School districts across the country have faced lawsuits in recent years for failing to do more to prevent student-on-student bullying and harassment.
In the most recent local example, arguments are scheduled in federal court this month on such a suit filed against the Harrisburg School District by parents of a middle school student who was allegedly bullied.
Meanwhile, in the Eugene School District, parents of a Monroe Middle School seventh-grader have filed a lawsuit accusing the district of defaming their son and violating his rights by suspending him for alleged off-campus harassment of two younger, disabled students.
The two cases illustrate the tricky path school officials must navigate when trying to follow policies and laws aimed at protecting the rights of harassed students without violating the rights of alleged student harassers. Some state and national experts say the new expectations, while well-intended, have invited lawsuits, placing school officials in a “damned if you do, damned if you don’t” situation. As the local lawsuits suggest, school districts can now be sued for doing what they’ve previously been sued for not doing.
The Harrisburg suit was filed last August by the mother of a seventh-grade boy diagnosed with Tourette’s syndrome, a neurological disorder that causes involuntary facial and body movements and sometimes also causes vocal tics such as grunting, throat-clearing or the involuntary use of obscene or socially inappropriate words. The mother’s suit accuses the small Linn County school district of negligence and intentional infliction of emotional distress for allowing other students to taunt her son with anti-gay insults, and pushing and striking him. Her suit, which seeks unspecified damages, alleged that Harrisburg failed to meet her son’s educational needs. In court papers, the district has denied her allegations and asked a judge to throw out the suit.
The Eugene suit, filed in June in federal court, accuses school officials of wrongly labeling the Monroe student as a sexual harasser and suspending him for two days based on “false statements” by a teacher’s wife who reportedly saw the boy and three friends confront two sixth-grade children as they all walked home from school in October. His parents’ complaint says two other boys, not their son, made sex act-related comments to the sixth-graders, a hearing-impaired girl and an autistic boy. Their suit also cites a one-day suspension of their son for a separate classroom incident.
Eugene School District superintendent Sheldon Berman declined comment on the suit, citing district policy of not discussing pending litigation.
According to the parents’ suit, Monroe Middle School administrators characterized their son as the “ringleader” of the incident, saying he invited the other boys to harass the disabled children with comments, linking the name of a nearby restaurant with a slang term for oral sex.
In a narrative explaining the suspension, school administrators wrote that the action was for sexual harassment, and noted that the female sixth-grader reported understanding the sexual innuendo and feeling unsafe during the encounter. The alleged conduct, officials said, violated the district’s Student Rights and Responsibilities handbook, which prohibits “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.” The handbook notes that such harassment may include “sex-oriented verbal kidding, teasing or jokes.”
The lawsuit says the district’s disciplinary actions created a hostile education environment for the plaintiff by harming his reputation. It also seeks unspecified damages.
An “obvious increase”
The irony is that school districts are mandated by law to impose serious consequences for harassment and bullying, in order to prevent hostile education environments for victims of such conduct, several education experts said.
“The risk management topic of the year is the issue of harassment, bullying and communication with parents” on the topic, said Geoff Sinclair, director of claims for the Special Districts Association of Oregon. The organization administers Oregon school districts’ self-insurance fund for legal claims.
“Schools are often put into a very difficult situation where, if they discipline Johnny a certain way for perceived harassment, they’re going to get sued. I think most districts are doing what they believe is best for kids and letting the chips fall where they may.”
Oregon School Boards Association Attorney Morgan Smith called the issue “very tough ground for schools, because you do see bullying on the forefront of everybody’s mind. And there’s nothing new about parents getting upset over discipline for their kids.”
Though there are no solid statistics, anecdotal reports indicate an “obvious increase” in the number of lawsuits filed against school districts over students bullying other students, according to Francisco Negron, general counsel for the National School Boards Association.
Negron publicly raised concerns about the financial impact of such suits, after the U.S. Department of Education issued an advisory letter to the nation’s school administrators in October 2010, urging schools to be more aggressive in eliminating student-on-student harassment and the “hostile environment it creates.” The federal agency sent the letter in the wake of several high-profile suicides by students who’d been harassed — including a Rutgers University student who jumped off a bridge after his roommate secretly videotaped him kissing with a man in their dorm room.
Negron wrote to the agency in December 2010 expressing concern that the education department was advocating a more “expansive reading” of schools’ legal role in preventing harassment. He said he feared the step would “invite misguided litigation that needlessly drains precious school resources and creates adversarial climates that distract schools from their educational mission.”
In particular, he raised concern over the federal agency’s suggestion that school districts “can and must” consider comments made off school grounds when disciplining students.
Smith, the Oregon School Boards lawyer, shared that concern.
School officials don’t want students to be bullied,” he said, but “there are also a number of rights that an alleged bully has. Free speech off-campus is one of those rights.
“It’s difficult for schools to draw a line between what is something affecting kids at school and what is off-campus conduct by individual students,” Smith added. “Schools can only really take care of what happens inside the schoolhouse. They can’t really police what happens at the mall on the weekend or in cyberspace at night.”
Punishment must fit crime
Izzy Kalman, a New York school psychologist, has become a nationally recognized critic of policies requiring adult legal intervention in student verbal altercations.
“Schools are being held responsible for the impossible: making kids stop fighting with each other,” he said. “It’s very important to distinguish between criminal behavior and bullying. … This is the purpose of freedom of speech. It’s only words. We don’t get punished for words.”
He contends that most anti-bullying policies contain well-intended but ineffective punishments that backfire and often escalate bullying.
“For a punishment to be effective, it has to fit the crime,” he said. Adults labeling a child as a sexual harasser or a bully is “much worse than the original conduct. And if you get disproportionate punishment, you don’t feel remorse, you feel like a victim.”
University of Oregon special education professor Rob Horner agrees with Kalman that education and prevention are the best remedies for student-on-student harassment. Horner and two colleagues developed a program, Bully Prevention in Positive Behavior Support, now used by 17,000 schools across the country — including Monroe and other Eugene schools.
It focuses on changing school cultures by teaching children what respectful behavior is and that everyone has a responsibility to stop disrespectful behavior when they see it.
Bullying is not a personality trait, Horner said. Rather, it’s “a process of threatening, intimidating, harassing or punishing others, typically to get social attention and praise from bystanders and others in the situation.”
Without such reinforcement — if onlookers say “Enough!” or “Quit it” and help the victim walk away, rather than laughing — harassing and bullying behavior tends to disappear, he said.
Several elementary schools using the approach reduced playground bullying incidents by 72 percent, he said.
But when serious bullying and harassment incidents do occur, Horner said, adult intervention is important. Stressing that he is not referring to any particular case, he said suspending a student for bullying or harassing other children can be very appropriate by “preventing things from getting way out of control.”
“They’re making very clear that the behavior is not acceptable,” he said. “It would be irresponsible for them to do nothing.”
Question asked in Oregon Healthy Teens Survey
HAVE YOU BEEN HARASSED AT SCHOOL, OR ON WAY TO OR FROM SCHOOL, IN PAST 30 DAYS?
8th-grade boys saying yes: 36 percent
8th-grade girls: 41 percent
11th-grade boys: 28 percent
11th-grade girls: 31 percent
WHAT TYPES OF HARASSMENT IN THE PAST 30 DAYS?
Race or ethnic origin: 8 percent of 8th-graders, 6.5 percent of 11th-graders
Unwanted sexual comments or attention: 11 percent of 8th-graders, 11 percent of 11th-graders
Perception of being gay, lesbian, bisexual: 7 percent of 8th-graders, 4 percent of 11th-graders
Weight, clothes, acne, other physical characteristics: 15 percent of 8th-graders, 10 percent of 11th-graders
Group of friends: 8 percent of 8th-graders, 6 percent of 11th-graders
Other: 14.5 percent of 8th-graders, 12 percent of 11th-graders
No harassment: 59 percent of 8th-graders, 69 percent of 11th-graders
Note: Survey of 8th-graders was in 2009, survey of 11th-graders was in 2008
Source: Oregon Department of Education