica also secured an outside evaluation for Aaron.

The evaluations revealed that Aaron was “twice exceptional.” Aaron was diagnosed with attention-deficit/hyperactivity disorder (ADHD), unspecified disruptive impulse-control, and conduct disorder. These disorders made it difficult for Aaron to concentrate in class, turn in assignments, and behave appropriately during unstructured periods at school. Aaron qualified for special education services as a student with an “Other Health Impairment.” He was given paraprofessional support during lunch and recess, time with a special education teacher to improve executive functioning, and social work to increase his skills in this realm. A behavior intervention plan (BIP) was designed to help redirect Aaron’s problematic behavior and, based on the successful experience implementing the safety plan, provide regular check-ins throughout the day with a staff at the school.

In the fall of 2019, we had a follow-up IEP meeting with the school. Over the span of just a few months, the tone of the school meeting had transformed into an extremely positive one. School staff were proud of Aaron, his behavior, his grades, and his overall improvement. The staff explained how Aaron was thriving with this highly structured routine. The BIP had properly trained staff on Aaron’s challenges, which allowed them to catch Aaron’s frustrations before they erupted into a physical altercation with another student. Aaron’s grades had also improved to a level where he could potentially test into the school’s gifted program next year. Due to the increased supports, Aaron’s teachers no longer see him as a burden in their classes. They recognize his strengths and contributions to his classroom and school community.

Since these meetings, Jessica reports she has more confidence in advocating for her son’s needs. She shared, “I always tell them I have the best team of lawyers on my side, and that makes them listen now.”

Our Takeaways

These two cases highlight several themes that have emerged in our work on bullying cases. The first is the importance of taking an approach focused on positive, social-emotional strategies rather than a punitive approach. Based on the ChildLaw Clinic’s long-standing work on behalf of children, we understand that misbehavior of children is normal, expected, and developmentally appropriate, and that it is the role of school staff to teach students positive social and emotional skills to respond to emotions that they are experiencing. In addition, when young people have mental health needs and have experienced trauma at home or in the community, they need additional supports at school in order to be successful. We see bullying cases as an opportunity to build positive social-emotional strategies aimed at addressing the root causes of bullying behaviors.

In addition, we have seen that addressing bullying requires school-wide strategies so that staff and teachers can become better equipped in responding to bullying when it occurs. Achieving school-wide training and cultural changes is far more likely to arise from collaborative problem solving than from an adversarial approach. We have been able to work with school staff and with social-emotional learning specialists from the district to explore gaps in training and to link schools to training resources.

We have also seen the value of a robust safety plan, focused on building supports for bullied students and on managing times when they come into contact with students engaged in bullying behavior. Often the initial draft of a safety plan takes a “blame the victim” approach, where the focus is on minimizing the behaviors of the student who is the target of the bullying. It is also very common for a safety plan to put the onus entirely on the student to inform staff of the bullying. Schools will defend this tactic, saying it is important for students to develop “self-advocacy.” While we strive for youth to work toward independence, students must also be able to focus on their learning. Ultimately, it is the staff’s responsibility to ensure a safe environment for their students.

We have also found that many of the problems related to school bullying occur during unstructured time. Some schools use less-trained staff, volunteers, or outside staffing agencies, rather than teachers or experienced school staff, for less structured periods, such as school drop-off time, recess, and after-school programming. These staff, volunteers, or substitutes may not receive the same level of training and professional development opportunities as regular school staff. In Robert’s case, for example, the school hired Spanish-speaking parents from the community to monitor recess and lunch, without realizing that they did not have a single bilingual monitor, leaving English-speaking students feeling that they did not have anyone with whom they could speak if a situation arose. It is also likely that schools do not adequately orient volunteers or substitutes to their students’ special education needs, leaving schools open to disability-specific claims. Usually, just citing these issues is enough to get the school to agree to use better-trained volunteers to monitor lunch time, recess, and after-school programming.

Taking on bullying cases can be an upstream approach to lawyering, allowing for schools to address the student’s educational concerns before the student’s educational trajectory has been fundamentally altered. While the relationships between the parent and the school may be frayed in these types of cases, they are frequently not beyond repair.

Our experience has also illustrated that these cases are a good fit for law students and pro bono attorneys. Because of the nature and scope of the issues, we have achieved success with relatively straight-forward school-based meetings, such as bullying complaints, suspension appeals, safety planning meetings, or IEP meetings for students with disabilities. While other areas of education law can be very technical, this work often demands strong communication, case management, and problem-solving skills, as well as common sense. These are attributes that do not require extensive grounding in education law.

Law students have shared how fulfilling they find these cases to be and report that their cases reconnect them to what brought them to law school in the first place. Through working on these types of cases early in their legal careers, law students are able to practice legal skills like client intake, records review, professional email communication, and advocacy. They feel personally and professionally rewarded for the work.

Conclusion

In today’s world, the stakes are too high to continue to dismiss bullying as a benign reality of childhood. When teasing becomes bullying and interferes with a student’s education or well-being or both, there are legal tools available to protect affected students. Using these strategies can help create a paradigm shift in schools so children can feel safe, engaged, and able to learn. 

Jackie Ross is a staff attorney and Miranda Johnson is a clinical professor at the Civitas ChildLaw Clinic at Loyola University Chicago School of Law, where B. Alvarez and Theodore Gelderman attend as second year law students.


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