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Judge Defines Bullying in Case Involving City Schools

by Emily Jane Goodman
May 2011

Bullying once meant dipping a schoolgirl’s braids in the desk inkwell or throwing snowballs at the new kids. But 21st century bullying can involve schoolhouse shootings, tormenting gay classmates, ruinous sex videos, devastating Internet abuse and suicides. The new extremes may be due to increasing violence among children, and, ironically, may also flow from diversity, which provides bullies with targets who look or sound different or may be gay, or have disabilities.

In a federal lawsuit brought against New York City’s Department of Education by the parents of LK, then a 12-year-old pupil at P.S. 6 on Manhattans upper east side, Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York has framed a test for defining schoolhouse bullying. Although the child in this case has disabilities, Weinstein’s approach appears to be generally applicable.

Defining Bullying

The test, the judge wrote is, whether the conduct is “sufficiently severe, persistent or pervasive that it creates a hostile environment,” which the school does not correct and so “deprives a student of substantial educational opportunities.” The victim need only show that the bullying is likely to affect the student’s opportunity for an appropriate education.

The primary characteristic of bullying, as contrasted with rough play or teasing, involves power struggles based on a perception of strength (the bully) and weakness (the victim). According to a report of a recent White House Conference on Bullying Prevention, the critical element of bullying is “unequal and coercive power” or “at least a perceived advantage for the bully either physical or psychological.”

LK, originally diagnosed as autistic and later as learning disabled, was enrolled in a class of children of varying abilities. The allegations, officially undocumented but confirmed by special aides assigned to her while in school, included that other children laughed at her when she tried to speak in class, tripped her in the hallways and generally shunned her to the point of refusing to touch any object she had touched. In this case, the only report the school provided described LK as the aggressor.

Testifying at an administrative hearing, the school’s principal could not recall what, if any, investigation she had done into complaints made by LK’s parents. According to the plaintiffs — the parents — heir child was not protected at schools and became fearful and discouraged about school. As a result, the family transferred the girl to a private school at their own expense.

Alleging a failure by the city to provide LK with a suitable learning environment and education, the lawsuit sought recovery of the costs incurred for private school. The defendants, however, counter that the transfer was not necessary and so the public should not have to pay for the private school. Where the public school system is unable to or fails to provide an appropriate education for a child with disabilities and her needs can instead be met in a private school, the family need not pay the costs.

The parent also asserted that LK had progressed in school, an issue the judge said did not nullify the hostile environment or bullying.

Weinstein wrote, “This case presents the largely unresolved issue of the extent to which bullying by other students inhibits a disabled child from being educated appropriately, and what her school must do about it.”

Outlawing Bullying

Under federal law, all public schools receiving federal funds must provide an education appropriate to each childs abilities and disabilities. Federal law further requires that harassment of someone because of a disability must be investigated and responded to promptly and appropriately. The question to be asked and answered in this case and all cases, Weinstein said, is “Whether school personnel [were] deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities.”

In a long opinion replete with citations to academic articles on education, psychology, sociology, and law, Weinstein referred to New York State’s recently enacted Dignity for All Students Act, which is to become effective in 2012. That law is meant to assure “all students in public schools an environment free of discrimination and harassment.” (For more, see Governor Signs Bill to Combat Bullying.) But the city has not implemented its own version of an anti-bullying law, although a regulation has been adopted. State law, when it goes into effect, would be available to victims in city public schools.

LK’s parents had also claimed that they were not included in the child’s Individualized Learning Plan, a program required for all students with disabilities, but the court dismissed this claim.

Based on Weinstein’s preliminary findings and operative definition of bullying, the case can now proceed to trial to determine whether LK’s treatment and neglect falls within the judge’s parameters of what constitutes bullying. Trial evidence must establish whether she was the victim of bullying, and whether the unchallenged harassment in school had the effect of denying her a full, appropriate public education.

Emily Jane Goodman is a New York State Supreme Court Justice

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CLEVELAND — About 400 Cleveland high school students argued the fictional case of a bullied student in this year’s ‘Mock Trial’ competition at the Justice Center Friday.

It’s the 15th year for the competition, and this time students from 11 high schools in the Cleveland Metropolitan School District were taking part.

They argued a case involving a bullied student who brought a weapon to school for self-defense. The theme was developed by Cleveland Municipal Court Judge Lauren C. Moore.

She talked to the students about one of the most important issues in their lives and at their schools.

“It is bullying. It is insensitivity. It is incivility to each other and we’ve got to stop it,” the judge said.

At the mock trial, teams from the various schools debated whether a fictional student who had been bullied should be convicted of bringing a knife to school to defend himself, should the bully attack him again.

Several Cleveland Municipal Court judges judged the competition, as did Jan Mohat, the mother of a 17-year-old Mentor High School student who took his own life in 2007 after being constantly bullied.

“He was so abused that, on the day he killed himself,” Jan Mohat told the students, ”the bully went up to him and said, ‘Eric why don’t you go home and shoot yourself, it’s not like anyone would care.’ And he did. And his sister found him.”

The students listened in silence to Mohat’s description of the abuse her son endured day after day before he ended his own life.

“People that bully, they need to look inside themselves and see what they are doing is wrong,” said John Hay High School sophomore Autumn Jefferson. ”That’s just a terrible thing to do.”

Glenville High School tenth grader Desmond Barrett agreed. He admitted to having been bullied since the fifth grade.

Barrett, who acted as an assistant prosecutor on one of the student teams at the competition, told WKYC, “I’m not going to lie to you. You try to deal with it, you try to shove it off, but you can’t. It’s a problem and you can face it sometimes, but sometimes you can’t.”

Barrett thoughtfully reflected on the story of Eric Mohat.

“That’s very sad and I don’t know how anybody could do through anything like that,” he said softly. “And I don’t think anybody should ever be bullied at any time in their life. My heart goes out to his famiy.”

The students who took part in the mock trial also signed an Anti-Bullying Pledge that encourages them, among other things, to report bullying immediately any time they see it.

Winners of the trial competition for 2011 were members of team Alpha, from the Cleveland School of the Arts.

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Legal maneuvering continued Wednesday afternoon in York-Poquoson Circuit Court in the civil lawsuit brought by a York County mother who alleges that negligence by school officials contributed to her son’s suicide.

The defendants’ lawyer continued his argument that sovereign immunity clears the school officials of liability for simple negligence in the case, and substitute Judge Randolph T. West ruled on access to documents that he had reviewed since the last court date on Jan. 5.

West has given every indication that the case will end up before a jury, and continued to do so Wednesday. No trial date has been set, but West indicated the court will have a permanent judge in place by the time it gets underway.

Alise Williams is suing four current and former York County School Division officials for $10 million for wrongful death. Her son, Christian Taylor, a 16-year-old freshman at Grafton High School, took his life May 31, 2010, and Williams has accused school officials of failing to protect him from bullying at school.

Named in the lawsuit are 2009-10 Grafton High staffers: Principal Paul Hopkins, assistant principals Craig Reed and Karen Fahringer, and counselor Joseph Erfe.

The four defendants were present at the Jan. 5 hearing, but were not called to testify. Their lawyer, David Corrigan, said he was called in advance of Wednesday’s hearing and told they weren’t needed.

“This case is high-profile and you’d have a hard time finding jurors who haven’t read or heard anything about it,” West said. “The more we open up here, the more difficult it will be to find them. After reading the brief, I didn’t think I’d need witnesses to make a decision this afternoon.”

West said the case will go forward with the pleadings as they are, though the lawyers briefly debated sovereign immunity.

West ruled on the availability of documents that were subpoenaed from the York County School Board and York-Poquoson Social Services. He said some of them will be made available to lawyers from both sides, but can only be viewed at the courthouse for note-taking purposes with no photocopies being made.

He further restricted access by warning the lawyers that no one else should see their notes, and denied a request by Williams’ lawyers that an expert witness be allowed to see the documents.

“These are juveniles and I’m trying to protect their names,” West said.

http://www.dailypress.com/news/york-county/dp-nws-bullying-hearing-0217-20110216,0,7979247.story