The Importance for School Districts to Develop, Maintain, and Effectively Implement Policies and Procedures
The disparate nature of school district responses to claims of student bullying led to different results in recent decisions from the federal appellate courts. In a September 2014 decision, the Seventh Circuit Court of Appeals upheld the trial court’s ruling, which dismissed a student’s claims against the district related to bullying she experienced at the hands of her classmates. On the other hand, an August 2014 decision from the Sixth Circuit Court of Appeals found sufficient evidence to allow a student’s claims to proceed against the district and individual district officials for harassment she experienced at school. While the results in these cases appear incompatible, the facts in each case seem to have made the courts’ jobs easy.
In the Seventh Circuit case, Doe v. Galster, the court found that the district promptly and adequately responded to each reported or observed incident of bullying involving the plaintiff. In sixth grade, a student (“TM”) erased some of the plaintiff’s class work, after which the teacher spoke with TM and explained what he did was wrong. When the gym teacher observed TM throw a ball at plaintiff in gym class, he involved a guidance counselor. The court found the involvement of guidance counselors evidence of appropriate response. When issues between TM and the plaintiff continued in seventh grade, the district again responded swiftly and reasonably to incidents about which it was aware, according to the court. The school continued to involve a guidance counselor, and took steps to separate TM and the plaintiff. All of the incidents prior to the end of seventh grade were “non-severe” according to the court. When serious violence occurred on the last day of school, the district escalated its response, involving the parents of the bullies and the victim. Ultimately, the bullies were recommended for expulsion.
In contrast to the district’s response in Galster, in the Sixth Circuit case of Shively v. Green Local Sch. Dist. Bd. of Educ., the court determined that, based on the assertions in the plaintiff’s complaint, the district could be liable for exhibiting deliberate indifference to instances of bullying. According to the plaintiff, she experienced physical, verbal, and online bullying for several years, based on her religion and gender. On more than one occasion, the plaintiff required medical attention due to the abuse of her peers. Although the victim’s family visited, emailed, and called the victim’s school on numerous occasions to complain about the bullying and to ask that something be done, the district did nothing to stop or diminish the harassment, nor were the perpetrators punished or disciplined, according to the complaint. The court concluded that if the plaintiff’s allegations were proven, the district and its individual representatives would be liable for failing to adequately address the situation and for violating the students equal protection rights. In rejecting the individual defendants’ argument that they should be entitled to immunity from the plaintiff’s claims, the court opined: “It is difficult to imagine how any school administrator could think that he would not be liable for allowing unregulated religious and gender-based persecution that spanned a four-year period.”
These cases demonstrate the importance for school districts to develop, maintain, and effectively implement policies and procedures to address bullying in the school setting. It is well worth the time spent discussing and developing policies and procedures, and training professional staff and administrators on effective implementation of those policies. Where the district’s response to instances of bullying will control the district’s liability, as well as the liability of individual district employees, ensuring an appropriate response from the point that harassment is made known is of ultimate importance.