The Supreme Court established relatively clear guidelines concerning when a school or school employees were and were not liable in cases involving student-to-student bullying, but that ruling is being challenged again in one Georgia case. This information comes to us through an amici curiae brief filed by the National School Boards Association and others.
What the Supreme Court said
In the case known as Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), the Court said school districts could be liable for money damages in bullying cases between students if the case passed some rather stringent tests. The schools
are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school.
The Supreme Court’s “deliberately indifferent” standard has led to a host of anti-bullying rules and policies in our schools, along with a few laws passed in our state legislatures, aimed at eliminating bullying.
All of this is done, from a legal point of view, in order to demonstrate that schools are not being deliberately indifferent to instances of bullying. By making policies, they can claim they are deliberately paying attention to bullying. And they are.
This standard gives educators some flexibility in K-12 schools, and it is our opinion that they need this flexibility. After all, many kids are still learning how to interact respectfully with their peers in middle and high school, and schools need to be protected from liability when those kids mess up, unless the school really did ignore credible evidence of bullying.
Now, in cases of sexual harassment on the job, the standard is much lower for when corporations can be liable for monetary damages. But the legal definition of harassment based on protected classes of sex, race, religion, etc., under US Title IX, is different from the legal definition of bullying. Bullying can be based on anything, even something not covered in Title IX.
Schools need the flexibility given to them by the Davis case in order to prevent bullying, and they need to be able to apply their policies in ways that might not be foreseen in federal law. Often, the circumstances of bullying are local and don’t involve one of the protected classes that set the “industry standard” for harassment. It therefore seems illogical to base a test for liability in bullying cases at a school on a test used for determining liability in sexual harassment cases at the workplace.
The Georgia case
Now comes, before the US Court of Appeals for the 11th Circuit, a case brought by the parents of Tyler Lee Long, a special education student now deceased and a victim of bullying in the Murray County School District. The US District Court for the Northern District of Georgia, Rome Division, ruled that Tyler’s parents had not presented the required evidence of “deliberate indifference” to establish a peer-on-peer harassment claim under Section 504 of the Rehabilitation Act or the Americans with Disabilities Act.
Citing Davis, the district court ruled that the parents could not sue the school unless the school itself were “deliberately indifferent” to the ongoing bullying. The Supreme Court said the school can be liable for damages “only where the [school’s] response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.”
In other words, schools probably can’t be held liable if they ignore a report of bullying from one known bully against another. They don’t have to investigate claims of bullying they think are false.
Tyler’s parents are now asking the appellate court to reverse that decision and expand the liability of schools to include cases of simple negligence, which is a test much more easily satisfied than the deliberately indifferent test. If the test for liability is changed, schools would probably have to investigate any claim of bullying they received, regardless of its credibility. This is the industry standard Tyler’s parents are seeking to have applied in their case.
A lower standard would hinder anti-bullying efforts
In our schools, this just won’t work. Too many school resources will be usurped from the investigations and discipline of actual bullying if they have to deal with every report that comes in, including the ones they know are false, just to protect themselves from potential liability.
Please note: We are not suggesting schools turn a blind eye to bullying. This is a serious problem facing our students, which has resulted in several injuries and deaths, and schools need to have an aggressive anti-bullying policy.
However, lowering the standard would force schools to change course and develop new policies that include investigating all reports of bullying, not just the ones they find credible. Schools need to focus on educational objectives and not waste time on the games children play, even the mean and nasty games.
Every day, somewhere in America, kids tattle on other kids, and in many cases, their accusations are false. Adults need to use their judgement to end bullying, and reducing the requirement of the liability test through Long v. Murray County will impair those efforts.