ARTICLE – PROTECT THE INNOCENT

March 2013, Volume 49, No. 3

Bullying Basics

William Friedlander

Bullying is now recognized as a serious problem, and bullying litigation is an emerging area of law. Here are some points to consider when you are presented with a case that involves someone who was preyed on.

For many people, the term “bullying” recalls that schoolyard tough kid who taunted and threatened other kids and frequently got sent to the principal’s office. Authorities probably ignored the bully’s conduct or wrote it off as a rite of passage into adolescence.

Today, however, bullying is a big deal. In the 13 years since the Columbine school shootings, schools, service agencies, and even workplaces have begun to address bullying as a serious social problem. Forty-six states now have antibullying laws or policies on the books, often tucked into education codes or school law.1 And increasing awareness of social media’s power to expand bullies’ reach has drawn attention to the problem and to policies and programs that aim to identify, confront, remedy, and prevent bullying. Media coverage of tragic stories eventuating in criminal and civil lawsuits also has helped bring the problem into focus.2

The U.S. Department of Health and Human Services (HHS), on its website www.stopbullying.gov, defines bullying as unwanted aggressive behavior that involves a real or perceived power imbalance and is repeated, or has the potential to be repeated, over time. The power imbalance can be one of physical strength, popularity, status, peer support, or access to potentially hurtful information. The repetition marks a pattern or intentionality in hurtful conduct that distinguishes it from an accident or angry outburst.3

HHS points out that bullying can be verbal (teasing, taunting, or threatening harm), social/relational (maliciously excluding, humiliating, or spreading rumors), or physical (hitting, spitting, pushing, or theft).4 In the school context, statistics show that most bullying occurs on school premises, although many incidents occur on playgrounds, on the bus, or on the way to or from school.5By law or by district policy, schools are becoming more cognizant of bullying that occurs online when it has the potential to disrupt school programs or a student’s education.6 State law definitions include variations on the HHS themes of unwanted aggression, power imbalance, repetition, location, and consequences.7

The Centers for Disease Control and Prevention’s Youth Risk Behavior Surveillance System indicated in 2012 that about 20 percent of high school students were bullied on school property.8 The Bureau of Justice Statistics School Crime Supplement reported in 2009 that 63 percent of all secondary students nationwide had been bullied.9 Also, HHS recognizes that bullying is a problem for postsecondary young adults who may experience bullying on college campuses, in the workplace, or in social interactions beyond the agency’s reach. In these settings, bullying acts are likely to constitute campus code infractions, criminal or civil harassment, stalking, hate crimes, or civil rights violations, for which cognizable administrative, civil, or criminal recourse exists.10

Bullying can have dire and enduring consequences. At one extreme, lawsuits and news reports highlight student suicides provoked by bullying or harassment. At the other end of the spectrum, studies of bullies and victims show that childhood victims frequently become bullies, abusers, or perpetrators of violence themselves, particularly when other avenues of recourse for being bullied are unavailable or ineffective. In between, a host of physical and psychological injuries may result from being bullied, ranging from bones broken in physical assaults to post-traumatic stress disorder, depression, low self-esteem, sleeplessness, eating and behavior disorders, and poor school performance.

Bullies also may experience many of the same physical and psychological disorders, and they may pursue other behavior that places families, friends, bystanders, or others at risk. Some laws and policies addressing online bullying recognize that the reach of bullying may extend beyond the intended victim to entire classrooms, school populations, or the educational environment.11

The bullies and the bullied

Because power imbalance is inherent in bullying, it’s not surprising that bullies often are bigger, older, or more streetwise than their victims. It’s also not surprising that victims often are members of vulnerable or minority groups. But bullies and their victims sometimes share characteristics: social or economic marginalization, isolation, low self-esteem, lack of support at home, frequent moves, and poor school attendance or performance.

In cyberbullying, bullies and victims may be even harder to distinguish. Online anonymity may mean that the power imbalance rests solely or primarily on access to technology and information. Some research suggests that cyberbullies may be victims of face-to-face bullying who take revenge and, alternatively, that some face-to-face bullies may be cybervictims who have been pushed to the point of a violent outburst.12

Such overlaps in the characteristics of bullies and victims suggest that remediation and prevention should not target particular groups or characteristics for observation but instead aim to improve the whole-school setting, with policies and practices that build respect, communication, a sense of community, and clear lines of reporting, investigation, and accountability. The HHS website emphasizes integrity and consistency in the processes of reporting, investigation, and response.13 HHS suggests that blaming the bully alone for conduct that may arise from a host of personal, familial, or social challenges is not likely to produce behavioral change—a suggestion echoed in state statutes that place some responsibility for injuries arising from bullying on the bully’s parents.14

Legal recourse

Bullying laws in 45 states direct school districts to adopt bullying policies, with 41 states providing model policies.15 A bullying victim’s first line of recourse should be invoking the school’s reporting and investigation process, as well as requesting any supportive services—such as security, counseling, or mental health services—that are required or advised by law or policy. Of course, if the bullying involves assault, use of weapons, threats of violence, criminal harassment, or stalking, parents, counsel, and school authorities should call in law enforcement. This initiates any appropriate criminal investigation and, concurrently, sets the stage for intentional tort litigation.

Likewise, if cyberbullying includes threats of violence, pornography, invasion of privacy, or stalking, a state or federal cybercrime investigation should ensue.16 And injunctive or adminis­trative action may sanction a school’s or ­district’s failure to implement pro­cedures or practices set forth in a state or district antibullying policy.17

But what if injury arises from school policy-development or policy-­enforcement failures? What if repeated reports of bullying are ignored or relegated to the back burner? State law legal remedies might include claims against the perpetrators (and/or their parents, depending on the state) for assault, harassment, defamation, and intentional or negligent infliction of emotional distress,18 and against the school, district, or particular personnel for negligent implementation or enforcement of an antibullying policy or supervision of the bully or victim.19 Recoverable damages may include compensation for physical injury or wrongful death, post-traumatic stress or other emotional distress, humiliation, and pain and suffering, as well as exemplary or punitive damages.20

State government immunity may protect schools and personnel from litigation, or it may hedge claims against public entities with notice requirements and strict time limitations.21 But in states where immunity is not an issue, or where procedural requirements are duly met, a negligent supervision claim resting on allegations of duty, knowledge and breach, causation, and injury may bring a victim some justice and appropriate remediation, and it may bring a lax district into compliance with state bullying policy mandates.22

Mandates imposed by federal civil rights law often are implicated in bullying cases.23 They include the anti-harassment­ protections of Title VI (race-based discrimination), Title IX (gender-based discrimination), the Americans with Disabilities Act, and other disability-directed statutes. Harassment based on particular religions or ethnicities, such as anti-Jewish, anti-Muslim, or anti-Sikh harassment, may give rise to an action grounded in Title VI or Title IV; and additional civil rights claims under 42 U.S.C. §1983 and §1985 may be sustainable when other constitutional or statutory rights are violated.

Counsel handling bullying cases should be familiar with the standards of hostile environment, responsible employee, deliberate indifference, special relationship, state-created danger, and qualified immunity, which frame and often limit student-on-student harassment claims, particularly under Title IX and §1983.24

Evidentiary challenges

Common to all these legal theories is an element of knowledge and inaction by school authorities. Primary sources of evidence include district policies, reports, and student records. District antibullying policies—and related materials such as student codes of conduct, statistical reports mandated by state law, and information included in antibullying training materials—generally are matters of public record, available by Freedom of Information Act request or routine discovery demand.

Student educational records, however, generally are deemed confidential under the Family Educational Rights and Privacy Act of 1974 (FERPA), as well as state privilege or confidentiality laws—at least without a court order to disclose records relevant to particular claims. Notably, campus public safety records are not subject to FERPA’s student privacy protections; nor are the final results of disciplinary proceedings sanctioning crimes of violence, including name, violation, and sanction.25 State statutes and common law also permit release of such records, which may be relevant on the issue of the foreseeability of student bullying.26

Relevant student or investigative records might include student disciplinary history, daily logs of administrators and security guards, incident-specific investigative or police reports, and records of prior assaults in the same location.27 A court order may permit discovery of relevant staff employment records bearing on the foreseeability of student bullying or the adequacy of staff or district response.28

Retaining an expert in school bullying, school security, injury, or causation may be critical to your case, but it is likely to prompt challenges from counsel defending school decisions.29 Expert testimony may be even more useful in cases involving cyberbullying, where emerging questions involving perpetrator identity and free expression, social media, and school or parental responsibility create technological and legal challenges.30

But the bigger challenge may be working with the plaintiff victim or parents, or with the school-age children who are likely to be the primary witnesses of bullying. There is the issue of young children’s competence to testify and the challenge of dealing with depressed, anxious, or frightened victims, but also a substantial time lapse between the incident and the report and an even longer period between the report and trial. This delay opens an already fragile witness to cross-examination over hazy detail, blurred memory, or inconsistencies in accounts over time.

Trial suggestions include allowing other, less vulnerable witnesses to recount their observations of bullying conduct, so that the victim need only confirm conduct, chronology, or details, and adducing expert testimony regarding bullying and its impact, school culture, or school security.31

Court watchers have reported significant verdicts and settlements in bullying cases brought against school districts under state and federal law. Civil rights statutes permit attorney-fee awards and sometimes punitive damages, if the hurdles of civil rights statutory standards and immunities are overcome. Litigation may not only help make the victim whole but also may prompt legislators, school districts, administrators, parents, and students to take action to address the problem.32

Notes:

1. Victoria Stuart-Cassel et al., Analysis of State Bullying Laws and Policies, U.S. Dept. of Educ. (2011).
2. See e.g. Geoff Mulvihill, Parents of Tyler Clementi, Rutgers Student Who Committed Suicide, Decide Not to Sue University, Huffington Post (Oct. 5, 2012), www.huffingtonpost.com/2012/10/05/parents-tyler-clemente-sue-lawsuit-rutgers-webcam_n_1943754.html; MSNBC,Parents of ‘Bully’ Teen Appeal Dismissal of Lawsuit Over Son’s Suicide(June 29, 2012),//usnews.nbcnews.com/_news/2012/06/29/12483803-parents-of-bully-teen-appeal-dismissal-of-lawsuit-over-sons-suicide?lite; Natalie DiBlasio, More Bullying Cases Have Parents Turning to Courts, USA Today (Sept. 11, 2011),//usatoday30.usatoday.com/news/education/story/2011-09-11/bullying-lawsuits-parents-self-defense-courts/50363256/1.
3. U.S. Dept. of Health & Human Servs., Bullying Definition,www.stopbullying.gov/what-is-bullying/definition/index.html. Some resources add to the base definition an element of intentionality. See U.S. Dept. of Health & Human Servs., Off. of Adolescent Health,October 2011: Bullying and Adolescent Health,www.hhs.gov/ash/oah/news/e-updates/eupdate-7.html (intent to cause harm); Brenda Morrison & Roxana Marachi, U.S. Dept. of Educ., Off. of Safe and Drug-Free Schs., Understanding and Responding to School Bullying (Mar. 17, 2011) (webinar; link to presentation slides at//safesupportiveschools.ed.gov/index.php?id=9&eid=16) (intent to cause distress).
4. U.S. Dept. of Health & Human Servs., Bullying Definition, supra n. 3.
5. Id.
6. Id.
7. See e.g. 24 Pa. Consol. Stat. Ann. §13-1303.1-A (2008).
8. Ctrs. for Disease Control & Prevention, Youth Risk Behavior Surveillance Sys. (2012).
9. Natl. Ctr. for Educ. Statistics & Bureau of J. Statistics, School Crime Supp. (2009); see also Natl. Ctr. for Educ. Statistics (NCES), Student Reports of Bullying and Cyber-Bullying: Results from the 2007 School Crime Supplement to the National Crime Victimization Survey (May 2011), nces.ed.gov/pubs2011/2011316.pdf; and Natl. Ctr. for Educ. Statistics, Student Reports of Bullying and Cyber-Bullying: Results from the 2009 School Crime Supplement to the National Crime Victimization Survey (Aug. 2011), nces.ed.gov/pubs2011/2011336.pdf.
10. See U.S. Dept. of Health & Human Servs., Young Adults,www.stopbullying.gov/what-is-bullying/related-topics/young-adults/index.html.
11. See U.S. Dept. of Health & Human Servs., Effects of Bullying,www.stopbullying.gov/at-risk/effects/index.html.
12. See Morrison & Marachi, supra n. 3; U.S. Dept. of Health & Human Servs., Off. of Adolescent Health, supra n. 3; Sameer Hinduja & Justin W. Patchin, Overview of Cyberbullying, White House Conference on Bullying (Mar. 2011),//www.uwec.edu/patchinj/cyberbullying/white_house_conference_materials
    _Hinduja%7BRDhref+%7DPatchin.pdf.
13. U.S. Dept. of Health & Human Servs., Respond to Bullying,www.stopbullying.gov/respond/index.html.
14. See Morrison & Marachi, supra n. 3; see also In re William George T., 599 A.2d 886 (Md. Spec. App. 1992) (identifying states with parental responsibility laws).
15. See Stuart-Cassel et al., supra n. 1.
16. See U.S. Dept. of Health & Human Servs., Stop Bullying on the Spot,www.stopbullying.gov/respond/on-the-spot/index.html, and Report Cyberbullying, www.stopbullying.gov/cyberbullying/how-to-report/index.html.
17. See e.g. Santoro v. Town of Hamden, 2006 WL 2536595 (Conn. Super. Aug. 18, 2006); L.W. ex rel. L.G. v. Toms River Regl. Schs. Bd. of Educ., 915 A.2d 535 (N.J. 2007); but see N. Syracuse C. Sch. Dist. v. N.Y. St. Div. of Human Rights, 19 N.Y.3d 481 (N.Y. 2012).
18. Dorie Turner & Greg Bluestein, Victims of Cyberbullying Fight Back in Lawsuits, Business Week (Apr. 27, 2012),www.businessweek.com/ap/2012-04/D9UD9QQ00.htm.
19. Cf. Doe ex rel. Farley, Piazza & Assoc. v. Gladstone Sch. Dist., 2012 WL 2049173 (D. Or. June 6, 2012) (negligence per se claim for failure to enforce state bullying law); Smith v. Poughkeepsie City Sch. Dist., 41 A.D.3d 579 (N.Y. App. Div. 2d Dept. 2007) (negligent supervision based on district’s alleged knowledge of perpetrator’s bullying).
20. DiBlasio, supra n. 2.
21. See e.g. 42 Pa. Consol. Stat. Ann. §§8542(a), (b) (1980); S.C. Code Ann. §15-78-60(25) (2012); see also Galloway v. Chesapeake Union Exempted Village Schs. Bd. of Educ., 2012 WL 5268946 (S.D. Ohio Oct. 23, 2012); Hancock v. N. Sanpete Sch. Dist., 2012 WL 3060118 (D. Utah July 25, 2012).
22. See e.g. Moore v. Houston Co. Bd. of Educ., 358 S.W.3d 612 (Tenn. App. 2011).
23. See U.S. Dept. of Health & Human Servs., Federal Laws,www.stopbullying.gov/laws/federal/index.html; see also U.S. Dept. of Educ., Off. for  Civil Rights, Dear Colleague Letter (Oct. 26, 2010),www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201010.pdf; see e.g. Price ex rel. OP v. Scranton Sch. Dist., 2012 WL 37090 (M.D. Pa. Jan. 6, 2012).
24. See Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629 (1999) (Title IX claim); cf. Smith v. Guilford Bd. of Educ., 226 Fed. Appx. 58 (2d Cir. 2007) (§1983 claim based on Individuals with Disabilities in Education Act right to a free and accessible public education); Magwood v. French, 478 F. Supp. 2d 821 (W.D. Pa. 2007) (§1983 substantive due process claim), Chambers v. N. Rockland C. Sch. Dist., 815 F. Supp. 2d 753 (S.D.N.Y. 2011) (§1983 substantive due process claim).
25. See 20 U.S.C. §1232(g) (2010); see also Culbert v. City of N.Y., 679 N.Y.S.2d 148 (N.Y. App. Div. 2d Dept. 1998); U.S. v. Miami U., 294 F.3d 797 (6th Cir. 2002); Rhaney v. U. of Md. E. Shore, 880 A.2d 357 (Md. 2005); Furey v. Wolfe, 2011 WL 597038 (E.D. Pa. Feb. 18, 2011).
26. See e.g. Alexander v. Herbert, 150 F.R.D. 690 (M.D. Fla. 1993); Cherif v. City of N.Y., 925 N.Y.S.2d 814 (N.Y. Sup. 2011).
27. See e.g. Doe v. Dept. of Educ., 54 A.D.3d 352 (N.Y. App. Div. 2d Dept. 2008); Davis v. Carmel Clay Schs., 282 F.R.D. 201 (S.D. Ind. 2012).
28. See e.g. Alexander, 150 F.R.D. 690.
29. In Matter of Doe v. Bd. of Educ. of Penfield Sch. Dist., 824 N.Y.S.2d 768 (N.Y. Sup. Ct. 2006), expert testimony regarding foreseeability and school security standards allowed the plaintiff’s case to survive a summary judgment motion in part. But in Doe v. Department of Education (54 A.D.3d 352), the plaintiff’s school security experts’ testimony was excluded. An example of defense counsel cross-examining a plaintiff security expert is summarized in Bullied Student, Experts Testify in Third Day of City Schools Bullying Trial, Baltimore Sun (Dec. 19, 2011),//weblogs.baltimoresun.com/news/education/blog/2011/12/bullied_student
    _experts_testif.html.
30. On the unique prevention and remediation challenges that cyberbullying poses, see e.g. Stacy M. Chaffin, The New Playground Bullies of Cyberspace: Online Peer Sexual Harassment, 51 How. L. J. 773 (Spring 2008); and cf. Finkel v. Dauber, 29 Misc.3d 325 (N.Y. Sup. 2010); Kowalski v. Berkeley Co. Schs., 652 F.3d 565 (W. Va. 2011);but see In re: F.P., 878 A.2d 91 (Pa. Super. 2005).
31. See Bullied Student, Experts Testify in Third Day of City Schools Bullying Trial, supra n. 29; for an overview of trial challenges, see generally Public School District Liability for Injury or Damage to Student Resulting From Bullying or Other Nonsexual Harassment by Another Student, 111 Am. Jur. Trials 123 (Dec. 2012).
32. See e.g. Abigayle C. Farris & J. Dalton Courson, Title IX Liability for Anti-Gay Bullying: An Overview, ABA Sec. of Litig., 2012 ABA Annual Meeting (Aug. 2012),www.americanbar.org/content/dam/aba/administrative/litigation/materials/2012_aba
    _annual/14_3.authcheckdam.pdf.