Bullying in schools, whether involving minors or college students, whether called by another name such as teasing or hazing, is an ever increasing issue in society. In order to tackle this area of law, one first needs to define the acts that constitute the bullying. In addition, one should look at whether there is an allegation of harassment based upon the race, national origin, color, sex, age, disability, or religion. If there is an overlap, one should also look to whether the school receives any federal funding.
One place to look for that definition is on stopbullying.gov where bullying is defined as unwanted, aggressive behavior among school aged children which involves a real or perceived power imbalance that is repeated, or has the potential to be repeated, over time. For primary education in Ohio, bullying is defined in O.R.C. 3313.666, and includes electronic acts within the law.
Ohio requires each nurse, teacher, counselor, school psychologist, or administrator employed by any school district to complete at least four hours of in-service training in the prevention of child abuse, violence, and substance abuse and the promotion of positive youth development every five years, and districts are required to have a bullying policy in writing which includes the procedures for reporting, including anonymous, notifying parents, investigating and protecting the victim. The law also contains a requirement that the district administration semiannually provide the president of the district board a written summary of all reported incidents and post the summary on its web site, which is a great source of information regarding whether or not the schools are reporting the incidences to the districts.
So just how prevalent is this behavior? The 2012–2013 School Crime Supplement (National Center for Education Statistics and Bureau of Justice Statistics) indicates that, nationwide, about 22% of students ages 12-18 had experienced bullying, with almost 7% reporting being cyber-bullied. And the 2015 Youth Risk Behavior Surveillance System (Centers for Disease Control and Prevention) indicates that, nationwide, 20% of students in grades 9–12 experienced bullying with the rates among females being 24%. Given the ever-increasing effects of social media and the ability to post to a geographic circle anonymously, the pervasiveness of bullying can be expected to increase.
Determining the appropriate course of action for any given case depends, in part, on the answers to some of the following questions:
- Did the acts occur within the school grounds in physicality, on the playground or bus or at a bus stop?
- Look at the board of education’s definition to see how far the policy extends in order to determine if the school failed to follow its policy.
- Were the acts committed in cyberspace only?
- Again look at the district’s policy to determine how this area is being addressed and whether the policy was followed.
- Were the acts physical or threatening to harm someone?
- Under R.C. 2151.421, the school has a duty to report suspected abuse of a child under 18 years of age, and under 21 years of age for children with a developmental disability or physical impairment to local law enforcement or children’s services agency. A failure to make such a report provides for liability to the child for compensatory and exemplary damages.
- Did they involve rumors, name-calling, teasing, and inappropriate sexual comments?
- If race based, one can look to the Americans with Disabilities Act (ADA) 42 U.S.C. §12101 et seq.; 42 U.S.C. §1983; and, Title VI, 42 U.S.C. §2000D.
- If based upon a perceived disability, look at Section 504 of the Rehabilitation Act, 9 U.S.C. §794; and the ADA.
- If gender based bullying, claims can be brought under Title IX of the Education Amendments of 1942, 20 U.S.C. A §1681.
- Did they involve intentionally excluding someone from a group?
- Look to possible Equal Protection Claims under 1983 or ADA depending on the basis.
- Who in the school system was notified or aware of the alleged bullying?
- How has the school been made aware of the bullying act or aggressive behaviors?
- How did the school handle the report of any acts that appear to constitute bullying?
- What are the school’s policies as they relate to students feeling bullied?
- Did the acts involve a student or an employee?
- Bullying only applies to acts committed by a student directed toward another student. If it involves an employee, look at whether the school had a duty to report suspected child abuse to a local children’s services agency or law enforcement under R.C. 2151.421.
- Does the student have special needs?
- If so, then you need to look at whether violations occurred that involve the child’s IEP. Administrative exhaustion with the Ohio Department of Education is required for IEPs before these claims can be filed in any court. If a 504 Plan is involved, the U.S. Department of Education’s Office of Civil Rights has possible mandatory exhaustion requirements.
In the case of post-secondary education, one should also understand the Dear Colleague guidance documents about the responsibilities of school administrators as they relate to bullying. These are very helpful letters that explain additional potential theories of liabilities for schools and can be found at http://www2.ed.gov/about/offices/list/ocr/docs/disabharassltr.html, http://www2.ed.gov/about/offices/list/ocr/letters/colleague201010.pdf, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html, and http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.pdf.