If it were not clear enough already, two recent decisions highlight the significant liability that may be imposed on school districts for failure to take effective action to prevent and respond to bullying, harassment and intimidation. These decisions require districts to be proactive and aggressive in implementing measures to address inappropriate conduct.
Lee v. Franklin Township Board of Education
New Jersey Division on Civil Rights, April 12, 2011
First, on April 12, 2011, the New Jersey Division on Civil Rights issued a Finding of Probable Cause in a matter involving the Franklin Township (Gloucester County) Board of Education, in which a student was subjected to repeated racial name-calling and taunting for four years, from third to sixth grade. Her parents complained numerous times and requested a transfer, but were denied. School officials disciplined individual offenders and conducted several school-wide initiatives to address the harassment. They presented "Teaching Tolerance" videos and videos relating to black history and civil rights, held cultural diversity programs and assignments, sent a letter to all parents with information about "the Golden Rule,” and "remind[ed] the children to be mindful of inappropriate comments and conduct .. which could be hurtful to other students." Even with these efforts, however, the principal was reported to have stated that he "[did] not know how to stop the racial problems in the school and just [did] not know what to do."
The Division found that the evidence "supports a reasonable suspicion that [the district] failed to take sufficient action that was reasonably calculated to stop the racial harassment." It further found that "[t]o the extent that racial tolerance and appreciation were addressed at all, it was done in what appeared to be relatively superficial ways, such as viewing videos about civil rights history or prominent black leaders." Although it acknowledged that the district had a policy prohibiting harassment, bullying and intimidation, the Division stated that, "the existence of such a policy alone cannot shield a district from potential liability.” It found “insufficient evidence to show that Respondent meaningfully and fully explored the entire range of possible responses, given the significant duration and type of harassment alleged here."
T.K. v. New York City Department of Education
U.S. District Court for the Eastern District of New York, April 26, 2011 (Unpublished)
In a decision issued April 26, 2011, the United States District Court for the Eastern District of New York ruled that even if a parent does not complain, unremedied bullying of a student with disabilities may not only create a hostile educational environment, it also may violate the student's right to a free appropriate public education under the Individuals with Disabilities Education Act. The court stated:
When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action... If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination.
Anti-Bullying Bill of Rights Act, P.L. 2010, Chapter 122
Consistent with these decisions, the recent amendments to New Jersey's Anti-Bullying Bill of Rights Act require districts to adopt and submit revised policies on harassment, intimidation and bullying to the executive county superintendent by September 1, 2011. The amendments also impose several new requirements, including:
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Required training for school district personnel, including board members
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Public reporting of incidents of harassment, intimidation and bullying
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Appointment of an anti-bullying specialist and school safety team in each school
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Appointment of a district anti-bullying coordinator
With the stated intent "to strengthen the standards and procedures for preventing, reporting, investigating, and responding to incidents of harassment, intimidation, and bullying of students," the amendments largely eliminate any discretion for school districts to establish their own procedures. Among other things, they mandate that district policies require that any employee witnessing or receiving a reliable report of harassment, intimidation or bullying report it within two days; that the principal initiate an investigation within two days; that the investigation be conducted by the anti-bullying specialist and completed within 10 days of the report; and that the results of the investigation be reported to the superintendent, the board of education, and the parents of all students who are "parties to the investigation."
Implementation of policies and procedures, however, raises numerous legal issues. Each board may decide, and must describe in its policy, the "type of behavior expected from each student" and "consequences and appropriate remedial action" to be taken in the event of violation. Also, each board may establish its own definition of "harassment, intimidation and bullying," although it must be no less inclusive than the detailed definition included in the statute, and the statutory definition has been amended to include conduct occurring "off school grounds … that substantially disrupts or interferes with the orderly operation of the school or the rights of other students..." Any board considering a definition that is more expansive than the statutory definition will need to be careful of First Amendment concerns that may arise from overly broad restrictions on protected speech. Similarly, any finding that harassment has occurred off school grounds based on a finding of "substantial disruption" will need to balance the intent of the policy with respect for private and possibly constitutionally protected activity.
Detailed guidance on the new requirements is available from the New Jersey Department of Education and many other sources. Riker Danzig strongly recommends review by legal counsel before boards of education and school officials take action in conformance with these requirements.
