In my previous post, I described the legal uncertainty surrounding public school responsibility for bullying and cyber bullying behavior that occurs off campus, but which has the undeniable potential of creating on-campus disturbances.  This legal uncertainly is easily seen in the inconsistent responses by our courts across the country that struggle with whether or not to place responsibility for this off-campus bullying behavior on public schools.  And unfortunately, in January 2012 the U.S. Supreme Court declined an opportunity to resolve these conflicts of the courts and set a legal framework for the public schools to follow.

Before we move into another legal area related to student bullying, there is one other important point to make.

Just because there is legal uncertainty regarding the “off-campus” bullying scenario does not mean that public schools have no legal responsibilities.  As the reported legal opinions indicate, each situation must be analyzed in a case-specific manner.  Clearly, there can be situations where public school districts are held liable for bullying incidents, even those where behavior in part has occurred off campus.  In fact, a lawyer working on behalf of an alleged bullying victim, when faced with a case of off-campus bullying, will theorize that the bullying does not occur in a vacuum and investigate whether there is additional bullying of the affected child or children occurring on campus.

But there is another important legal aspect to bullying in schools.   It was dramatically brought to the attention of the public school education community by what is known as a “Dear Colleague” letter issued by the United States Department of Education’s Office for Civil Rights on October 26, 2010.

Specifically, the Dear Colleague letter, at page 1, began:

“In recent years, many state departments of education and local school districts have taken steps to reduce bullying in schools. The U.S. Department of Education (Department) fully supports these efforts. Bullying fosters a climate of fear and disrespect that can seriously impair the physical and psychological health of its victims and create conditions that negatively affect learning, thereby undermining the ability of students to achieve their full potential . . . 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).”

The position of the U.S. Department of Education’s Office of Civil Rights that was set forth in the “Dear Colleague” letter was that certain student bullying behavior could potentially trigger federal antidiscrimination laws enforced by the Department’s Office of Civil Rights.  Specifically, there are civil rights statutes that prohibit discrimination based upon race, color, national origin, sex, and disability.

And how may a public school district itself violate these federal antidiscrimination statutes?  The answer of the U.S. Department of Education is found in the “Dear Colleague” letter, again at page 1:

“Schools may violate these civil rights statutes . . . when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.”

The Office for Civil Rights sets forth several hypothetical cases of actionable conduct in the “Dear Colleague” letter, and then describes why these hypothetical cases trigger the federal laws protecting children from such conduct.  Finally, the “Dear Colleague” letter instructs the public school systems about how to respond and address the harassment.

I wish I could write that the public schools perceive their duties and responsibilities as set forth in the Dear Colleague with clarity, and that they believe they are fully capable of carrying out the duties and responsibilities described in the “Dear Colleague” letter.  But, similar to the “off campus bullying” issue, questions and concerns remain.

While many lawyers may know about the October 26, 2010 “Dear Colleague” letter, less realize that the National School Board Association wrote a response to the U.S. Department of Education Office of Civil Rights on December 7, 2010 seeking “clarification” of the Dear Colleague letter.  And in a reply, the Office of Civil Rights wrote the NSBA in March 2011 with further discussion.

In the next blog post, I’ll describe the latter two letters, and some of the concerns that were raised by the National School Board Association to the “Dear Colleague” letter.

In the meantime, the “Dear Colleague” letter can easily be found online.  Parents can confidently conclude that the U.S. Department of Education’s Office for Civil Rights believes there is legal recourse for students who are the subject of discriminatory harassment in the form of bullying behavior in public schools.

To review the Dear Colleague letter please see this link:

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf

Best regards.

AUTHOR OVERVIEW

Andrew Agatston Attorney and Legal Expert

Andrew Agatston is an attorney in private practice in metro Atlanta, Georgia. His legal practice is diverse, and includes representing those harmed by the intentionally wrongful conduct of others, including cyberbullying. Mr. Agatston is a frequent national speaker on legal matters involving children and children's rights. Visit him online at http://www.agatstonlaw.com/.

Tags: cyberbulling, legal advice, public school