Patch Blog: How to Motivate Schools to End Bullying

Recent, sad events have generated much discussion on the issue of bullying, but not a lot about what to do about it.  Below is Part two of a contributed article by my law partner Robert Cramer on how parents can empower themselves when making a complaint about bullying at school.

In Part 1 of this article, we discussed a legal definition of “bullying” and the outlines of a school’s responsibility to protect its students. We also emphasized that a school district will be liable under anti-discrimination statutes only if actual notice of the wrongdoer’s misconduct is given to an official of the school district who has authority to institute corrective measures on the district’s behalf, and then the official deliberately fails to act effectively.

So let’s discuss the elements of an effective notice to a school of bullying.

1.  Make the notice in the form of a written, dated letter, addressed to a particular person. A good idea would be to send it to the District Superintendent, with courtesy copies to the student’s teacher and principal. Send it via certified mail, or by some other method that would prove its receipt. 

2.  Be certain the letter is addressed to a person who has authority both to investigate and to correct the wrong being complained of. This is fundamental to the concept of notice, and the reason for copies to any relevant teachers and to the school’s principal.

3.  Note in the letter that the school district receives financial assistance from the federal government. All public schools depend on federal funds. All of them are required to comply with federal civil rights laws. For example, no educational benefit may be denied on the basis of race, sex, national origin, religion, or certain physical or mental disabilities.

4.  Clearly state the nature of the continuing discriminatory conduct against the student.

5.  Explain that the school district has control over at least the school personnel and the students involved in the conduct and probably over the location of the misconduct as well. This all builds on the clear explanation of the conduct itself.

6.  Include facts that demonstrate that the conduct complained of is repeated and egregious in nature, what attorneys and cases call “severe and pervasive.” The letter needs to show that the incident was not isolated. “Bullying,” as we’re using the word here, doesn’t involve a single fight, for example. Such events are resolved outside the courts. The conduct here must be significant and continuing.

7.  The letter should explain how the conduct being complained of prevented or discouraged the student from enjoying the same benefits enjoyed by others in the school.  Again, harassment is always severe and pervasive. The way to show that element is to document how the conduct prevented the student from obtaining the same benefits from the educational process that were obtainable by others. Obviously, different students obtain different levels of benefit from the educational process. The point here is that, absent the conduct being complained of in the letter, the harassed student would have secured benefits typically obtained by students who were not harassed.

8.  Set out clearly the remedy you expect from the school district. What do you want the school district to do in response to the conduct you have described?

9.  Request a copy of any grievance procedure that the school district may have in place. First, it is important that the district have such a procedure. More importantly, both you and any legal counsel you retain need to be fully informed of any procedural rights you may have under the district’s rules, whether or not those rules are adequate under federal, state, or local legal requirements.

10.  Conclude the letter by emphasizing that you expect a timely and effective investigation and a timely and effective resolution of the problem. Include a date by which you expect action. School district liability rests in part on a showing that a responsible official was “deliberately indifferent” to the conduct, even after notice was given. One way to begin to develop evidence of this element is to show a failure to timely and effectively respond to a reasonable demand for action.

Student harassment and bullying issues are complex. Regardless of whether litigation is warranted or desirable, the conduct must be dealt with and terminated. Steps such as those set out above will ordinarily help to convince administrative officials to deal effectively with a “bullying” or other harassment complaint without the need for courtroom intervention. If this process does not resolve the problem and bullying continues, your next step is to seek out competent, experienced legal counsel.