B ULLYING AND H ARASSMENT : W HAT EVERY SCHOOL EMPLOYEE SHOULD KNOW Adapted from North Carolina School Boards Association 2010 Spring School Law Academy North Carolina’s Bullying Law--Practical Applications for Schools Thursday, May 13, 2010

W HAT ’ S HAPPENED ? In June 2009, the North Carolina General Assembly adopted the School Violence Prevention Act. The act is in effect for the school year. School boards must adopt a policy that complies with this act by Dec. 31, 2009.

P ERCENTAGE OF STUDENTS AFFECTED BY VIOLENCE IN SCHOOLS 2007 Assaults1.2% Serious Violent Crime.4% Theft3% Bullying32.2% 80% occurred in the school building Highest percentage is within 6 th graders

F ORMS OF BULLYING Direct/Physical Indirect/Emotional Mostly used by girls Cyber bullying Twice as many girls engage in cyber bullying Lasting effect—School phobia—avoid certain places

NC L AW D EFINED “Bullying or harassing behavior” is any pattern of gestures or written, electronic, or verbal communications, OR any physical act OR any threatening communication that takes place on school property, at any school-sponsored function, or on a school bus, AND that:

Places a student or school employee in actual and reasonable fear of harm to his or her person OR damage to his or her property; OR Creates or is certain to create a hostile environment by substantially interfering with or impairing a student’s educational performance, opportunities, or benefits.

For purposes of this section, “ hostile environment” means that the victim subjectively views the conduct as bullying or harassing behavior AND The conduct is objectively severe or pervasive enough that a reasonable person would agree that it is bullying or harassing behavior.

Bullying or harassing behavior includes, but is not limited to, acts reasonably perceived as being motivated by any actual or perceived differentiating characteristics such as Race Color Religion Ancestry National origin Gender Socioeconomic status

Academic status Gender identity Physical appearance Sexual orientation Mental, physical, developmental, or sensory disability, or An association with a person who has or is perceived to have one or more of these characteristics

O THER P ROVISIONS No student school employee shall be subjected to bullying or harassing behavior by school employees or students No person shall engage in any act of reprisal or retaliation against a victim, witness, or a person with reliable information about an act or bullying or harassing behavior.

E MPLOYEES MUST R EPORT A school employee who has witnessed or has reliable information that a student or school employee has been subject to any act of bullying or harassing behavior shall report the incident to the appropriate school official. School bus drivers Maintenance/custodians all must report Cafeteria workers

O THERS SHOULD R EPORT A student or volunteer who has witnessed or has reliable information that a student or school employee has been subject to any act of bullying or harassing behavior should report the incident to the appropriate school official.

A procedure for reporting an act of bullying/harassment, including a provision for anonymous reporting. (This provision should not be construed to permit formal disciplinary action solely on the basis of an anonymous report).

A procedure for prompt investigation of reports of serious violations and complaints of any act of bullying or harassment, identifying either the principal or the principal’s designee as the person responsible for the investigation. Document complaints – need training Treat every complaint as serious

A statement that prohibits reprisal or retaliation against someone who reports an act of bullying/harassment and the consequence and appropriate remedial action for a person who engages in reprisal or retaliation. NO BULLYING!

P REVENTION E FFORTS R EQUIRED Schools shall develop and implement methods and strategies for promoting school environments that are free of bullying and harassing behavior.

D O N OT IGNORE BULLYING … BE ASSERTIVE Techniques: Sensitivity Training/Empathy Training Support for Victims Counseling for Bullies/Perpetuators It is important to have state consequences and consistency in implementing consequences

C ONSTRUCTION OF THIS L EGISLATION This law shall not be construed to permit students to be punished for expression or speech based on an “undifferentiated fear or apprehension of disturbance or out of a desire to avoid the discomfort and unpleasantness that always accompany an unpopular point of view.”

This legislation shall not be interpreted to prevent the victim of bullying or harassing behavior from seeking redress under any other available law, either civil or criminal. Can go straight to court without school addressing the issue.

B ULLYING O CCURRING O UTSIDE OF S CHOOL Ability and authority to discipline students (off campus) that may have an immediate effect to the safe and orderly environment. Connection to school Cyber bullying – Let parents know Talk with students

B ULLYING VS. F REEDOM OF S PEECH General speech- “I don’t like gays” “My religion/beliefs are…” o If directed at an individual then that is considered bullying o Free Speech Right o Teachers may not berate students

This legislation shall not be interpreted to prevent the victim of bullying or harassing behavior from seeking redress under any other available law, either civil or criminal. Can go straight to court without school addressing it.

C ONSTRUCTION OF THE L EGISLATION Nothing in this legislation shall be construed to require an exhaustion of the administrative complaint process before civil or criminal law remedies may be pursued regarding bullying or harassing behavior. (*Problematic) The provisions of this statute shall be liberally construed…

P OTENTIAL FOR L EGAL L IABILITY Legal grounds that have been used in the past to hold a school system or school employee liable for bullying/harassment: Negligent supervision (state tort law) Violations of U.S. Constitutional rights (federal law) Discrimination claims under federal law based on the fact that victims were members of a “protected class” because of their race, ethnic ground, sex or disability.

Note that in each of these types of lawsuits, the school system or the employee is not liable for the acts done to the victim but rather held responsible for failure of the school system or its employees to take adequate measures to “deal with” the bullying/harassment situation. It is the school’s responsibility to take action

N EGLIGENT S UPERVISION Cavello v. Sherburne-Earlville CSD, 110 A.D.2d 253 (3 rd Dept. NY 1985) A brother and sister were constantly bullied, sometimes physically, mostly verbally, while attending a high school. The school’s response was ineffectual and the bullies received little or no punishment. (Example: Allow victim to do home school-ineffective)

The court held that the two students asserted a valid claim for emotional suffering caused by continuing bullying that the school failed to address in a reasonable manner. “While a school is not an insurer of student safety, it will be held liable in damages for a foreseeable injury proximately related to the absence of supervision.” Obligation to note foreseeable harm

V IOLATION OF C ONSTITUTIONAL R IGHTS Flores v. Morgan Hill Unified School District, 324 F.3d 1130 (9 th Cir. 2003). Several former students of the school district sued school administration/employees and school board members alleging that the district’s response and lack of response to complaints of student-on-student anti- homosexual harassment denied them equal protection under the law.

The court ruled in favor of the students, finding that there was sufficient evidence for a reasonable jury to find that the defendants acted with deliberate indifference to harassment based on sexual orientation in violation of the Equal Protection Clause. Deliberate indifference is found if the school district’s response to harassment is clearly unreasonable. Action has to be reasonable and timely

V IOLATIONS OF A NTI -D ISCRIMINATION S TATUTES Vance v. Spencer County Public School District, 231 F.3d 253 (6 th Cir. 2000) Over a three year period, a middle school girl suffered numerous instances in which other students taunted her with vulgar language, groped her, attempted to remove her clothing, hit and shoved her and stole her homework.

The victim and her mother filed numerous complaints with teachers and school administrators. School district response consisted of “talking to” the offending students, but school officials never investigated the incidents, nor did the perpetrators receive any discipline other than “talking to.”

Finally, the victim and her mother filed suit alleging that the school system had subjected her to intentional sexual discrimination as a result of peer conduct in violation of Title IX. The jury returned a verdict in favor of the victim and awarded her $220,000, and the school system appealed.

On appeal, the court applied this standard, established in Davis v. Monroe County School Board, 526, U.S. 629 (1999): School may be held liable for student-on- student sexual harassment when the plaintiff can establish the following:

The sexual harassment was so severe, pervasive and objectively offensive that it could be said to deprive the plaintiff access to the school’s educational opportunities or benefits. [And] The school system had actual knowledge of the sexual harassment. [And] The school system was deliberately indifferent to the harassment. If doing something and it doesn’t – do something else.

Applying the standard established by the Supreme Court in Davis, the Sixth Circuit of Appeal concluded that the Spencer County Public School District was liable under Title IX for the severe pervasive student- on-student sexual harassment suffered by the plaintiff.

P ARENT /S TUDENT T RAINING Administrators and School Counselors are good candidates to educate parents and students on bullying/harassment. Students learn behavior from home—behavior is reinforced Can suspend for off campus conduct (cyber bullying Offer training to parents Students need to know that they should report If: They see bullying or If they are being bullied

S UMMARY Through the School Violence Prevention Act, the North Carolina General Assembly now requires school systems to take a number of proactive steps to prevent bullying and harassment in the schools. School systems may be held liable for failure to take adequate steps to deal with bullying and harassment. All students in North Carolina schools should be able to learn in an environment that is free from bullying and harassment.

US Department of Health and Human Services StopBullyingNow.hrsa.gov Don’t Laugh At Me Teacher Tube – Make your own video Salt in His Shoes—Michael Jordan Teaching Tolerance Paws in jobland—cfnc.org