bullying and retaliation - what every educator needs...

BULLYING AND RETALIATION -WHAT EVERY EDUCATOR

NEEDS TO KNOW

POWER POINT

Session 10A

Carla S. Courtney, J.D.Hammonds, Sills, Adkins & Guice, LLP

Bullying

La. R.S. 17:416.13

What is Bullying?

© Hammonds, Sills, Adkins, & Guice, LLP. For educational use only. 2016-2017 SY

Bullying Defined • La. R.S. 17:416.13 requires FOUR (4) components to

meet its definition of “Bullying”:

(1) The Behavior

(2) The Pattern

(3) The Place it Occurs

(4) The Effect


Who Reports Bullying??

• Students and parents may report bullying to a school official or any school employee

• School employees must report bullying to a school official whenever one of the following occurs: o He or she witnesses bullying o He or she learns of bullying by a report from a student

or parent


“School Personnel” For reporting purposes, “school personnel” include: • Teachers • Counselors • Bus drivers • Any other school employees, whether full-time or

part-time, o Including, but not limited to, substitute teachers, support

staff, clerical staff, cafeteria staff, and janitorial staff • Any parent chaperoning or supervising a school

function or activity


“School Personnel” = Mandatory Reporters

School personnel, as defined above, are mandatory reporters of bullying Any school personnel who witnesses bullying, or learns of bullying from a student or parent, must make a verbal report to a school official the same day he or she witnessed or learned of the bullying A written report must be filed with the school official no later than two (2) days thereafter


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Who Fills out the Form?

• First box of the form includes a space for the name of the person making the report, the date of the report, and space to identify if that person is a student, parent/guardian, school employee, or parent-chaperone

• The form may be completed directly by the person reporting the incident or by the school employee to whom the incident is being reported


Agreement of Truth Statement

• The person signing the report must agree that all information on the form is accurate and true to the best of his/her knowledge

• If the employee is the person making the report based on what he or she has witnessed, sign and date the box as the “signature of person filing report”

• If the employee is receiving information from a student or parent, make a notation of that on the form next to your signature


“Received By” Box

• The last box should include the name of the school official who has received the bullying report, his or her position, and the date the report is received

• Remember, employees must provide this written report to the school official within two (2) days of witnessing or learning of a bullying incident


Discriminatory Harassment

• Students with disabilities are much more likely to be

bullied than their nondisabled peers. Some studies suggest 2-3 times more likely.

• Bullying affects the ability of students with disabilities to learn.

• Students with disabilities have legal rights when they are the target of bullying.

• Children with disabilities are entitled to a free appropriate public education and bullying can be an obstacle to that entitlement.

Source: PACER National Bullying Prevention Center


What Does OCR Consider Discriminatory Harassment?

• Student is a member of a statutorily protected class (race, color, national origin, sex, or disability), and the peer harassment is based upon the protected class

• School system knew or should have known of the discriminatory harassment

• Harassment is so severe, pervasive, or persistent as to interfere with or limit participation in the student’s education

• School system failed to eliminate the harassment and prevent it from reoccurring

Dear Colleague Letter: Harassment and Bullying (OCR Oct. 26, 2010)


Federal Courts & Discriminatory Harassment

• Anti-discrimination laws also provide a private right of action for student-to-student discriminatory harassment in public schools

• United States Supreme Court set forth the elements that must be met for a Plaintiff to prevail in a damages action o Davis v. Monroe County Bd. Of Education, 119 S. Ct. 1661 (1991).

• Standard of Liability in Federal Court is much more

stringent than in OCR investigation


Discriminatory Harassment Standard of Liability

• Member of a protected class and harassment is based upon membership in that protected class (i.e. race, color, national origin, sex, disability, or religion)

• Harassment sufficiently severe or pervasive to bar access to education and creates an abusive educational environment that is objectively offensive

• The School System knew about the harassment and was “deliberately indifferent”


Case Example Sutherlin, et al. v. Indep. Sch. Dist. No. 40 of Nowata County,

Okla., 2013 WL 1975644 (N.D. Okla. 2013)

• Student with Asperger’s disorder physically abused by peers, and called names such as “retard,” “crazy,” “creepy,” and “freak”

• Bullying was reported by parents and others but school took no action to cease or prevent the harassing behavior

• Student became depressed, withdrawn, and suicidal

• Court held that the facts supported the standard for a private right of action against the district for disability based harassment

Case Example Mathis v. Wayne County Bd. of Educ., No. 11-5979 (6th

Cir. 2012) • Two basketball team members sexually harassed on

a regular basis (sexually explicit jokes, sexually based physical “pranks,”

• Resulted in sexual assault of one student • Delayed reaction to the assault and no disciplinary

consequences • No response to daily sexual harassment • $200,000.00 award against district


Is it Bullying or is it “Normal” Conflict?

• Is the behavior unwanted aggression or “rough play”? o Unwanted aggression occurs when one student uses

intentional harmful behaviors (whether threatened or actual) against another student

• Is the behavior repetitive?

o The student must either experience multiple incidents of aggression, OR

o There is a strong concern that a single aggressive behavior has a high likelihood of being followed by more incidents of aggression.


What Is a Power Imbalance?

• A Power Imbalance may be characterized by:

o Physical Characteristics (age, size, strength) o Popularity or association with popular peers o Background/demographic characteristics

(member of a majority or minority group, socio-economic status)

o Abilities and Skills (academic, physical, artistic) o Access to money, resources, information o Being outnumbered o Presence of weapons Source: stopbullying.gov



Adapted from Girl Scouts—Mile Hi Council NORMAL CONFLICT BULLYING Equal Power Imbalance of Power

Accidental Purposeful

“Mutually” competitive or opposing action or engagement (includes disagreements, arguments, and fights).

One-sided

Less Serious, often a normal part of growing up and of life

Serious with threats of physical or emotional harm. Intent to hurt through humiliation or exclusion. Affects social status, relationships.



NORMAL CONFLICT BULLYING

Equal emotional reaction Strong emotional reaction from target/victim; little or no reaction from bully.

Not seeking power, attention, or things

Seeking power and control, often aggressively. Seeking material things or popularity.

Remorse---takes responsibility No remorse, often manipulative. Will blame target/victim and/or discount their feelings.

Effort to solve problem No effort or willingness to solve and/or acknowledge problem.


INVESTIGATE & ACT

• Binding case law precedent reinforces the importance of prompt and appropriate investigation and response to alleged bullying:

• Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982 (5th Cir. 2014)

• Nevills v. Mart Indep. Sch. Dist., 2015 WL 3526101 (5th Cir. 2015)


Prohibitions

• Retaliation against any person who reports bullying in good faith, who is thought to have reported bullying, who files a complaint, or who otherwise participates in an investigation or inquiry concerning allegations of bullying is prohibited and subject to discipline.

• Intentionally making false reports about bullying to school officials is prohibited conduct and will result in disciplinary measures


Don’t Say … 1) “That’s just the way kids are today.” 2) “He needs to toughen up/fend for himself!” 3) “Kids have always been bullied.” 4) “Girls are just mean to each other at this age.” 5) “Boys will be boys.”


Don’t Say … 6) “There’s nothing we can do about it.” 7) “We can’t protect them from everything.” 8) “I’m sure he/she didn’t mean it.” 9) “If she just didn’t ___, then kids wouldn’t pick on her.” Office for Civil Rights (OCR) Guidance


Do NOT … 1) Ignore bullying behavior 2) Fail to report bullying behavior according to School Board policies and procedures 3) Fail to intervene according to School Board policies and procedures 4) Encourage bullying behavior 5) Participate in bullying behavior


Do NOT … 6) Model bullying behavior 7) Model bullying attitudes (see What Not to Say) 8) Only suspend/expel the “bully” (as exclusive response) 9) Retaliate against the victim 10) Retaliate against the reporter of the bullying


Bullying Basics

Recognizing Bullying Identifying Likely Targets Responding to Bullying Documenting and Reporting

Incidents of Bullying Intervention Techniques Suicide Prevention


DO … • Address bullying behavior timely and appropriately

• Report bullying behavior according to School Board

policies and procedures

• Intervene according to School Board policies and procedures

• Address all participants in bullying behavior according to School Board policies and procedures


DO … • Model appropriate interpersonal interactions through

pro-social verbal and non-verbal behavior with students and other adults

• Model an attitude which discourages bullying

• Discourage bullying behavior and reiterate to students (in an age-appropriate manner) (and to colleagues, if necessary) that bullying is a violation of the code of student conduct and illegal


DO … • (In addition to appropriate disciplinary consequences,)

provide instruction/intervention for the student who engaged in bullying behavior per School Board practices and procedures

• Support the victim via appropriate School Board practices and procedures

• Remain objective and receive information from the reporter of suspected bullying, then submit the report according to School Board procedures © Hammonds, Sills, Adkins, & Guice,

LLP. For educational use only. 2016-2017 SY

DO … • Foster positive school-home and school-community

relationships

• Screen bullying victims and perpetrators for mental health problems (Klomeck et al., 2009)

• Access school mental health professionals (e.g., social workers, school psychologists) who in turn should collaborate with other school system mental health professionals and with community mental health professionals to facilitate follow-up on screening activities (Lieberman & Cowan, 2011)


Bullying

La. R.S. 17:416.13

bullying and retaliation - what every educator needs...

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