Sexual Harassment and Bullying: Similar, but Not the Same

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Ellery M. Miller, Jr. M.A.

Eric S. Mondschein, Ed.D.

A paper presented at the Education Law Association’s 58th Annual Conference in Hilton Head, S.C. 

November 10, 2012

If you were bullied in school, you never forget.  We all remember the class bully. Either we watched in fear as others were bullied, or we were the target. These experiences are etched in our memories, a permanent scar of defeat, humiliation, shame, or embarrassment.  Often we were told to “get over it”, ignore it, or “turn the other cheek”.  We were told “boys will be boys” or that is the way “mean girls” are.  For many it has been part of the school experience, but in the great majority of incidents the results were not life threatening and the physical injuries, though painful, were usually minor.  Conversely, we might look back and consider with some chagrin and regret when we were the bully, picking on someone smaller, less popular or had less status in the group.  Incidents of bullying occurred, but in most schools they were the exception rather than the rule.

Today bullying is occurring much more often and with our new technologies, students are being bullied at school, on the bus and in their homes.  V-mail, email, twitter and Facebook have become weapons used to humiliate and bully.  Recently, bullying has received major attention in the national media as horrific stories of the results of on-going bullying have surfaced.  Sadly some of these incidents have resulted in the deaths of young people.  As the focus on bullying has grown attention to incidents of and concern about, sexual harassment has diminished.  School systems are scrambling to develop appropriate policies and procedures. A number of states have passed bullying laws that either criminalize bullying incidents or provide prescriptions for school system enforcement.[1]

It is easy to understand that sexual harassment can be a form of bullying, especially when it is used to intimidate, but it is also a form of discrimination protected by federal and state laws.  It is not a new phenomenon, but its unacceptability is now engrained in our laws and practices and girls and boys are both victims and predators.  Since the 1980’s schools have been required to address issues of sexual harassment of students.  Yet after over twenty years, nearly half of students, 7th -12th graders, in an American Association of University Women’s (AAUW) national study complained of being sexually harassed in 2010.[2]   The study indicated students used rumors, gossip, groping, and or physical assault to harass other students based on their sex or gender.  Just under thirty-three percent of students self identified as engaging in harassing behavior.

Effective implementation and enforcement of bullying and sexual harassment  policies can only occur when administration and staff are knowledgeable about each policy and can differentiate between the two and use appropriate discretion in applying the correct policy. Nan D. Stein, an education professor and sexual harassment researcher at Wellesley College in Massachusetts, has found that, “As the bullying crescendo rose, schools have been replacing their sexual harassment policies, and they’re no the same thing.”[3]  She noted that most of the teachers she works with are “well versed” in sexual harassment issues, but tend “to think about it in a physical way-groping, grabbing, that kind of stuff.”  [4]

Further complicating implementation and enforcement of these policies is the critical need to provide “due process” to both the complainant and the alleged perpetrator.  In some cases students who have suffered numerous instances of sexual harassment or bullying, have retaliated against the harasser and both the alleged harasser and victim were suspended under the school’s zero tolerance policy for fighting.[5]

This paper will:

  1. Review the major laws, regulations and case law that cover sexual harassment;
  2. Assess the current status of bullying legislation and policy development;
  3. Note the similarities and differences between bullying and sexual harassment;
  4. Explore key considerations for policy implementation;
  5. Provide suggestions and options for conducting effective training in bullying and sexual harassment prevention.

 

Sexual Harassment of Students

 

Title IX of the Education Amendments of 1972 (Title IX)[6] protects persons from discrimination based on sex in education programs and activities that receive federal financial assistance.[7] Title IX states that:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.[8]

The accompanying regulations describe the conduct that violates Title IX. Examples of the types of discrimination that are covered under Title IX include sexual harassment, the failure to provide equal opportunity in athletics, access to course offerings, textbooks, comparable facilities, counseling, and discrimination based on pregnancy.[9]

In general, sexual harassment in schools is unwanted and unwelcome behavior of a sexual nature that interferes with the right to receive an equal educational opportunity.  It is conduct that:

 

  • Is sexual in nature;
  • Is unwelcome;
  • Denies or limits a student’s ability to participate in or benefit from a school’s education program;
  • Can take different forms depending on the harasser and the nature of the harassment;
  • Can be carried out by teachers, administrators, staff, students, and non-employee third parties, such as a visiting speaker, or delivery person. Both male and female students can be victims of sexual harassment, and the harasser and the victim can be of the same sex;
  • Can occur in any school program or activity and can take place in school facilities, on a school bus, or at other off-campus locations, such as a school-sponsored field trip or a training program at another location; and,
  • Can be verbal, nonverbal, or physical.[10]

The judgment and common sense of teachers and school administrators are very important elements in determining whether sexual harassment has occurred and in determining an appropriate response, especially when dealing with young children.

 

Simply, sexual harassment is repeated unwanted and unwelcome attention of a sexual nature. Remarks may not be intended to harm, but if they have that effect, they constitute harassment. Sexual harassment creates an offensive, intimidating, or hostile learning or living environment. It may involve abuse of power or privilege. It can, as stated, be verbal, non-verbal or physical.

There are two recognized forms of sexual harassment:

Quid Pro Quo sexual harassment: “Quid pro quo” means “this for that.” An example of this form of sexual harassment occurs if a teacher (or any school employee) stipulates that a student’s grade (or participation on a team, in a play, etc.) will be based on whether the student submits to unwelcome sexual conduct. This abuse of authority is illegal regardless of whether the student refuses sexual demands or submits to them.[11]

Hostile Environment sexual harassment: Verbal, physical or visual forms of harassment, that are sexual in nature, “sufficiently severe, persistent, or pervasive” and unwelcome fall under the category of Hostile Environment Sexual Harassment. Although it is usually requires a pattern of behavior or actions, a single, severe incident, such as a sexual assault, could create a hostile environment. More commonly, a “hostile environment” is created by a series of incidents.[12]

 

Enforcement of Title IX had initially been left to the Office for Civil Rights, and if an educational institution had been found to be in violation, it only meant the possible loss of federal financial assistance.  However, in 1979 the United States Supreme Court held that students have a private right action under Title IX of the Education Amendments of 1972, and may therefore sue educational institutions receiving federal financial assistance for discrimination based on sex.[13]

In 1992, the Supreme Court held, for the first time, in Franklin v. Gwinnet County Public Schools,[14] that a high school student who was allegedly subjected to sexual harassment and abuse could seek monetary damages under Title IX for alleged intentional gender-based discrimination.[15]  The Court said that damages were available for an action brought to enforce Title IX prohibiting exclusion from participation in, denial of benefits of, or discrimination under any education program or activity receiving Federal financial assistance, since there was no indication in text or the history of the statute that Congress intended to limit available remedies.[16]

The ability of students to collect damages was limited however in Gebser v. Lago Vista Independent School District.[17] The Court held that a school district would only be found liable for damages if the following elements of a cause of action in sexual harassment cases were established:

  1. The plaintiff was subjected to gender-oriented conduct that was “severe, pervasive, and objectively offensive”;
  2. The sexual harassment denied the student an equal educational opportunity or benefit;
  3. The district had “actual knowledge” of the sexual harassment;
  4. The district was “deliberately indifferent” to the sexual harassment; and,
  5. The district’s conduct of indifference caused the students damages.[18]

In Davis v. Monroe County Board of Education[19] the Supreme Court determined that a private Title IX damages action may lie against a school board in cases of student-on-student (peer to peer) harassment, but relying on its Franklin decision, declared only where the school is deliberately indifferent to sexual harassment, of which the school has actual knowledge, and that the harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the students of access to the educational opportunities or benefits provided by the school.[20]

 

In a major sex discrimination in employment decision the Supreme Court held that same sex harassment is actionable under Title VII.[21]  The Court found no justification in the statutory language or its precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.[22] The Court explained that as some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.[23] But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.[24] Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. The Court held that sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.[25]

In addition, OCR has also held that Title IX and its implementing regulations that prohibit discrimination “on the basis of sex;” do not restrict protection from sexual harassment to those circumstances in which the harasser only harasses members of the opposite sex.[26] Title IX prohibits sexual harassment regardless of whether the harasser and the person being harassed are members of the same sex.[27]

The right to seek damages for sex discrimination under Title IX was expanded by the Supreme Court in Fitzgerald v. Barnstable School District.[28] The Court declared that Title IX was not the only means of correcting unconstitutional gender discrimination, and that claims under section 1983 of the Civil Rights Act of 1871[29] may be brought against individuals or state agencies, such as school districts for sexual harassment.[30] In relevant part, 42 U. S. C. §1983, provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

The Court’s conclusion was consistent with Title IX’s context and history. Because the Congress that enacted Title IX authorized the Attorney General to intervene in private suits alleging sex discrimination violative of the Equal Protection Clause, 42 U.S.C. §2000h–2, Congress must have explicitly envisioned that private plaintiffs would bring constitutional claims to challenge gender discrimination via §1983.[31]  Moreover, Title IX was modeled after Title VI of the Civil Rights Act of 1964, Cannon, supra, at 694–695, and, at the time of Title IX’s 1972 enactment, the lower courts routinely interpreted Title VI to allow for parallel and concurrent §1983 claims.[32] Absent contrary evidence, it follows that Congress intended Title IX to be interpreted similarly to allow for parallel and concurrent §1983 claims.[33]

The Court found that Title IX was not meant to be the only mechanism for addressing gender discrimination in schools, or a substitute for §1983 suits as a means of enforcing constitutional rights. Accordingly, the Court held that §1983 suits based on the Equal Protection Clause, remain available to plaintiffs alleging unconstitutional gender discrimination in schools.[34]

The right to seek compensatory and punitive damages for sex discrimination under Title IX and the Civil Rights act of 1871 has now been clearly established, however the bar for being successful for such a claim has been set quite high. For example in 2010, in Doe v. School Board of Broward County, Fla.,[35] the U.S. Court of Appeals for the Eleventh Circuit found that not all sexual harassment by teachers is sufficient to impose liability on a school district.[36] The Court held that supervisory officials are not liable under §1983 for the unconstitutional acts of their subordinates unless the supervisor personally participates in the alleged constitutional violation or there is a causal connection between actions of the supervising official and the alleged constitutional deprivation.[37]

The Court held that for a plaintiff (student) to be successful in defeating a summary judgment for the defendant (school district) a plaintiff must satisfy three different inquiries:

  1. Identify a person with “authority to take corrective action measures in response to actual notice of sexual harassment;
  2. Demonstrate that the notice was sufficient to alert the school of the possibility of the Title IX plaintiffs harassment; and
  3. Show the authority figure acted with deliberate indifference to the notice of sexual harassment.[38]

 

The Court does go on to note however, that the actions or omissions of high-ranking officials (principals) may be sufficient to create liability under Title IX, but may not be sufficient to create liability under Section 1983.[39]

 

Courts are continuing to address the ever-present problem of sexual harassment in schools. Recent decisions have allowed students the avenue of bringing an action under Title IX and Section 1983, but have done so without lowering the bar for establishing sexual harassment, or finding liability, thus not leaving local school boards defenseless.[40]

The Explosion of Bullying into Public View

The actions we refer to as “Bullying” have always been recognized and often labeled as “boys being boys” or “mean” girls acting out. Literature from Tolstoy, Dickens and Mark Twain’s Tom Sawyer all illustrate the challenges of dealing with bullies.  In 1999 this perception was shattered forever with the Columbine High School shooting tragedy and the subsequent focus on the bullying of the perpetrators, as one of the presumed primary factors.  Columbine was the first of many high profile incidents that shocked the nation as more and more cases of violent bullying were recorded. Recently this behavior has appeared repeatedly in the headlines and TV reports, documenting the tragic stories of young people who were bullied and who felt so victimized that they took their own lives. They include:

 

  • Fifteen year old Jeffrey Johnston of Florida committed suicide after repeatedly being bullied in school.  Johnston’s suicide in 2005 led to the passage of Florida’s Anti-bullying legislation HB 669 in 2008.[41]
  • Eric Mohat and four classmates at Mentor High School in Ohio committed suicide in 2007 after they were viciously bullied in school and school administrators took no action.  One bully told Eric in class, “Why don’t you go home and shoot yourself?”  Tragically that is what Eric did. Mohat’s parents said they would drop the suit if Mentor High School strengthened their anti-bullying policy and included a mandatory parent notification in the policy.[42]
  • In 2009 Jessica Logan‘s ex-boyfriend circulated nude photos of her that she had taken and shared with him.  He circulated the photos and she became the target of relentless and ongoing in-school bullying and cyberbullying.  She committed suicide by hanging herself. Her parents sued the ex-boyfriend who circulated the photos, other students who engaged in the harassment and intimidation and the school system.[43]
  • Another case involving sexting[44] resulted in the death by suicide of thirteen year old Hope Whitsell of Florida in 2009. [45]
  • Across the nation five gay teens committed suicide within a three week period in 2010, bringing attention to the issue of gay, lesbian, bisexual and transgender bullying and intimidation.[46]

 

Reports of suicides attributed to bullying continue.  On Easter Sunday 2012, fifteen year old Grace McComas committed suicide in Howard County, Maryland.  Her parents attribute her suicide to online harassment that had gone on for months before her death. Chaun Hightower, president of the Howard County Council of PTA’s said that she didn’t know all the circumstances of Grace’s death but she believes that cyber-bullying is a pervasive issue and that the district’s policy should be strengthened.[47]

 

What we hope can be a creative and formative period of life for young people has turned, for some, into a time of ongoing humiliation, degradation and even physical assault.   Bullying most often takes the form of verbal teasing, taunting, name calling, spreading disparaging rumors about an individual and at times escalates into violent acts including physical and or sexual assaults.  It has reached such national focus that there is now a National Bullying prevention month.  The National Bullying Prevention Month is a campaign in the United States founded in 2006 by Pacer’s National Center for Bullying Prevention of Minneapolis Minnesota to address the increasing problem.[48]

 

While policies and prevention programs are being developed there are those who question the whole concern about bullying.  Nick Gillespie raises these issues in his 2012 Wall Street Journal article Stop Panicking About Bullies.[49]  He claims the entire issue is exaggerated due to overwrought parents and school administrators who want to protect children from every potential bump and bruise.

 

Gaining insight into the degree and extensiveness of bullying is difficult as statistics vary widely depending on the definition of bullying being used and the continuum of behaviors being included from insults and taunts to actual physical assault.  The Josephson Institute of Ethics 2010 study of bullying indicated that over 43% of students surveyed indicated that they had been bullied during the six months of the study and 50% reported that they had engaged in bullying behavior.[50]  In the same study 47% of public school students reported that they were bullied, teased or taunted in a way that seriously upset them.  Fifty-three percent said they actually hit a person because they were angry.[51]

 

The U.S. Department of Education’s 2009 School Crime Supplement to the National Crime Victimization Survey[52] provides a clearer snapshot on bullying and cyberbullying in our nation’s schools.  Twenty eight percent of respondents indicated that they had been bullied at school and six percent noted that they had been cyberbullied within the study timeframe.  The locations of bullying incidents broke down as follows: Classroom – 34%, Hallway/stairwell – 47%, Restroom/ locker rooms – 9%, Schools grounds – 24%, Cafeteria – 6%, and School bus – 6%.[53]   Bullying behavior crosses racial lines as the survey indicated that 29% of Whites, 29% of Blacks, 26% of Hispanics, 17% of Asians and 27% of the collective “Other” had been victims of bullying.  The study also indicated that bullying reaches it’s apex in the 6th grade with almost 40% of students indicating that they had been bullied and then slowly declines with 20% of 12th graders reporting that they had been bullied.  Respondents to the survey also indicated that they reported the incident to an adult only 36% of the time.

 

The National Center for Education Statistics (NCES) maintains data on the frequency that school administrators respond to disciplinary issues linked to bullying on school campuses.  The data seems to mirror student reports of bullying with 39% of middle school and 20% of elementary school administrators reporting that bullying took place on a daily or at least weekly basis.  Cyberbullying related problems were reported by 19 of middle school and 18% of high school administrators occurring on a daily/weekly basis.[54]

 

So while we know bullying and cyberbullying are serious issues that occur with greater frequency than many would believe, how can we best define them?   The U.S. Department of Education’s Office for Civil Rights shared the following definition of bullying at the U.S. Department of Justice Bullying Summit in August of 2010.[55]

Bullying is a form of youth violence; it is aggressive behavior that is intentional and involves an imbalance of power or strength.  Bullying usually includes:

  1. attack or intimidation with the intention to cause fear, distress, or harm that is:
  • physical (e.g., hitting, punching, pinching, grabbing)
  • verbal (e.g. teasing, name-calling, taunting)
  • psychological/relational (e.g., shunning, rumors, social exclusion);
  1. a real or perceived imbalance of balance between the bully and victim; and,
  2. repeated attacks or intimidation between the same children over time.

 

They state that bullying can occur in person or through the use of technology, called “electronic aggression” or more commonly “cyber bullying”.[56]     Also we note that a young person can be a bully, a victim of bullying, or both a bully and a victim concurrently or consecutively.[57]

 

Lesbian, gay, bisexual and transgender youth (LGBT) students or young people who are becoming aware of or questioning their sexuality or gender identity, often find themselves the targets of various forms of bullying and harassment.[58] One of the most comprehensive surveys of over 7,000 students in all fifty states and the district was conducted by the Gay, Lesbian, and Straight Education Network (GLSEN) in 2009.[59]  The survey indicated the following:

  • 84.6% of LGBT students reported being verbally harassed, 40.1% reported being physically harassed and 18.8% reported being physically assaulted at school in the past year because of their sexual orientation.
  • 63.7% of LGBT students reported being verbally harassed, 27.2% reported being physically harassed and 12.5% reported being physically assaulted at school in the past year because of their gender expression.
  • 72.4% heard homophobic remarks, using words such as “faggot” or “dyke,” frequently at school.
  • Nearly two-thirds (61.1%) of students reported that they felt unsafe in school because of their sexual orientation, and more than a third (39.9%) felt unsafe because of their gender expression.
  • 29.1% of LGBT students missed a class at least once and 30.0% missed at least one day of school in the past month because of safety concerns, compared to only 8.0% and 6.7%, respectively, of a national sample of secondary school students.
  • The reported grade point average of students who were more frequently harassed because of their sexual orientation or gender expression was almost half a grade lower than for students who were less often harassed (2.7 vs. 3.1).[60]

 

There is a growing body of research detailing the negative impacts of bullying on the victims, bullies, victim/bullies and bystanders.

Studies of victims of bullying have indicated that they:

  • Show increased levels of anxiety, increased psychosomatic symptoms and experienced higher rates of aggressive-impulsive behavior and eating disorders.[61]
  • Are at greater risk for depression, lower self-esteem, suicidal ideations and suicide attempts.[62]
  • Have higher rates of truancy, absenteeism, disciplinary problems and lower academic achievement.[63]

 

Youth who engage in repeated bullying behavior also are at higher risk for long term negative emotional, criminal and relational issues including:

  • Higher rates of substance abuse, greater mental health problems and aggressive-impulsive behavior.[64]
  • A 60% higher rate among those who bullied of one or more arrests and 40% with at least three arrests by the age of 25.[65]
  • Increased violent responses as they age and continue bullying behavior in either the workplace or in their partner relationships.[66]

 

“Bully/Victims” who are both victims and also bully others are at especially high risk for experiencing negative emotional and psycho-social consequences including but not limited to aggressive-impulsive behavior and a pervading sense of disconnection.[67] Bystanders are not exempt either when we consider the concept of mirror neurons.  The research of Iacoboni and others indicate that when we witness an action we respond as though we were involved in that action only with less intensity. For example if we see an automobile wreck our brain reacts as if we were in the wreck but with lower intensity.[68]

 

The degree of, and the high visibility of bullying incidents, often ending with tragic consequences, and the growing litigation over these incidents, has forced school systems, the federal government, state legislators and the courts to begin addressing the issues of responsibility and liability.  They have responded by developing policies, legislation and regulations to provide guidance and clarity to school personnel, students and parents.

 

The Federal response has come primarily through the US Department of Education’s Office for Civil Rights (OCR). This office enforces civil rights laws that prohibit discriminatory action.[69]

The primary statutes that OCR enforces include:

  • Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex;
  • Title VI of the Civil Rights Act of 1964, which prohibits discrimination based n race, color or national origin; and,
  • Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability.

 

All of these statutes bar harassment or severe bullying based upon the protected classes or characteristics.  Where sex discrimination and sexual harassment have fairly clearly delineated boundaries due to federal and state legislation/regulation and the ensuing case precedents, bullying policies, legislation and regulations are in many ways in their infancy with all of the stakeholders attempting to find the appropriate response that protects victims and alleged bullies, and enables schools to engage in learning without disruption.

 

In October 2010, OCR issued a “Dear Colleague” letter (DCL) that, while not legally binding, provides comprehensive guidance across the aforementioned statutes.[70]  This letter outlined that school districts and Institutions of Higher Education (IHE’s) can violate civil rights laws or their implementing regulations when peer to peer harassment reaches the level of a hostile environment and is not properly addressed by school officials.[71]  OCR noted that often the misconduct is in plain sight, widespread, well known to student and staff and rises to the level of a hostile environment if it is “sufficiently serious, severe, pervasive or persistent so that it interferes with or limits a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school.  The liability for schools increases when the harassment is encouraged, tolerated, not adequately addressed or ignored”.[72]  The letter further reinforced the concept of “know or should have known”.[73]  Perhaps most importantly the OCR DCL gave clarity to how schools should respond to incidents of misconduct when they wrote:

    • The label used to describe an incident (e.g. bullying, hazing, teasing) does not determine how a school is obligated to respond. Rather the nature of the conduct itself must be assessed for civil rights implications.  So for example, if the abusive behavior is on the basis of race, color, national origin, sex, or disability, and creates a hostile environment, school is obligated to respond in accordance with the applicable federal civil rights statutes and regulations enforced by OCR.
    • When behavior implicates the civil rights laws, school administrators should look beyond simply disciplining the perpetrators.  While disciplining the perpetrators is a necessary step, it is often insufficient.  A schools responsibility is to eliminate the hostile environment created by the harassment, address its effects, and take steps to ensure that the harassment does not recur.  Put differently, the unique effects of discriminatory harassment may demand a different response than would other types of bullying. [74]

 

 

Title IX and Bullying

 

While Title IX does not “naturally” cover bullying under “sexual harassment language” the court has declared that when bullying is based on sex or gender and is pervasive or severe it can be a violation of Title IX.  A survey of the research indicates that the majority of bullying incidents are related in some way to sex or gender even when they don’t rise to the level of a Title IX violation.[75]  Title IX also prohibits same sex peer sexual harassment if the harassment is based on gender.  Most of these occurrences are due to harassment by those who believe that the victim does not conform to gender stereotypes and behaviors.[76]

 

As noted in the previous section, the Supreme Court set the legal framework for evaluating sexual harassment claims in two major cases: Gebser v. Lago Vista Indep. Sch. Dist. and Davis v. Monroe County Bd. of Educ.[77]  The Supreme Court gave students the right to sue schools for failing to protect them from acts of sexual harassment perpetrated by school employees and one year later extended those same rights to students predicated upon student to student harassment. Davis raised the standard of “deliberate indifference” where school officials knew of the harassment and failed to take any action.  At the same time the Supreme Court provided greater clarity about school district liability when Sandra Day O’Connor wrote in the majority opinion: “The harassment must be so severe, pervasive and objectionable that it effectively bars the victims access to an to an educational opportunity or benefit.”[78]

 

The OCR letter of October 26, 2010, reinforces how acts of bullying can violate Title IX if they are predicated on sex or gender and meet the Davis standard.  It applies a similar standard in suggesting that severe, pervasive and offensive bullying could violate Title VI if it was based on race, color or national origin of the individual/s being harassed.[79]  In the same way bullying that is severe, pervasive and offensive may violate Section 504 and Title II if the bullying behavior was based on the student’s disability and limited the student’s ability to benefit fully from the school’s education programs. Other than the specified civil rights statutes that prohibit harassment of protected classes, there is no specific federal law addressing bullying.  Secretary of Education Arne Duncan’s December 16, 2010 “Dear Colleague letter” reiterated the growing concern and devastating effects bullying can have and the need for a concerted national effort to make all of our schools safe.[80]

 

That bullying has become a national problem is reinforced by the rapid expansion of state statutes to specifically address the issue.  In 1999 there were no specific statutes concerning bullying, but by April 2011, forty-six states had enacted laws addressing the problem.[81]

 

It is not our intent to provide a comprehensive examination or analysis of state legislation, state education policies or local district or school policies and their implementation.  An excellent source for initial research is The Analysis of State Bullying Polices.[82]  The Analysis of Key Findings incorporates data through April 30, 2011.

 

For our purpose we will use the data from the publication that analyzes the forty-six states that had passed legislation by April 30, 2011.  The four states that were not included in the study are Hawaii, Michigan, Montana and South Dakota and all four had bills introduced in their 2011 legislative session.  Hawaii passed bullying legislation in June 2011.[83]  Michigan passed a bill in November 2011 after a very contentious and controversial legislative battle.[84] The Michigan bill received national coverage as the Michigan Senate included language that opponents labeled as a “right to bully” bill. The final version that passed removed the controversial language.[85] South Dakota passed anti-bullying legislation and the governor signed the bill into law on March 19, 2012.[86]

 

Key findings of The Analysis of State Bullying Polices 2011[87] included:

 

  • Forty-six states have enacted bullying laws with 45 requiring local districts to adopt anti-bullying policies.
  • Three of the forty-six states enacting laws do not define what constitutes bullying.
  • Thirty-six states include provisions in their educational codes that prohibit cyberbullying while thirteen states specify that schools have jurisdiction over off-campus behavior if it creates a hostile school environment.
  • Seventeen state bullying and harassment laws include language enumerating the characteristics of protected groups.
  • Hostile educational environment, derived from civil rights laws and litigation, is mentioned in 21 state laws and the legal concept of “reasonable person” is delineated in 15 state laws.
  • Twenty-nine states define bullying with language that encompasses “relational aggression” while eight states limit bullying to physical or verbal acts.
  • Forty-two states require school districts or LEA’s (Local education agencies) to include procedures for publicizing bullying policies.
  • Twenty-five states mandate that LEA’s develop and implement training for school personnel.
  • Twenty states mandate LEA’s to implement bullying prevention awareness or education for students.
  • Eighteen state laws detail specific requirements for monitoring and compiling data.
  • Eighteen state laws include the specific statutes under which victims of bullying (harassment of a protected class) may seek legal remedies.
  • Thirty-six require LEA’s establish reporting procedures while fifteen states mandate the requirement that school personnel report first hand knowledge of bullying; Alaska and South Carolina mandate reporting by staff and students.
  • Thirty-one states require LEA policies to outline procedures for investigating bullying complaints.
  • Eighteen states include language requiring written documentation of bullying complaints and investigations.

 

This compilation of key facts illustrates the plethora of responses to bullying by state legislatures.  Clearly state legislators have been and are concerned about bullying and have attempted to remedy the issue through state legislation.  These approaches have varied widely in expansiveness (incorporating the 16 key elements as identified by the United States Department of Education, See attachment 1) with three states providing no definition in their legislation and less than 40% requiring written documentation, monitoring and compilation of data and providing information on federal civil rights statutes that may provide redress for victims.  In most instances these laws require State Education Agencies (SEA’s) to develop model policies and require LEA’s to develop policies.  However there is again great disparity in these requirements and one could surmise great disparity in implementation and enforcement at the local district and individual school level.  Of equal concern is the criminalization of bullying that is occurring in a number of states where provisions are being incorporated into their criminal and juvenile justice codes.  Combine this with the number of cases where students fight back and are then suspended for fighting or carrying weapons for protection [88]and due process issues are arising without clear resolution.

 

Federal and state courts have responded in a multitude of ways to the growing body of litigation that has resulted from victims, their parents and alleged bullies and their parents and in a few incidents, adults accused of bullying or harassing minors. Many of these cases allege that the school / and or school administrators were negligent in protecting students’ in their care from ongoing bullying.  Other cases allege that the school either overreacted in disciplining alleged bullies or violated their first amendment rights.

 

One of the most bizarre cases involved Lori Drew and Megan Meier who lived in Missouri, and were in fact neighbors. During the summer of 2006, Drew became concerned that Meier was spreading rumors about her daughter. She created a fake MySpace contact and began communicating with Meier as a 16 year old male named Josh Evans.  After ongoing communication with Meier, Josh Evans (aka Lori Drew) told her that the world would be a better place without her. Other MySpace members whose profiles were linked with the Josh Evans profile also began to harass Meier. Shortly after these exchanges, Meier’s mother, Tina, discovered that her daughter had hanged herself in her bedroom closet.   At the time Missouri bullying / harassment laws did not cover internet cyberbullying. Missouri officials announced they would not prosecute Drew under Missouri statutes due to lack of evidence and for this reason Drew was charged under the Computer Fraud and Abuse Act (CFAA).  United States v. Lori Drew was a criminal case in which Lori Drew was convicted and then subsequently acquitted of violations of the Computer Fraud and Abuse Act (CFAA) over the “cyberbullying” of a 13 year old, Megan Meier, who died by suicide allegedly as a result of the bullying. [89]  After the federal acquittal, the Missouri legislature passed legislation to amend their harassment and bullying laws to include cyber-net bullying and harassment.

 

Cases that allege negligence on the part of school officials are making headlines across the country as detailed in This Honorable Court: Court Cases brought by Bullied Students.[90]

Conversely, other cases are making their way into federal district courts seeking redress of disciplinary action. In Kowalski v. Berkley County Schools et al, a West Virginia case,   the plaintiff sued defendants under 42 U.S.C. §1983, contending that in disciplining her for a MySpace.com webpage, which was largely dedicated to ridiculing a fellow student, defendants violated her free speech and due process rights under the First and Fourteenth Amendments. Plaintiff alleged, among other things, that defendants were not justified in regulating her speech because it did not occur during a “school-related activity,” but rather was “private out-of-school speech.”  The court upheld the district court’s grant of summary judgment noting that the defendant’s imposition of sanctions was permissible where plaintiff used the Internet to orchestrate a targeted attack on a classmate.  Further the court citing the Tinker case[91] affirmed the defendants’ recognized authority to discipline speech which “materially and substantially interfere[d] with the requirements of appropriate discipline in the operation of the school and collided with the rights of others.”[92]

 

Two Pennsylvania cases gained national attention: The first, Layshock v. Hermitage School District, involved a student who developed a false MySpace page for his principal that contained sexually offensive and debasing characterizations. The student was given among other disciplinary actions, a 10 day suspension and was barred from attending his graduation.  Layshock filed suit in the U.S. district court for Western Pennsylvania.[93]  The U.S. District Court for Western PA upheld his appeal.  The second case involved two middle school students J.S. and her friend K.L. who created a fake profile of their principal on MySpace from J.S.’s home computer.[94]  In both cases the students had downloaded and used photos of their respective principals from their local districts web- pages.  Both cases were appealed to the 3rd U.S. Circuit Court of Appeals.  The schools districts eventually requested that the Court hear the cases en banc.  In June 2011, the

Court ruled on both cases, finding that the school districts had violated the students’ free speech protections by disciplining them for using their home computers.  In “Layshock”[95] the Court cited Thomas v. Board of Education[96] and noted that the Court had upheld the student’s rights to print and distribute a satirical periodical off campus and the use of a MySpace page was even more “attenuated” than in Thomas.  In “J.S.” the Court ruled that the MySpace page was so “over the top” that no one could have or actually did take it seriously.  They noted that the principal’s response to have the profile printed and brought on campus may have actually “exacerbated rather than contained” the disruption.  Citing Tinker, the Court ruled that the school district had violated J.S.’s First Amendment Free Speech rights when it suspended her.[97]
Both Kowalski and J.S v. Blue Mountain were appealed to the U.S. Supreme Court.  The Court declined to hear either case without comment.[98]  Representatives of both sides were disappointed by the refusal.  Francisco Negron, general counsel of the National School Boards Association stated, “We’ve missed the opportunity to really clarify for school districts what their responsibility and authority is!” “This is one of those cases where the law is simply lagging behind the times.”[99]  In many ways this quote sums up the dilemma that school districts, the courts, parents and students confront as they weigh issues of free speech, maintaining educational environments where all students have access to educational programming and the provision of safety and security for students.

 

Similar, But Not the Same

 

The issuance of the Office for Civil Rights Dear Colleague Letter on October 26, 2010 clearly delineated the distinctions between harassment and bullying.  The letter noted that on the surface bullying and harassment may be similar but they are not the same and the distinction becomes most critical in the areas of prevention, investigation, enforcement and remediation. Peer harassment that is severe and pervasive and is based on sex, race, color, national origin or disability violates civil rights laws that are enforced by OCR.  Further when this peer to peer harassment reaches the level of hostile environment and school administrators fail to properly address it they face heightened legal liability.

 

The OCR letter provided guidance and direction in how schools might respond to lessen liability and respond appropriately as follows:

 

The label used to describe an incident (e.g. bullying, hazing, teasing) does not determine how a school is obligated to respond. Rather the nature of the conduct itself must be assessed for civil rights implications.  So for example, if the abusive behavior is on the basis of race, color, national origin, sex, or disability, and creates a hostile environment, a school is obligated to respond in accordance with the applicable federal civil rights statutes and regulations enforced by OCR.[100]

 

While we can unequivocally note that sexual harassment and bullying are issues that students, parents, teachers and administrators face on an ongoing basis, they are similar but not the same.  As noted previously in this paper sexual harassment has been clearly defined through legislation, regulation and precedent setting court cases.

The three major cases explored above have provided guidance for schools in how to respond to alleged cases of sexual harassment:

  1. In Franklin v. Gwinnet County Public Schools,[101] the Supreme Court held that a high school student who was allegedly subjected to sexual harassment and abuse could seek monetary damages under Title IX for alleged intentional gender-based discrimination.
  2. In Gebser v. Lago Vista Independent School District,[102] the Supreme Court held that a school district would only be found liable for damages if the following elements of a cause of action in sexual harassment cases were established:
  • The plaintiff was subjected to gender-oriented conduct that was “severe, pervasive, and objectively offensive”;
  • The sexual harassment denied the student an equal educational opportunity or benefit;
  • The district had “actual knowledge” of the sexual harassment;
  • The district was “deliberately indifferent” to the sexual harassment; and,
  • The district’s conduct of indifference caused the students damages.[103]

 

  1. In Davis v. Monroe County Board of Education,[104] the Supreme Court determined that a private Title IX damages action may lie against a school board in cases of student-on-student (peer to peer) harassment, but relying on its Franklin decision, declared only where the school is deliberately indifferent to sexual harassment, of which the school has actual knowledge, and that the harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the students of access to the educational opportunities or benefits provided by the school.[105]

 

Unfortunately the same cannot be said for bullying.  We noted above the disparities from state to state and school district to school district.  Definitions of what constitutes bullying vary widely in legislation and research.[106]  Three states do not define what constitutes bullying in their legislation. Only eighteen states include language requiring written documentation of bullying complaints and documentation.  This disparity and lack of clarity can lead to an environment where school administrators, in attempting to follow their policy on bullying, overlook or do not address the harassment that is actually occurring. In the OCR letter this concern is emphasized when they wrote:

 

  • When behavior implicates the civil rights laws, school administrators should look beyond simply disciplining the perpetrators.  While disciplining the perpetrators is a necessary step, it is often insufficient.  A schools responsibility is to eliminate the hostile environment created by the harassment, address its effects, and take steps to ensure that the harassment does not recur.  Put differently, the unique effects of discriminatory harassment may demand a different response than would other types of bullying.[107]

 

This statement and the remainder of the letter, which provides hypothetical scenarios of what on the surface appear to be bullying but are in fact forms of harassment that violate civil rights laws, should serve as a cautionary note to school district personnel and those who work with school districts on bullying prevention that knowledge of harassment law and especially sexual harassment is critical to any prevention, training, policy implementation, investigation or enforcement.  The Analysis of State Bullying Policies notes that only seventeen states include in their bullying statutes language enumerating the characteristics of protected groups under civil rights laws.  At the same time twenty-five states mandate that LEA’s develop and implement bullying prevention training.[108]

 

Given the turnover rates due to attrition,[109] transfer and retirement it is quite likely that those school personnel who previously were provided training in sexual harassment are no longer teaching.  It is quite likely that many who are currently in administration or teaching may have little or no knowledge of the connection between bullying and harassment prevention.  This lack of connectivity is also present in anti-bullying curricula.  Nan Stein has noted in her analysis of sixty-seven anti-­bullying curricula designed for middle and high school students that only nineteen define behaviors that constitute sexual harassment and only twelve explicitly mention sexual harassment.  The majority that mention sexual harassment inaccurately delineate it as a subset of bullying.[110]  Given the high degree of victimization of lesbian, gay, bisexual and transgender youth (LGBT) it is of further concern that these programs almost universally fail to discuss issues of sexual orientation, homophobia, sexual harassment and sexual violence.[111]

 

In Comparing the Impact of Bullying and Sexual Harassment Victimization on the Mental and Physical Health of Adolescents,[112] Gruber and Fineran sampled 522 middle and high school students to compare the impact of bullying and sexual harassment.  As noted previously in this paper both bullying and sexual harassment studies have identified the negative impact on student’s health and well being.  In this study they indicated that:

  • Bullying was much more frequent than sexual harassment,
  • LGBT students experienced higher degrees of both bullying and sexual harassment,
  • Both bullying and sexual harassment led to negative health outcomes for students, but adverse outcomes were especially felt by girls and LGBT youth.
  • Sexual harassment, while less frequent, plays a greater role in poor health outcomes than the more pervasive bullying.

 

The researchers conclude that harm is increased for adolescents when words and deeds have a sexual element to them. They also note the limitations of their study and the need for further inquiry.  Nonetheless it makes a strong case that we should be focusing on sexual harassment prevention as we address bullying.

 

Key Considerations for Policy Implementation

School Board policy on sexual harassment and bullying should be considered in the context of an overall approach to school safety and discipline, with the goal of providing a positive school environment that maximizes student learning. Strategies to address sexual harassment, bullying, including cyberbullying, may be incorporated into a comprehensive safety plan.  It should be noted, however, that any policy on sexual harassment should be clearly delineated, as unlike other issues of harassment, the federal government through Title IX and its implementing regulations requires schools, at all levels, to establish grievance procedures to handle cases of alleged sex discrimination. Although recommended, it is not as of the writing of this paper, required by the federal government for bullying.[113]

In developing policy on this issue, the board should consider seeking, in addition to administrators, input from students, parents/guardians, teachers, staff, and as it relates to cyberbullying, technology experts, and community organizations.  Legal counsel should also be consulted, particularly regarding issues of sex discrimination, student discipline and first amendment issues.

Components of Effective Policies on Sexual Harassment

 

A well-written and accessible school policy must clearly communicate that sexual harassment is unacceptable. The policy should include:

 

  • A statement of the position of the school or district regarding sexual harassment;
  • Definition of what sexual harassment is and what conduct is prohibited;
  • School-specific examples to assist students in identifying sexual harassment;
  • Description of how claims will be investigated and who is in charge of receiving and handling complaints;
  • Statement prohibiting retaliation;
  • Specific disciplinary consequences for harassment and retaliation;
  • List of resources available to both the targets and harassers, such as counseling or outside community resources; and,
  • Training of administrators, teachers, staff, and students on the nature of sexual harassment, why it is unacceptable and their role in preventing and stopping it[114]

 

Components of Effective Policies on Anti-bullying

  • A statement of the position of the school or district regarding bullying behaviors and/or positive student behavior;
  • The school or district definition of bullying;
  • A statement relating to the responsibilities and the rights of students, staff, and others who are associated with the school with regard to bullying behavior;
  • A procedure describing the process for reporting incidents of bullying and the procedures the school will follow in response to the report; and,
  • Statements regarding false reporting and immunity from retaliation;[115]

 

The development of the anti-bullying policy may take into consideration a review of the school policies/codes related to student conduct, discipline, sexual harassment, other harassment, acceptable use (technologies), and hazing.

Dissemination of the Policies on Sexual Harassment and Anti-Bullying

The policies on sexual harassment and anti-bullying and grievance procedures should be published in district and student handbooks, on a website, or in some format that is easily accessible to all persons who may be affected by the policy.[116]

Possible Strategies for Prevention

  • Assess the school environment;
  • Adopt a comprehensive approach that considers the sexual harasser and victim, the bully, the target and bystanders;
  • Provide sexual harassment and bullying prevention and intervention training to all faculty and staff;
  • Closely supervise all areas of the school;
  • Update discipline plan and procedures; adopt all legally required related policies;
  • Utilize multiple means for publicizing clear behavioral standards/rules;
  • Consistently and fairly enforce standards/rules;
  • Establish an anonymous reporting system;
  • Encourage parent and community involvement in sexual harassment and bullying prevention;
  • Use classroom management techniques for response to classroom behavior and when needed, use appropriate discipline; and,
  • As merited, refer victims and bullies to school counselors or mental health professionals.[117]

Possible Steps for Intervening in Bullying Situations

  • Intervene immediately to stop the bullying;
  • Talk to the bully and the victim separately. If more than one student is involved in bullying behavior, talk to each separately, in quick succession. (Expect bullies to minimize [or] deny their actions.);
  • Remind the bully about school and classroom rules, reiterate what behavior is expected, and discuss sanctions that will be imposed for future bullying behavior;
  • Reassure the victim that everything possible will be done to prevent a recurrence;
  • Make other students aware of the consequences of the bullying behavior;
  • Reiterate the school’s policy of zero tolerance toward bullying;
  • Phone the parents of both the bully and the victim as soon as possible. If possible, involve the parents in designing a plan of action;
  • Continue to monitor the behavior of the bully and the safety of the victim;
  • Consult administrators, teachers, and staff members to alert them to the problem and to get a better understanding of it; and,
  • If the situation doesn’t change, remove the bully – not the victim – from the classroom.[118]

Factors for Determining Consequences

  • Age, developmental and maturity levels of the parties involved and their relationship to the school district;
  • Degrees of harm;
  • Surrounding circumstances;
  • Nature and severity of the behaviors;
  • Incidences of past or continuing patterns of behavior;
  • Relationships between the parties involved; and,
  • Context in which the alleged incidents occurred.[119]

 

 

 

 

Factors for Determining Remedial Measures

The Student:

  • Restitution and restoration;
  • Peer support group;
  • Recommendations of a student behavior or ethics council;
  • Corrective instruction or other relevant learning or service experience;
  • Supportive student interventions;
  • Behavioral assessment or evaluation, including, but not limited to, a referral to   the Child Study Team, as appropriate;
  • Behavioral management plan, with benchmarks that are closely monitored;
  • Assignment of leadership responsibilities (e.g., hallway or bus monitor);
  • Involvement of school “disciplinarian;”
  • Student counseling;
  • Parent conferences;
  • Alternative placements (e.g., alternative education programs);
  • Student treatment; or,
  • Student therapy.[120]

The School Community:

  • School climate;
  • School culture;
  • Student-staff relationships and staff behavior toward the student;
  • General staff management of classrooms or other educational environments;
  • Staff ability to prevent and manage difficult or inflammatory situations;
  • Social-emotional and behavioral supports;
  • Social relationships;
  • Community activities;
  • Neighborhood situation; and,
  • Family situation.[121]

Possible Consequences

  • Admonishment;
  • Temporary removal from the classroom;
  • Deprivation of privileges, including bus transportation;
  • Classroom or administrative detention;
  • Referral to disciplinarian;
  • In-school suspension during the school week or the weekend;
  • After-school programs;
  • Out-of-school suspension (short-term or long-term);
  • Reports to law enforcement or other legal action;
  • Expulsion; and,
  • Bans from participating in school-district-sponsored programs or, being in school buildings or on school grounds.[122]

Examples of Remedial Measures

The Student:

  • Restitution and restoration;
  • Peer support group;
    • Recommendations of a student behavior or ethics council;
    • Corrective instruction or other relevant learning or service experience;
    • Supportive student interventions;
    • Behavioral assessment or evaluation, including, but not limited to, a referral to the Child Study Team, as appropriate;
    • Behavioral management plan, with benchmarks that are closely monitored;
    • Assignment of leadership responsibilities (e.g., hallway or bus monitor);
    • Involvement of school “disciplinarian;”
    • Student counseling;
    • Parent conferences;
    • Alternative placements (e.g., alternative education programs);
    • Student treatment; or,
    • Student therapy.[123]

 

The School Community:

  • School and community surveys or other strategies for determining the conditions contributing to harassment, intimidation or bullying;
  • School culture change;
  • School climate improvement;
  • Adoption of research-based, systemic bullying prevention programs;
  • School policy and procedures revisions;
  • Modifications of schedules;
  • Adjustments in hallway traffic;
  • Modifications in student routes or patterns traveling to and from school;
  • Supervision of student before and after school, including school transportation;
  • Targeted use of monitors (e.g., hallway, cafeteria, locker room, playground, school perimeter, bus);
  • Teacher aides;
  • Small or large group presentations for fully addressing the behaviors and the responses to the behaviors;
  • General professional development programs for certificated and non-certificated staff;
  • Professional development plans for involved staff;
  • Disciplinary action for school staff who contributed to the problem;
  • Parent conferences;
  • Family counseling;
  • Involvement of parent-teacher organizations;
  • Involvement of community-based organizations;
  • Development of a general bullying response plan;
  • Recommendations of a student behavior or ethics council;
  • Peer support groups;
  • Alternative placements (e.g., alternative education programs);
  • School transfers; and,
  • Law enforcement (e.g., safe schools resource officer, juvenile officer) involvement or other legal action.[124]

 

Reporting Procedures

The goal of a reporting procedure is to facilitate the identification, investigation and response to alleged violations by making the reporting process prompt, simple and non-threatening. The district should consider every mechanism available to simplify reporting, including standard reporting forms and Web-based reporting mechanisms. For anonymous reporting, schools should consider locked boxes located in areas of the school where reports can be submitted without fear of being observed.[125]

Providing Support for Victims

The district should identify a range of strategies and resources, which could include the folowing actions for individual victims:

  • Counseling;
  • Teacher aides;
  • Hallway and playground monitors;
  • Schedule changes;
  • Before- and after-school supervision;
  • School transportation supervision;
  • School transfers; and,
  • Therapy.[126]

False Accusations

The school district is encouraged to consider the totality of the circumstances surrounding individuals who falsely accuse others of bullying or sexual harassment. Decisions about consequences and appropriate remedial actions should be consistent with existing case law, federal and state statutes and regulations and district policies and procedures.[127]

Comment

It is important to remember that when developing a policy on sexual harassment and/or bullying, the goal is to create an educational environment that allows each student to feel safe and secure.  This will require an environment free from discrimination and harassment, and that will ordinarily require more than just punishing individual instances of misconduct.  The entire school community will benefit most from stopping harassment of any kind from happening at all.  Therefore, an effective anti-harassment program must incorporate the kinds of strategies that will prevent harassment, not merely increase the chance of punishment.  While developing a strong program often begins with establishing and enforcing written policies and procedures, all of a school district’s programs and activities should enhance its anti-harassment efforts.  The school’s stated philosophy, instructional program, extracurricular activities, professional development efforts, and parent involvement initiatives are key to establishing a safe environment in which respect for others can flourish.

Successful prevention strategies depend on the coordinated efforts of not just administrators, but all teachers, staff, the student body, and the community.  Schools should consider developing action plans both at the district level and at individual school sites, involving all members of the school community, that specify the steps each segment of that community will take to create a positive school environment and implement a comprehensive anti-harassment program.

Training

All employees who have contact with students should receive training to ensure that policies are understood, that incidents are reported and investigations, if necessary, are effective.  As noted in the OCR DC letter, “incidents of bullying or harassment may occur in plain sight, be widespread and known to student and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, on a school bus or through graffiti in public places.”[128] Furthermore, the OCR DC letter emphasizes that “in all cases, schools should have well-publicized policies prohibiting harassment and procedures for reporting and resolving complaints that will alert schools to incident of harassment.”[129]  This can only occur when all employees who have contact with students understand their policies on harassment and bullying and their critical role in ensuring a safe and secure school environment.

 

A model that incorporates the OCR definitions, precedent setting cases and the elements of sexual harassment and/or bullying is most effective in giving participants’ a full understanding of their responsibility.  The training initially focuses on sexual harassment prevention.  This information is used to transition to establishing an understanding of their local bullying policy. A longer training for those coming into direct contact with students addresses the implications and applications to their specific area.  Training for those charged with investigation and enforcement should include all of the aforementioned plus investigatory methods and processes to ensure due process for all and communications appropriate to all stakeholders.  Training processes should include pre-post testing, case studies, interactive exercises, and forced choice continuums.

The following chart provides the optimum parameters for effective policy implementation, reporting of complaints and adequate investigation.[130]

Personnel Trained

Focus of training

Length

Format

Outcomes

Optimum Group Size

Support staff including bus drivers, cafeteria, hall monitors and clerical.

Understanding of local policies and federal civil rights laws. Understanding acceptable and unacceptable behavior.

Recognizing and reporting harassment/bullying.

Understanding their role in maintaining school safety and security.

90 -120 minutes

Pre-Post Test

Interactive Presentation w. Q. & A.

One application activity to identify and discuss the severity of different types of behavior.

Participants are provided the opportunity to know what constitutes harassment and bullying, how to assess and avoid individual problems and when and how to identify h/b in students and the reporting procedures.

30

Administrators, Teachers, Guidance Counselors, Media Specialists, Coaches and Teacher’s Aides

All of the above + case studies and hypothetical’s to increase their understanding of how policies need to be applied and methods for early intervention and interacting with alleged harassers, bullies and potential victims.

6-8 hours

Above activities plus hypotheticals, case studies and forced choice activities to ensure group and individual understanding culminating in an applications activity.  Information is provided on intervention strategies.

Participants are provided the opportunity to understand sexual harassment and bullying prevention

30-50

Administrators and those charged w/ investigating complaints of sexual harassment and bullying.

Above + Investigative Procedures and Processes.

Understanding how to ensure due process.

Above w/ +3-4 hours.

Overview of procedures and questioning techniques.  Simulations and practice sessions.

Participants are provided the opportunity to understand how to investigate and resolve sexual harassment & bullying complaints.

20-25

 

 

Summary and Conclusion

 

 

This paper reviewed the major laws, regulations and case law concerning the sexual harassment of students in elementary and secondary schools.  It found that Title IX of the Education Amendments of 1972 protects persons from discrimination based on sex in education programs and activities that receive federal financial assistance.  The implementing regulations inform us that sexual harassment is a form of sex discrimination and is covered under Title IX.  In general, sexual harassment in schools is unwanted and unwelcome behavior of a sexual nature that interferes with the right to receive an equal educational opportunity.

 

The United States Supreme Court has declared that sexual harassment is sex discrimination and students subjected to sexual harassment and abuse could seek monetary damages under Title IX and §1983 of the Civil Rights Act 1871 for alleged intentional gender-based discrimination.  However, the Court has also made it clear that a school district would only be found liable for damages if the student was subjected to gender-oriented conduct that was “severe, pervasive, and objectively offensive”; the sexual harassment denied the student an equal educational opportunity or benefit; the district had “actual knowledge” of the sexual harassment; the district was “deliberately indifferent” to the sexual harassment; and, the district’s conduct of indifference caused the students damages.  In addition, the Court also has declared that for a student to be successful in defeating a summary judgment for the school district, a student must identify a person with “authority” to take corrective action measures in response to actual notice of sexual harassment; demonstrate that the notice was sufficient to alert the school of the possibility of the Title IX plaintiffs harassment; and, show the authority figure acted with deliberate indifference to the notice of sexual harassment.

The paper then explored bullying and assessed the current status of legislation and policy development being implemented to confront it.  It was found that bullying is occurring much more often and with new technology, students are being bullied at school, on the bus and in their homes.  V-mail, email, twitter and Facebook for example, have become weapons used to humiliate and bully.  Recently, bullying has received major attention by the national media as horrific stories of the results of on-going bullying have surfaced.  Sadly, some of these incidents have resulted in the deaths of young people.  As this focus on bullying has grown, attention to incidents of, and concern about, sexual harassment has diminished.  School systems are scrambling to develop appropriate policies and procedures and a number of states have passed bullying laws that either criminalize bullying incidents or provide prescriptions for school system enforcement.  Although many are still trying to determine what bullying is, the US Department of Education stated that bullying is a form of youth violence; it is aggressive behavior that is intentional and involves an imbalance of power or strength.  The department also indicated that bullying usually includes an attack or intimidation with the intention to cause fear, distress, or harm that can be physical (e.g., hitting, punching, pinching, grabbing), verbal (e.g. teasing, name-calling, taunting), or psychological/relational (e.g., shunning, rumors, social exclusion); and is a real or perceived imbalance between the bully and victim; and includes repeated attacks or intimidation between the same children over time.

 

In developing a policy on bullying and sexual harassment, school boards should consider seeking the input from the entire school community including parents, and that legal counsel should be consulted, particularly regarding issues of sex discrimination, student discipline and first amendment issues.  It is important to remember that when developing these policies, the goal is to create an educational environment that allows each student to feel safe and secure.  This will require an environment free from discrimination and harassment, and that will ordinarily require more than just punishing individual instances of misconduct.  The entire school community will benefit most from stopping harassment of any kind from happening at all.  Therefore, an effective anti-harassment program must incorporate the kinds of strategies that will prevent harassment, not merely increase the chance of punishment.  It is important to prevent and or stop bullying, but it is also essential to keep in mind the consequences of labeling a student a bully or sexual harasser. So with due diligence and respect for due process and the rights of all involved, investigations must be conducted in a timely and thorough manner.

It is also important to remember that the OCR also made it clear that on its face bullying and sexual harassment may be similar, but they are not the same and the distinction becomes most critical in the areas of prevention, investigation, enforcement and remediation.  Peer harassment that is severe and pervasive and is based on sex, race, color, national origin or disability violates civil rights laws that are enforced by OCR.  Furthermore, when peer-to-peer harassment reaches the level of a hostile environment and school administrators fail to properly address it, they may face heightened legal liability.

Successful prevention strategies depend on the training and coordinated efforts of not just administrators, but all teachers, staff, and the student body.  It is not enough to merely provide information on what constitutes bullying and/or sexual harassment, the school community must understand that bullying and sexual harassment will not be tolerated.  Policies and procedures must be in place and known by all members of the school community.  Schools should consider developing action plans both at the district level and at individual school sites, again involving all members of the school community, that specify the steps each segment of that community will take to implement a comprehensive anti-harassment program.

 

 


[1] See, e.g., Jim Grim, The Best of Barry: Barry Student Article: Peer Harassment in Our Schools: Should Teachers and Administrators Join the Fight 10 Barry L. Rev. 155 (Spring, 2008).

[2] See Crossing the Line: Sexual Harassment at School, Catherine Hill and Holly Kearl, AAUW 2011. See also, The New York Times, November 7, 2011, on page A14 of the New York edition with the headline: National Study Finds Widespread Sexual Harassment of Students in Grades 7 to 12.

 

[3] Sarah D. Sparks, Many Teens Endure Sexual Harassment, Education Week, Nov. 7, 2011.

[4] Id.

[5] See When Bullied Kids Defend Themselves, Why Do Schools Punish Them? By P. Kotz in Heroes, classroom creepiness, Friday, March 18, 2011.

http://www.truecrimereport.com/2011/03/when_bullied_kids_defend_thems.php.

See also, Dr. Jane’s Notebook: No Tolerance Often Punishes the Innocent, Rosen-Grandon, J.R. 2001. (www.dr-jane.com/chapters/Jane194.htm). It should also be noted that during a recent training session in Maryland, we learned that a student who been harassed continually, and had informed school authorities, believed that nothing was being done, struck out at her assailant only to have the school suspend both for fighting.

[6] (20 U.S.C. §§1681-1688).

[7] This paper does not address sexual harassment of employees, although that conduct may be prohibited by Title IX. 20 U.S.C. 1681 et seq.; 34 CFR part 106, subpart E. If employees file Title IX sexual harassment complaints with the Office for Civil Rights (OCR), the complaints will be processed pursuant to the Procedures for Complaints of Employment Discrimination Filed Against Recipients of Federal Financial Assistance. 28 CFR 42.604. Employees are also protected from discrimination on the basis of sex, including sexual harassment, by Title VII of the Civil Rights Act of 1964. For information about Title VII and sexual harassment, see the Equal Employment Opportunity Commission’s (EEOC’s) Guidelines on Sexual Harassment, 29 CFR 1604.11.

[8] See 20 U.S.C. at §1687 (codification of the amendment to Title IX regarding scope of jurisdiction, enacted by the Civil Rights Restoration Act of 1987). See also, 65 FR 68049 (November 13, 2000) (Department’s amendment of the Title IX regulations to incorporate the statutory definition of “program or activity”.

[9] 34 CFR Part 106. See also, 20 USC §1681. [PL 92-318 901][§901]. Although not specifically addressed in the regulations sexual harassment has been found by the Supreme Court to be included. It should be noted that Title IX, like Title VI, recognizes three general types of prohibited discrimination: (1) disparate treatment, (2) disparate impact, and (3) retaliation. Any effective and meaningful administrative enforcement program under Title IX must be prepared to address all three. It is important to note, however, that Title VII case law does not apply with equal symmetry in the area of harassment claims. Furthermore, to enforce Title IX, the U.S. Department of Education maintains an Office for Civil Rights (OCR), with headquarters in Washington, DC and twelve regional offices located across the United States. See www.ed.gov/about/offices/list/ocr. Many state education agencies may also be approached with complaints of alleged sexual harassment. See, e.g. Maryland State Education Department, Education Department of the State of New York, Massachusetts Department of Education, Iowa Department of Education, Delaware Department of Education, Texas Education Agency, and the California Department of Education.

[10] See, e.g., Davis v. Monroe County Board of Education, 526 U.S. 629, 653 (1998) (alleged conduct of a sexual nature that would support a sexual harassment claim included verbal harassment and “numerous acts of objectively offensive touching); Franklin v. Gwinnett County Public Schools 503 U.S. 60, 63 (19920) (conduct of a sexual nature found to support a sexual harassment claim under Title IX included kissing, sexual intercourse); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 60-61 (1986) (demands for sexual favors, sexual advances, fondling, indecent exposure, sexual intercourse, rape, sufficient to raise hostile environment claim under Title VII); Ellison v. Brady, 924 F.2d 872, 873- 74, 880 (9th Cir. 1991) (allegations sufficient to state sexual harassment claim under Title VII included repeated requests for dates, letters making explicit references to sex and describing the harasser’s feelings for plaintiff); Lipsett v. University of Puerto Rico, 864 F.2d 881, 904-5 (1st Cir. 1988) (sexually derogatory comments, posting of sexually explicit drawing of plaintiff, sexual advances may support sexual harassment claim); Kadiki v. Virginia Commonwealth University, 892 F.Supp. 746, 751 (E.D. Va. 1995) (professor’s spanking of university student may constitute sexual conduct under Title IX); Doe v. Petaluma, 830 F.Supp. 1560, 1564-65 (N.D. Cal. 1996) (sexually derogatory taunts and innuendo can be the basis of a harassment claim); Denver School Dist. #2, OCR Case No. 08-92-1007 (same to allegations of vulgar language and obscenities, pictures of nude women on office walls and desks, unwelcome touching, sexually offensive jokes, bribery to perform sexual acts, indecent exposure); Nashoba Regional High School, OCR Case No. 01-92-1377 (same as to year- long campaign of derogatory, sexually explicit graffiti and remarks directed at one student).
11 Title VII of the Civil Rights Act (42 U.S.C.A. § 2000 (e)-2 [1988]) provides a remedy for quid pro quo sexual harassment. Most courts follow the Equal Employment Opportunity Commission’s guidelines and hold that the necessary quid pro quo exists if submission to unwelcome sexual advances “is made either explicitly or implicitly a term or condition of an individual’s employment” or if submission to unwelcome sexual advances “is used as the basis for employment decisions affecting such individual” (29 C.F.R. § 1604.11(a)(1)-(2) [1997]). See also, Alexander v. Yale University, 631 F. 2d 178, 2nd Circuit (1980).
12 See, e.g., Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 60-61 (1986) (demands for sexual favors, sexual advances, fondling, indecent exposure, sexual intercourse, rape, sufficient to raise hostile environment claim under Title VII), and Harris v. Forklift Sys. Inc., 510 U.S. 17, 21-22 (1993) (barring harassment based on race, religion, sex, or national origin.
13 See Cannon v. University of Chicago, 441 U.S. 677 (1979).

 

 

 

[14] 502 U.S. 60, 112 S.Ct. 1028 (1992).

[15] Id.

[16] Id., at 70-71.

[17] 524 U.S. 274, 118 S. Ct. 1989 (1998).

[18] 524 U.S at 285-90. However, See also, Sauls v. Pierce County School District, 399 F.3d 1279 (11th Cir. 2005). Because of the very nature of the relationship between a teacher and a student there is no need to establish that the teacher misconduct was so severe and pervasive and objectively offensive that it denied equal access to educational programs or opportunities. However, a school official’s ineffective response in preventing a teacher’s sexual harassment of a student does not constitute deliberate indifference.

[19] 562 U.S. 629, 119 S. Ct. 1661 (1999).

[20] 562 U.S at 629.

[21] Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75, 118 S. Ct. 998 (1998).

[22] 523 U.S. at 79.

[23] Id.

[24] Id.

[25] Id. at 80.

[26] See 34 CFR 106.31.

[27] See 62 FR 12039. See also Kinman v. Omaha Public School Dist., 94 F.3d 463, 468 (8th Cir. 1996), rev’d on other grounds, 171 F.3d 607 (1999) (female student’s alleged sexual harassment by female teacher sufficient to raise a claim under Title IX); Doe v. Petaluma, 830 F.Supp. 1560, 1564-65, 1575 (N.D. Cal. 1996) (female junior high student alleged sexual harassment by other students, including both boys and girls, sufficient to raise a claim under Title IX); John Does 1, 884 F.Supp. at 465 (male students allegations of sexual harassment and abuse by a male teacher.) It can also occur in certain situations if the harassment is directed at students of both sexes. Chiapuzo v. BLT Operating Corp., 826 F.Supp. 1334, 1337 (D.Wyo. 1993) (court found that if males and females were subject to harassment, but harassment was based on sex, it could violate Title VII); but see Holman v. Indiana, 211 F.3d 399, 405 (7th Cir. 2000) (if male and female both subjected to requests for sex, court found it could not violate Title VII). It should be noted that some State and local laws might prohibit discrimination on the basis of sexual orientation. Also, under certain circumstances, courts may permit redress for harassment on the basis of sexual orientation under other Federal legal authority. See also, Nabozny v. Podlesny, 92 F.3d 446, 460 (7th Cir. 1996) (holding that a gay student could maintain claims alleging discrimination based on both gender and sexual orientation under the Equal Protection Clause of the United States Constitution in a case in which a school district failed to protect the student to the same extent that other students were protected from harassment and harm by other students due to the student’s gender and sexual orientation). See Revised Sexual Harassment Guidance: Harassment of Students By School Employees, Other Students, or Third Parties Under Title IX, January 2001. U.S. Department of Education’s Office for Civil Rights.

[28] 555 U.S. 246, 129 S. Ct. 788 (2009).

[29] 42 U.S.C. §1983.

[30] See 555 U.S. at Slip op 1.

[31] Id. at Slip Op 3.

[32] Id. at Slip op 7-12.

[33] Id. at Slip op. 11-12.

[34] Id. at Slip op. 2.

[35] 604 F.3d 1248 (11th Cir. 2010)

[36] Id.at 1254.

[37] Id. at 1260.

[38] Id. at 1267. See also a recent case, JFK et al. v. Troup County School District, No. 11-13297 (11th Cir. 2012). School authority had no real notice of sexual harassment by teacher of student and had attempted to separate both parties for other reasons, therefore there was no deliberate indifference shown to the plight of the student.

[39] Id. at 1268.

[40] See JFK et al. v. Troup County School District, No. 11-13297 (11th Cir. 2012) (school authority had no real notice of sexual harassment by teacher of student and had attempted to separate both parties for other reasons, therefore there was no deliberate indifference shown to the plight of the student).  See also, Mathis v. Wayne County Board of Education, No. 11-5979 (6th Cir. 2012) (The court rejected the district’s arguments that its officials had not been deliberately indifferent to the locker room incidents because they took action after they received actual notice of the behavior, and upheld jury award to students); Wolfe v. Fayetteville, Ark. Sch. Dist., 648 F.3d 860 (8th Cir. 2011) (acts of name-calling and creating rumors alone did not amount to gender-based harassment); Diana G-D ex rel. Ann D. v Bedford Cent. Sch. Dist., 932 N.Y.S.2d 316 (N.Y. Sup. Ct. 2011) (as there was not enough evidence for “reasonable cause” to suspect abuse, and even if the defendants had a duty to report under the circumstances, their failures to make such a report was not “knowing and willful” and therefore the district was not liable under Title IX); Sanches v. Carrollton-Farmers Branch Ind. Sch. Dist., 647 F.3d 156 (5th Cir. 2011) (noting that this was nothing more than a “disgruntled cheerleader mom” who was upset that her daughter did not make the team, and that it had “no place in federal court or any other court.” See 647 F.3d at 159, there was no Title IX violation); Patterson v. Hudson Area Sch., 724 F. Supp. 2d 682 (E.D. Mich. 2010) (where the evidence did not support a finding that the harassment was based on sex; was severe, pervasive and objectively offensive; or that the district was deliberately indifferent to the harassment, the jury’s findings that the alleged sexual harassment by the student’s peers violated Title IX was against the great weight of the evidence); Schaefer v. Las Cruces Pub. Sch. Dist., 716 F. Supp. 2d 1052 (D.N.M. 2010) (where a school district responds to reports of student-on-student sexual harassment but simply does not do enough to stop the problem, the conduct is negligence rather than deliberate indifference and is thus not actionable under Title IX); Doe-2 v. McLean County Unit Dist. No. 5, 593 F.3d 507 (7th Cir. 2010) (held that school officials lacked control over the teacher to establish liability based on deliberate indifference under Title IX); Trentadue v. Redmon, 619 F.3d 648 (7th Cir. 2010) (held that there was no evidence that the supervisor had knowledge of any of the incidents involving abuse. Therefore, the dismissals of the student’s Title IX and section 1983 claims were affirmed); Doe 20 v. Bd. of Educ. of Community Unit Sch. Dist. No. 5, 680 F. Supp. 2d 957 (C.D. Ill. 2010) (held that allegations by the plaintiffs that the principal and assistant principal were told by parents that the teacher had a student give him massages underneath his clothes, that he regularly isolated female students outside of the classroom, that students told their parents that they did not like the teacher’s touching, and that the administrators took no action to stop the sexual misconduct were sufficient to state a claim under Title IX); Watkins v. La Marque Ind. Sch. Dist., 308 F. App’x 781 (5th Cir. 2009) (found that the harassment was not severe enough to deny the plaintiff daughter access to education and the school district acted promptly by separating the two students and then reassigning the harasser after the harassment continued.  The Fifth Circuit affirmed the district court’s grant of summary judgment in favor of the school district because no reasonable jury could have concluded the school district’s responsive action as deliberately indifferent); Andrews v. Monroe County Bd. of Educ., 299 F. App’x 937 (11th Cir. 2008) (court reversed and remanded as the evidence demonstrated that the principal acted in accordance with school district policy – one that required the principal to report sexual harassment and that left to the principal’s discretion the means used to investigate and report such complaints by third parties); Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332 (W.D. Pa. 2008) (held that student-on-student sexual harassment in the form of unwelcome physical contact and notes occurred and that the school district had actual knowledge of the harassment.  The district’s responses to the suspected harassment were unreasonable and indicated deliberate indifference.  Despite repeated notices, the district conducted no investigation until almost four weeks after the original complaint by the victim’s mother, and its actual responses, such as advising one of the victim’s teachers “to keep an eye out” for the two students, were patently unreasonable.  The victim was deprived of access to educational opportunities and benefits as a result of the parents’ necessary removal of her from school and placement in an inferior homebound instruction program for almost two months.

[41] Bruce Jones, Judith Rainone, Donna Elam & Walt Shaffner, Bullying: A Nation Fed Up, Policy Brief/Tampa Bay Educational Partnership, Issue 2:1.pdf.

[42] Peter Krouse, Parents of boy who killed himself hold Mentor High School liable. Cleveland Plain Dealer April 3, 2009 5:20 AM.

[43] Jessica Logan Suicide: Parents Of Dead Teen Sue School, Friends Over Sexting Harassment, Huffington Post First Posted: 3/18/2010 06:12 AM ET, Updated: 5/25/2011 03:50 PM ET.

[44] Sexting refers to an act of sending sexually explicit materials through mobile phones. The word is derived from the combination of two terms sex and texting. Sexting is a punishable offence in the U.S.  A teenager texting sexually explicit photographs of themselves, or of their friends or partners, can be charged with distribution of child pornography and those who receive the images can been charged with possession of child pornography. The term was defined by the court in United States v. Broxmeyer, 2010 U.S. App. LEXIS 16032 (2d Cir. 2010) as the exchange of sexually explicit text messages, including photographs, via cell phone, USLegal.com.

[45] Andrew Meacham, Times Staff Writer, Sexting-related bullying cited in Hillsborough teen’s suicide, Tampa Bay Times, In Print: Sunday, November 29, 2009.

[46] Jeremy Hubbard, Fifth Gay Teen Suicide in Three Weeks Sparks Debate, http://abcnews.go.com/US/gay-teen-suicide-sparks-debate/story?id=11788128.

[47] Yvonne Wenger, Teen’s Suicide Raises Long-Standing Concern About Cyber-Bullying, The Baltimore Sun, 8:52 PM EDT April 17, 2012.

[48] PACER’s National Bullying Prevention Center provides creative and interactive resources that are designed to benefit all students, including students with disabilities. Middle and high school students can visit PACERTeensAgainstBullying.org and elementary school students PACERKidsAgainstBullying.org for additional ideas on how they can take action against bullying. http://www.pacerkidsagainstbullying.org/.

[49] Nick Gillespie, Stop Panicking About Bullies, Wall Street Journal, April 2, 2012, 12:28 pm.  “But is America really in the midst of a “bullying crisis,” as so many now claim? I don’t see it. I also suspect that our fears about the ubiquity of bullying are just the latest in a long line of well-intentioned yet hyperbolic alarms about how awful it is to be a kid today.”

[50] Josephson Institute of Ethics, Largest Study Ever Shows Half Of Students Were Bullied And Nearly Half Were Victims During The Last Year, 2010, www.josephsoninstitue.org. http://charactercounts.org/programs/reportcard/2010/indexhtml.

[51] Ibid.

[52] The American Institutes for Research/National Center for Education Statistics/U.S. Department of Education 2009 School Crime Supplement to the National Crime Victimization Survey, http://bjs.ojp.usdoj.gov/content/pub/pdf/iscs10.pdf.

[53] Bureau of Justice Statistics (BJS), U.S. Department of Education 2009 School Crime Supplement, bjs.ojp.usdoj.gov/index.cfm?ty=dcdetail&iid=245.

[54] Samantha Neiman, Crime, Violence, Discipline and Safety in U.S. Public Schools: Findings form the School Survey on Crime and Safety: 2009-10 (NCES 2011-320) U.S. Department of Education, National Center for Education Statistics. Washington, DC, U.S. Department of Education.

[55] School Safety Partners, http://www.schoolsafetypartners.org/law/668-Department-Justice-Combats-Bullying-the-Courtroom.html.

[56] Cyber bullying refers to any harassment that occurs via the internet, cell phones or other devices. Communication technology is used to intentionally harm others through hostile behavior such as sending text messages and posting ugly comments on the internet.

The National Crime Prevention Council defines cyber-bullying as “the process of using the Internet, cell phones or other devices to send or post text or images intended to hurt or embarrass another person.”

Cyber-bullying could be limited to posting rumors or gossips about a person in the internet bringing about hatred in other’s minds; or it may go to the extent of personally identifying victims and publishing materials severely defaming and humiliating them, USLegal.com.

[57] Ibid.

[58] Kathleen Conn, PH.D and Travis Hicks, Bullying and Cyberbullying: Policies and Tools for Administrators, Thompson Publishing Group, 2012.

[59] GLSEN, 2009 National School Climate Survey, Sep 14, 2010, http://www.glsen.org/cgi-bin/iowa/all/library/record/2624.html?state=research&type=research.

[60] Ibid.

[61] Kaltialia-Heino, Rittakertu, Matti Rimpela, Paivi Rantanen and Arj Rimpela. 2000. “Bullying at School – An Indicator of Adolescents at Risk for Mental Disorders.”  Journal Of Adolescence 23:661- 674.

[62] Patchin, Justin W., and Sameer Hinduja. 2010, “Cyberbullying and Self Esteem.” Journal of School Health, 80(12):614-621.  Klomek, Anat Brunstein, Frank Marracco, Marjorie Kleinman, Irvin S. Schnfeld, and Madelyn S. Gould. 2007. “Bullying, Depression and Suicidality in Adolescents.” Journal of the American Academy of Child and Adolescent Psychiatry. 46(1):40-49.

[63] Juvonen, Jaana, Yueyan Wang, and Guadalupe Espinoza. 2010. “Bullying Experiences and Compromised Academic Performance Across Middle School Grades.” The Journal of Early Adolescence. 31(1): 152-173.               Gastic, Billie. 2008. “School Truancy and the Disciplinary Problems of Bullying Victims.”  Educational Review. 60(4):391-404.

[64] Houbre, Barbara, Cyril Tarquinio, Isabelle Thuiller, Emmanuelle Hergott. 2006. “Bullying Among Students and its Consequences on Health.” European Journal of Psychology Education. 21(2); 183-208. Kaltialia-Heino, Rittakertu, Matti Rimpela, Paivi Rantanen and Arj Rimpela. 2000 “Bullying at School – An Indicator of Adolescents at Risk for Mental Disorders.”  Journal Of Adolescence 23:661- 674.

[65] Fox, James Alan, Delbert S. Elliott, R. Gil Kerlikowske, Sanford A. Newman and William Christenson. 2003. “Bullying Prevention is Crime Prevention.” A Report by Fight Crime: Invest in Kids. Washington D.C.

[66] Garbarino, James and Ellen Delara. 2003 “Words Can Hurt Forever.” Educational Leadership, March 2003: 18-21.

[67] O’Brennan, Lindsey M., Catherine P. Bradshaw, and Anne L. Sawyer. 2009. “Examining Developmental Differences of the Social-Emotional Problems Among Frequent Bullies, Victims And Bully/Victims.” Psychology in the Schools. 46(2):100-115.

[68] Gazzaniga, Michael S., Human: The Science Behind What Makes Us Human. (New York: Harper Perennial, 2008), 178.

[69] October 26, 2010 “Dear Colleague Letter” on Guidance on Federal Responsibility for Bullying and Harassment, U.S. Department of Education, October 26, 2010.

[70] Ibid.

[71] October 26, 2010 OCR letter: “I am writing to remind you, however, that some student misconduct that falls under a school’s anti-­bullying ­policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights(OCR).  As discussed in more detail below, by limiting its response to specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student’s misconduct also results in discriminatory harassment.”

[72] The Department’s regulations implementing these statutes are 34 C.F.R. parts, 100, 104 and 106.  Under these federal civil rights laws and regulations, students are protected from harassment by school employees, other students and third parties.  This guidance focuses on peer harassment and articulates the legal standards that apply in administrative enforcement.

[73] A school has notice of harassment if a responsible employee knew or in the exercise of reasonable care should have known about the harassment.  For a discussion of what a “responsible employee” is see OCR’s Sexual Harassment Guidance.

[74] Ibid.

[75] Center for Disease and Prevention, 2010, YRBSS 2009 National Youth Risk Behavior Surveillance Overview” U. S. Department of Health and Human Services.  Accessed July 2012.  http://www.cdc.gov/HealthyYouth/yrbs/index.htm.

[76] See Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75, 82 (1998).  The S.C. held unanimously that sex discrimination consisting of same-sex sexual harassment can violate Title VII’s prohibition against discrimination because of sex.  The S.C. decision is consistent with OCR policy, originally delineated in its 1997 guidance that Title IX prohibits sexual harassment regardless of whether the harasser and the person being harassed are members of the same sex. 62 FR 12039.

[77]  Gebser v. Lago Vista Ind. Sch. Dis.  524 U.S. 274, 281(1998); Davis v. Monroe County Bd. Of Educ., 526 U.S. 629, 649-50 (1999); See Also; Franklin v. Gwinnett County Pub. Sch. 503 U.S. 60, 75 (1992).

[78] 34 CFR 106.31 (b) See Davis, 526 U.S. at 650.

[79] October 26, 2010 “Dear Colleague Letter” on Guidance on Federal Responsibility for Bullying and Harassment, U.S. Department of Education.  The letter presents a hypothetical situation where a series of anti-Semitic incidents including graffiti, swastikas were scrawled on bathroom stalls.  Two boys attempted to shake down other boys using anti-Semitic terms even though the victims were not Jewish.  Jewish students began avoiding the library and computer lab because they had to transit the hallway where the 9th grade harassers had their lockers.  The OCR letter notes that Title VI does not cover such harassment / discrimination based solely on religion but explains that groups that face discrimination on the basis of shared ancestry or ethnic characteristics are protected.

[80] Arne Duncan, U.S. Department of Education, December 16, 2010. Dear Colleague letter in which he wrote: “Though laws are only part of the cure for bullying, the adoption, publication and enforcement of a clear and effective anti-bullying policy sends a message that all incidents of bullying must be addressed immediately and effectively, and that such behavior will not be tolerated.  State laws, and their related district and school-level policies, cannot work in isolation, however.  When responding to bullying incidents, schools and districts should remember that maintenance of a safe and equitable learning environment for all students, including the both victims and perpetrators of bullying, often requires a more comprehensive approach.”

[81] U.S. Department of Education, Office of Planning, Evaluation, and Policy Development, Policy and Program Studies Service, Analysis of State Bullying Laws and Policies, Washington D.C. 2011.   http://www.ed.gov./about/offices/list/opepd/ppss/index.html This publication is an excellent compendium and analysis of state laws.

[82] Ibid.

[83] Ibid.

[84] Brian P. Swanson, Michigan Governor Signs Anti-Bullying Law Applicable to Schools, December 14, 2011 http://masudlaborlaw.com/resources/post/michigan-governor-signs-anti-bullying-law-applicable-to-schools/

[85] Todd A. Heywood, Senate passes ‘license to bully’ legislation: Bill grants exception for religious views, The Michigan Messenger, 11/03/2011. http://michiganmessenger.com/53702/senate-passes-license-to-bully-legislation.  “The GOP pushed through an amended bill, SB 137, which does nothing advocates have pushed for — including reporting requirements and enumeration, or listing, of protected classes. In addition, the legislation provides an exception which allows bullying based on “moral convictions.” The full language of the insert is: “This section does not prohibit a statement of a sincerely held religious belief or moral conviction of a school employee, school volunteer, pupil, or a pupil and parent or guardian.”

[86] SB 130 — Require the school board of each school district tp adopt a policy prohibiting bullying. My Gov365, http://www.mygov365.com/legislation/view/id/4f1e91d749e51ba70e280400/tab/overview/.

[87] Analysis of State Bullying Laws and Policies, supra at 81.

[88] Miranda Leitsinger, Bullied Gay Student who fired stun gun is suspended. msnbc.com. May 8, 2012 http://usnews.msnbc.msn.com/stun.

[89] United States v. Drew, United States District Court for the Central District of California 08-CR-582; Citizen Media Law Project, http://www.citmedialaw.org/threats/united-states-v-drew.

[90] This Honorable Court:  Court Cases brought by Bullied Students. http://www.ravendays.org/court.html. The following are headlines of articles that allege negligence or failure to protect on the part of school officials:

Family Sues Hamilton Southeastern School District over Suicide — Nov. 28, 2011. — Fishers, Indiana, USA. — 14-year-old Jamarcus Bell killed himself Oct. 20, 2010, after being bullied. Now, a year later, his parents are suing his school system for failing to protect him from his bullies. Article by Daniel Miller for WISH.

Broward County School District Faces Bullying Lawsuit from Florida Mother — Nov. 24, 2011. — Broward County, Florida, USA. — 13-year-old Brianne Vanderheyden tried to kill herself after being repeatedly bullied by schoolmates. Article web-published by the Huffington Post. See also Nov. 24th’s Broward School District Faces Bullying Lawsuit, by Donna Rapado for NBC.

Jewish Family Sues Green Schools…. — Nov. 12, 2011. — Green, Ohio, USA. — The parents of a 14-year-old are suing her school system for failing to protect her from bullying. Article by John Higgins for the Akron Beacon Journal.

Family Sues School District Over Bullying — Sept. 27, 2011. — Saranac Lake, New York, USA. — Amy and Hiram Oliveras are suing their daughter’s school system for failing to prevent her from being bullied. Article by Kim Smith Dedham for the Press-Republican. See also Sept. 24th’s Schools Sued over Racial Bullying, by Chris Knight for the Adirondack Daily Enterprise.

Lawsuit Blames Bullying on District — Sept. 4, 2011. — Harrisburg, Oregon, USA. — The mother of a middle school student with Tourette’s Syndrome is suing her son’s school system for failing to protect him from bullies. Article by Karen McCowan for the Register-Guard.

Sherwood Family Files Federal Lawsuit in Alleged Bullying Case — Aug. 26, 2011. — Sherwood, Oregon, USA. — A 14-year-old had a tooth knocked out by a bully. Article by Wendy Owen for the Oregonian. — Article web-published by OregonLive.com. See also Aug. 29th’s Lawsuit Filed in Alleged Oregon Bullying Case, web-published by ClaimsJournal, Aug. 26th’s Did Sherwood High Protect Bully Because He Was a Good Athlete?.., by Anna Canzano for KATU, and Aug. 24th’s Parents of Bullied Son Sue Sherwood School District, by Ray Pitz for the Tualatin Times.

St. Paul’s School Sued in Bullying Case — July 28, 2011. — Baltimore County, Maryland, USA. — Nannette Krupa is suing her bullied son’s school. Article by Arthur Hirsch for the Baltimore Sun.

Mother of Bullied Teen Files Lawsuit Against Tehachapi Schools — July 6, 2011. — Tehachapi, California, USA. — 13-year-old Seth Walsh hanged himself after being bullied. Article by Jose Gaspar for KBAK. See also July 5th’s Feds: School Failed to Stop Bullying of Gay Student, by Corey G. Johnson for California Watch, July 4th’s School District Failed Bullied to Death Teen, a blog post by Steve W. for Care2, July 2nd’s Calif. School District Ordered to Address Harassment, by Trudy Ring for the Advocate.

Judge Orders Seminole School Board to Surrender Records in Bullying Suit — June 1, 2011. — Sanford, Florida, USA. — The parents of 15-year-old Ned Charles IV are suing their son’s school system for failing to protect him from bullying. Article by Rene Stutzman for the Orlando Sentinel. See also Jan. 29th’s Parents of Bullied Kids …, by Rene Stutzman for the Orlando Sentinel.

“Each Day was like a Warzone” — May 27, 2011. — Seattle, Washington, USA. — A 16-year-old is suing her school system for failing to protect her from bullying. Article web-published by the Daily Mail. See also May 26th’s 16-Year-Old Sues Seattle Girls’ School over Bullying, by Chris Legeros for KIRO, May 26th’s Seattle School Sued over Bullied Student, by Tonya Mosely for KING, May 26th’s Teen’s Family Suing Seattle Private School over Bullying, by Ursula Reutin for KIRO, and May 26th’s Teen Girl Sues Seattle School, Alleges Relentless Bullying, by Vanessa Ho for the Seattle Post-Intelligencer.

Judge Says Names of Alleged Bullies’ Parents Must Be Released — May 24, 2011. — Hampton, New Hampshire, USA. — A judge has ordered a school to tell a bullied student’s parents the names of her bullies’ parents. Article by Patrick Cronin for the Hampton Union, web-published by Seacoast Online.

Father Plans to Sue School System over Son’s Suicide — May 17, 2011. — Montville, Connecticut, USA. — 15-year-old Joseph Mendes shot himself January 28th after being bullied. Article by Jeffrey Johnson for the Day. See also May 17th’s Montville Teen Bullied before Killing Himself, Family Says, by Adam Benson for the Norwich Bulletin, Feb. 1st’s Montville High Tries to Cope with Suicide of 10th-Grader, by Izaskun E. Larrañeta for the Day, and Jan. 31st’s Montville Superintendent Says Bullying Not Behind Friday Suicide, by Adam Benson for the Norwich Bulletin

[91] Tinker V. Des Moines Ind. Comm. School Dist. 393 U.S. 503 (1969).  http://supreme.justia.com/cases/federal/us/393/503/case.html.

[92] Kowalski v. Berkley County Schools et al, No 10-1098 U.S. Court of Appeals for the 4th Circuit, July 2011, http://www.ca4.uscourts.gov/Opinions/Published/101098.P.pdf.

[93] Layshock v. Hermitage Sch. Dist., 496 F. Supp.2d 587,223 Ed. Law Rep. 218 (2007).

[94] J.S. v. Blue Mountain School District No.08-4138 (3d Cir. 2010).

[95] Layshock v. Hermitage School District, 650 F.3d 3 205 (3d. Cir. 2011).

[96] Thomas v. Board of Educ., 607 F.2d 1043 (2d Cir.2008).

[97] J.S. v. Blue Mountain School District, 650 F.3d 915 (3d. Cir. 2011).

[98] Matthew Umstead, Supreme Court rejects former Musselman High student’s appeal in cyber-bullying case, Herald Mail.com, 10:45 AM EST January 17, 2012.

[99] KSEE News, US Supreme Court Passes on Cyber Bullying Cases; School’s Try to Help, January 2012.  http://www.ksee24.com/news/local/Cyber-Bullying—CLU-137794598.html.

[100] October 26 2010 OCR letter: “I am writing to remind you, however, that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights(OCR).  As discussed in more detail below, by limiting its response to specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student’s misconduct also results in discriminatory harassment.”  The Department’s regulations implementing these statutes are 34 C.F.R. parts, 100, 104 and 106.  Under these federal civil rights laws and regulations, students are protected from harassment by school employees, other students and third parties.  This guidance focuses on peer harassment and articulates the legal standards that apply in administrative enforcement.

[101] 502 U.S. 60, 112 S.Ct. 1028 (1992).

[102] 524 U.S. 274, 118 S. Ct. 1989 (1998).

[103] 524 U.S at 285-90. However, See also, Sauls v. Pierce County School District, 399 F.3d 1279 (11th Cir. 2005). Because of the very nature of the relationship between a teacher and a student there is no need to establish that the teacher misconduct was so severe and pervasive and objectively offensive that it denied equal access to educational programs or opportunities. However, a school official’s ineffective response in preventing a teacher’s sexual harassment of a student does not constitute deliberate indifference.

[104] 562 U.S. 629, 119 S. Ct. 1661 (1999).

[105] 562 U.S at 629.

[106] Stein, N.D. & Mennemier, K.A (2011, October) Addressing the Gendered Dimensions of Harassment and Bullying: What domestic and sexual violence advocates need to know. Harrisburg PA: The National Resource Center on Domestic Violence & The National Sexual Violence Resource Center.  http://www.vawnet.org.

[107] Ibid.

[108] U.S. Department of Education, Office of Planning, Evaluation, and Policy Development, Policy and Program Studies Service, Analysis of State Bullying Laws and Policies, Washington D.C. 2011.   http://www.ed.gov./about/offices/list/opepd/ppss/index.html.

[109] Keigher, A. 2010 Teacher Attrition and Mobility: Results from the 2008-09Teacher Follow-up Survey(NCES 2010-353) U.S. Department of Education, Washington D.C. National Center for Education Statistics Retrieved August 8, 2012 from http.//nces.ed.gov./pubsearch.

[110] Ibid.

[111] Stein, N. & Breines, E. (2009). What’s the law got to do with it? Inventing, subsuming, distorting and rendering invisible: Looking for sexual harassment within bullying curricula. Manuscript submitted for publication.

[112] Gruber, Jame E. & Fineran, Susan, Comparing the Impact of Bullying and Sexual Harassment Victimization on the Mental and Physical Health of Adolescents, Springer Science + Business Media, LLC 2008.

[113] Kathleen Conn and Travis Hicks, Bullying and Cyber bullying: Policies and Tools for Administrators 6-2, Thompson 2012.

[114] See e.g., Harassment-Free Hallways: How to Stop Sexual Harassment in School, Editor: Susan K. Dyer, AAUWEF 2004. See generally, Sexual Harassment in Schools, Nan Stein, National Violence Against Women Prevention Research Center 2000; Hill and Kearl supra note.2; U.S.C. at §1687, supra n.8; Revised Sexual Harassment Guidance supra n. 27; Nan Stein, Sexual harassment in Schools, National Violence Against Women Prevention Research Center, Wesley College Stone Center 2000; Nan Stein, Classrooms and courtrooms: Facing sexual harassment in K-12 schools, Teacher’s College Press, Colombia University 1999.

[115] See e.g., “Dear Colleague Letter on Bullying”, Secretary of Education, U.S Department of Education, Dec.16, 2010.  See generally, “Dear Colleague Letter”, Guidance on Federal Responsibility for Bullying and Harassment, U.S. Department of Education, October 26, 2010; Key Components in State Anti-Bullying Law, stopbullying.gov, a website managed by the U.S. Department of Health and Human Services, Anti-Bullying Guidance: for Schools, Department of Health and Department for Children Schools and Families U.K., 2007. You should also note that forty-three states now have anti-bullying legislation that requires the development of district policies prohibiting bullying. See e.g., the bullying policies established by the state departments of education of Michigan, Vermont, Iowa, Delaware, Ohio, West Virginia, and New Jersey.

[116] See U.S. Department of Education, Office for Civil Rights (2001). Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (“Sexual Harassment Guidance”); See also, 65 Fed. Reg. 52867 at § .135(b) [Recipients of federal funds must adopt and publish internal grievance procedures to promptly and equitably resolve complaints alleging discrimination on the basis of sex in its education programs or activities]. Although not required by the federal government as of the time this paper was written, it is recommended that bullying policies also be published and made available to the school community. It may however be required by state law or regulations.

[117] See generally, supra notes 81, 108, and 114, and in particular, New Jersey Department of Education, Model Policy and Guidance for Prohibiting Harassment, Intimidation and Bullying on School Property, at School-Sponsored Functions and on School Buses (Revised April 2011).

[118] Id.

[119] Id.

[120] Id.

[121] Id.

[122] Id.

[123] Id.

[124] Id.

[125] Id.

[126] Id.

[127] It should be noted that several states in developing policies concerning bullying in schools have specifically addressed the issue of making false accusations. See e.g., Arizona, Az. Revised Statutes §15-341 (2005) (Consequences for false reports of incidents); Maryland, Md. Education Code Ann. §7-424.3 (2008) (Standard consequences and remedial actions for persons committing acts, for persons engaged in reprisal or retaliation, and for persons found to have made false accusations); North Dakota, NDCC §15.1-19-17 2011, (Establish disciplinary measures to be imposed upon an individual who makes a false accusation, report or complaint pertaining to bullying, reprisal, or retaliation); New Mexico, 6.12.7.2 NMAC – N 2011, (Consequences for knowingly making false reports pursuant to the anti-bullying policy); Ohio, ORC 3313.666 2012, (Prohibition of students deliberately making false reports of harassment); Rhode Island, Code R.I. R. 16-21-33 2011,(A provision that a student who knowingly makes a false accusation of bullying or retaliation shall be subject to disciplinary action). As for false sexual harassment accusations, under Title IX OCR has stated that in its opinion it is covered under Section X Due Process Rights of the Accused, of the Revised Sexual Harassment Guidance: Harassment of Students By School Employees, Other Students, or Third Parties Under Title IX, January, 2001. U.S. Department of Education’s Office for Civil Rights.

[128] Ibid.

[129] Id.

[130] Over the years we have trained over 30,000 educators and related personnel on sexual harassment prevention.  Recently, we have expanded that training to include bullying prevention.  We strongly believe that training of staff is critical to effective implementation of policy, effective reporting of allegations, appropriate investigations and provision of due process to the alleged bully/harasser and the victim.  While we have modified training content, length of training and size of training groups to fit client needs the aforementioned model and chart contain what we consider to be the “best practices” for maximum application.

5 Enlightened Replies

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  1. Excellent and comprehensive look at the lasting damage of inappropriate sexual behavior and bullying. I urge you to consider publishing in book-form, perhaps with an NGO or not for profit organization.

    David

  2. Barney Leith says:

    An excellent and informative paper that should make all of us think about what is happening to our children and to their teachers and school administrators. For example, in addition to the increasing emergence of information about the sexual abuse (sometimes violent, sometimes much more subtle) of children, cases have come to light in the UK of parents of school students bullying their children’s teachers online.

    One thing that is shocking is the extent of denial on the part of school administrations. But I hope that necessary legal and administrative counter-measures are not based on an over-estimate of the incidence of bullying and sexual harassment. There is concern in the UK that we may be in the midst of a “moral panic” (as we have been in the past about similar issues). The challenge facing law-makers and administrators is to keep a cool head in the face of (understandable) pressure to act and read the reality of the situation accurately.

  3. I found your article compelling.
    As the mother of one of the children tragically lost to this problem, I also find it deeply gratifying that this discussion is happening.
    Our daughter, Grace McComas suffered for months due to the acts of a bully who is also the son/brother of next door neighbors.
    Bullying and sexual harassment in the digital age is instantaneous, invasive and pervasive. The child no longer goes home to sanctuary, because the abuse follows via computers, cell phones, laptops, even video games.
    In our case, the schools knew, the police and courts knew, but no one was willing/able to help. The schools would only take the most basic action of calling his parents if we were willing to fill out the bullying form, which Grace was terribly frightened to do. These same forms are presumably used to track the statistics required by law.
    I guarantee you will be shocked by the level of maliciousness contained in the ‘tweets’ that were aimed at our daughter. Yet apparently there is no law which covers this type of media… and so no criminal charges are to be filed.
    As it stands, CHANGE MUST COME or we stand to lose more of our precious children.
    For more on our story, visit the Grace K. McComas Memorial webpage on Facebook: https://www.facebook.com/GraceMcComasMemorial?ref=hl

  4. I could not refrain from commenting. Exceptionally well written!

  5. Mara Fojas says:

    Thank you for this detailed look at bullying and Title IX. We are just starting to understand the ins and outs of Title IX in our family as our 6 year old son pushes the boundaries of gender stereotypes. Fortunately, his school has been supportive and engaged.

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