November 23, 2017

Bullying in the US and Canadian School Systems: The Legal Standard

Antibullying Programs

Legal Standard of School Bullying in US and Canada

Bullying Legal Standards

Over the last several years, U.S. states have enacted laws that require public schools to develop policies and procedures to stop bullying.  New Jersey may have the toughest anti-bullying law in the nation, requiring schools to include in their policies that a teacher can be disciplined for not reporting bullying. Like other states, New Jersey requires that administrators report to the board of education and to the state department of education the extent and type of bullying that occurs in their schools and to certify they have specific programs in place to educate students about bullying.

In Canada, each province has passed laws that, in varying degrees, address bullying in public and Catholic schools. Perhaps the best example of protective legislation is Ontario’s Accepting Schools Act, passed in 2012, which was developed in response to several suicides of bullied students. The act defines bullying behavior as including psychological, social or academic harm and harm to an individual’s reputation.

On Sept. 13, 2013, Manitoba passed the Public Schools Amendment Act (Safe and Inclusive Schools), which requires public and private religious schools to create a “respect for human diversity policy” that protects student organizations wanting to create clubs that promote antiracism, respect for people with disabilities, or awareness and understanding of people of various sexual orientations. The new law builds on Manitoba’s 2004 Safe Schools Charter, which says that bullying or abusing someone physically, sexually or psychologically — verbally, in writing, or otherwise — is unacceptable and requires that all schools develop codes of conduct and emergency response plans, and review them regularly.

To understand the law as it pertains to bullying in the United States, let’s look at two important U.S. Supreme court cases.

In Gebser v. Lago Vista Independent School District (1988), the Supreme Court ruled that bullying, in some instances, constitutes sexual harassment. The original case, over an off-campus incident, involved a perpetrator who was a school employee and an underage student victim. The girl brought suit against the school district, but failure to produce reliable proof that the school knew about the incident resulted in a lower court ruling in favor of the school. The fact that someone in a position of authority over the young person constituted harassment, the Supreme Court ruled, but because the school did not know about the bullying or harassment, it could not be held liable. Had it known and done nothing to stop the abuse, the school could have been sued, with particular defendants named in the case.

This ruling should send a clear message to schools that, in some cases, bullying is legal harassment, and that suits can be brought forward and won on a preponderance of the evidence if it is shown the school or school officials were negligent in bullying cases — even in off-campus incidents.

In Davis v. Monroe County Board of Education (1999), the Supreme Court determined a school board was liable for student-on-student harassment when the school acts with “deliberate indifference” toward the bullying act. This court essentially concluded that the harassment in this case was so severe, it prevented the student’s access to an equal opportunity in education or benefits. While this decision provided some legal framework for a school board’s liability, the court reminded schools that this framework did not exonerate them from the responsibility of doing the right thing.

These two cases teach us that bullying constitutes harassment when schools either know about the bullying and do nothing to stop it, or allow an incident of bullying to get so severe that it gets in the way of a student’s right to a free public education and opportunity. In layman’s terms, negligence is knowing what to do to prevent a problem but choosing not to act. Adults, in their standing in the school, have a responsibility and an obligation to kids, parents, and the community to stop any type of harassment or bullying whenever they see it.

The underlying theme is that administrators and teachers are responsible for what happens in their schools and that they have a moral, ethical, and legal responsibility to do something about bullying whenever it occurs. The bottom line is: When an incident of bullying is brought to their attention, do they sweep it under the rug or do they deal with it and punish the offenders? How well they can honestly answer this question will determine whether their argument will stand up in court or not.

What is Bullying?

There are standards that an event must meet to constitute bullying that can result in legal action. This is the general rule or “harassment test” that determines whether a student or another person is guilty of harassment. The bullied student must be identified in a specific group, identified by gender, race, or disability, and the harassment must be based on discrimination law regarding the specific group. The harassment must be so severe that it hinders the student from carrying on in a manner that would allow him or her to continue their education or engage in certain pursuits without the fear of being harassed. In a bullying case, it must be shown that a school official had knowledge of the harassment, did nothing to end it, and did not implement its student code of conduct to discipline the perpetrator or remove them from the victim — thereby allowing the harassment to continue.

There is no legal definition of bullying. In the school context, bullying can be a severe single occurrence intended to hurt someone physically or emotionally. More often, bullying is a series of events that, over time, creates an ongoing pattern of harassment. If bullying cannot be controlled in school — if we can’t stop the bully — then, typically, civil charges can be filed against the bully. These charges are harassment or harassing communications, which are misdemeanor cases.

In the United States, laws and terminology differ from state to state, but if a child has been threatened, the bully may be charged with “threatening behavior.” If a child has been sexually assaulted, the bully may face an “indecent assault” offense. If a child has been physically assaulted, then the bully may be charged with “criminal offense of assault.”

In Arizona’s Protection from Harassment Act, two criminal offenses could be applicable to bullying: harassment and the offense of putting people in fear of violent acts. In this circumstance, prosecution cannot proceed unless the harassment has occurred more than once.

While there is no offense termed bullying under the Canadian Criminal Code, many behaviors or incidents characterized as bullying fit the definition of criminal offenses. These include, for example, criminal harassment (CCC 264), uttering threats (CCC 264.1), assault (CCC 265 & 266), and sexual assault (CCC 271). Perpetrators may face juvenile or adult sentencing, depending on the circumstances of a crime.

In numerous situations, students have been charged for their role in bullying, but the lack of a legal definition of bullying defines a key difficulty in criminalizing bullying: What standard should be used? Does the state or province base the charges on the nature of the bullying itself — or on the response of the victim? In other words, are charges brought, for instance, under a criminal stalking law against when student who follows and relentlessly harasses another? Or is the student charged with criminal harassment only when the bullied student becomes sufficiently fearful for her life?

Are Antibullying Programs Working?

School should be a place where children feel safe and secure — a place where they can count on being treated with respect. Even with new canned programs and tolerance efforts by schools, however, the unfortunate reality is that many students are still targets of bullying. School personnel continue to minimize or underestimate the extent of bullying and its academic, physical, and emotional consequences. As a jury in Indiana concluded this week, bullying is often tolerated or ignored. In this case, a 15-year-old girl arrived at school one morning to find pictures posted around the school that had been edited to show her in a sexually suggestive manner. The girl’s family claimed that the school district was negligent in how it handled the incident and failed to offer proper counseling to the girl as she struggled to recover from the incident.

Ask junior high school students if they have witnessed bullying or have been victims of a bully over the past several weeks, and you will find not only that bullying is still occurring but also that it has been taken to the cyber playground — where it is more difficult to observe and control.

Antibullying programs that are now common in schools may be having the opposite of their intended effect, according to new research from the University of Texas–Arlington. In a study published in the Journal of Criminology, researchers found that students at schools with anti-bullying initiatives are actually more likely to be victims of bullying than students who attend schools without such programs. This raises the question as to whether bullying behavior has changed in schools. The authors speculate that while bullies may have learned a variety of antibullying techniques, their dominant social status may compel them to ignore the problem-solving skills they have learned through antibullying programs. Thus, they suggest, prevention strategies may be more effective if they are developed around the bully-victim dynamic.

To be sure, antibullying programs have increased awareness of the problem. Increases in both the incidence of the reporting of bullying and media accounts of bullying-related litigation suggest that we as a society have taken note of the harmful effects of bullying. And this is a good thing. From awareness comes action — hopefully, that changes the cultural landscape of our schools so that all students feel welcome and safe no matter their sexual orientation, disability, national origin, or other things that might cause a bully to prey on another. A welcoming community that accepts diversity and teaches empathy is, in my opinion, what is necessary in our schools if we are to protect children from the harm of bullying.

Who is the bully?

Today’s bully isn’t just the schoolyard punk who shoves other kids around. It’s the seventh-grade girl who tells lies about a classmate to keep her out of the “girl group.” It’s the handsome student council president who pushes a wheelchair-bound child into a wall. It’s the 10th grader who says something on Facebook about someone that she wouldn’t have the guts to say to her face. It’s the aide on a school bus who sexually molests a 4-year-old while sitting next to him. It’s the teacher whose punishment of a student doesn’t fit the “crime.” Bullies can be athletic, academically smart, attractive, and cunning. School administrators don’t see them in the crowd. They blend in and work under the radar. They bully when no one is looking and they intimidate their victims, who are too afraid to tell.

Bullying a Public Health Issue

Bullying in school is a significant public health problem. Physical aggression has been linked to an increase in injuries, violent crime, school adjustment problems, substance use, and mental health problems among kids. The 1998 U.S. Health Behavior in School-aged Children survey first identified bullying and victimization as significant problems, noting that victims are more likely than kids who have never been bullied to perpetuate the cycle because they often perceive violence as a solution to their problems. This prompted an increase in school-based bully-prevention efforts.

The recent suicides in Canada of Amanda Todd in British Columbia and Rehtaeh Parsons in Nova Scotia underscore the point that, unfortunately, teens will take desperate measures when bullied, harassed, and humiliated by peers. While there is a strong association between bullying and suicide, other public health influences, such as depression and delinquency, contribute to suicide-related behaviors. This understanding led mental health experts writing in the Canadian Medical Association Journal to call for school-wide interventions after a student suicide rather than focusing prevention efforts on the close friends of the suicide victim. The journal’s editors concluded that bullying among youth is a significant public health problem and that public health strategies can be applied to prevent both bullying and suicide.

Where do we go from here?

The school bully has been around forever. The stereotypical bully — the schoolyard tough guy who is quick to fight, intimidate, and threaten for his own gain or to look good in front of other kids — has become so much a part of the school environment that, in some situations, school administrators consider this intrusion into the school culture as the norm. This response is unfortunate in light of today’s understanding about the scope of bullying and the psychological damage it inflicts — up to the point of suicide.

There are lots of programs — some effective and some not so effective — that attempt to change mean kids into kind helpers. But these, in my opinion, don’t change the core of an individual who just doesn’t have empathy for another. Laws and school policies, training and punishment for bullying and lawsuits might cause students and school districts to sit up and take notice. We need these elements if we are to continue moving in the direction of creating schools where kids feel safe and can learn without looking over their shoulders for bullies.

School Liability under Section 1983

school liability

School liability under section 1983

Schools have a duty to protect students from harm, including the harm inflicted or created by its own staff. While acts by a staff member resulting in injury to a student generally fit into the category of negligence, a teacher or an administrator as a state actor can generate a state-created danger.

The difference with state-created danger, as opposed to negligence, is its application under the 14th Amendment of the Constitution and Section 1983 of Chapter 42 of the United States Code. School officials can be held responsible when they knew of impending danger, were recklessly indifferent to it, and through the authority vested in them by the state (public school board of education), knowingly created a dangerous environment that led to an otherwise preventable injury. Liability under Section 1983 can be imposed on a school district if a student’s deprivation of rights is consistent with a school or district’s custom or policy, or if it results from an act of those who are ultimately responsible for setting policy in that area of school business (see City of St. Louis v. Praprotnik, 485 U.S. 112 [1988]).

Section 1983 has been used to seek monetary damages for violations of what courts refer to as bodily integrity, which is protected by the 14th Amendment. The 14th Amendment’s Due Process Clause prohibits “unjustified intrusions on personal security.” Most cases involving bodily integrity in schools concern sexual molestation, although excessive corporal punishment may also implicate this right. Educators who deliberately cause serious harm to a student, such as in the case of a coach who put a student’s eye out by hitting him with a metal object (Neal ex rel. Neal v. Fulton County Board of Education, 229 F.3d 1069 [11th Cir. 2000]), may be sued under Section 1983 for due process violations if one or more of the conditions below are met.

Section 1983 is used to bring suit only against individuals whose actions are attributable to the state, and cannot be employed against a private wrongdoer (DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 [1989]). Minor injuries that result from a teacher deliberately hitting a student — or even serious injuries that result from a teacher’s own negligence or deliberate indifference — do not violate the Due Process Clause. In one case, for instance, a court ruled that a teacher’s repeated humiliation of a student was not a due process violation (Costello v. Mitchell Public School District 79, 266 F.3d 916 [8th Cir. 2001]). Another court, however, has said that there may be a due process violation when an educator’s deliberate action “shocks the conscience” and increases the danger to a student. In that case, which involved a violent, 16-year-old special education student who had threatened to kill himself, school officials sent the boy home without notifying his parents (Armijo Chavez v. Wagon Mound Public Schools, 159 F.3d 1253 [10th Cir. 1998]).

Conditions for liability under Section 1983

A school district and/or its officials or employees may be held liable under Section 1983 if any of the following conditions are met:

  • The wrongdoing was undertaken pursuant to a custom or a formal policy of the district, the individual who committed the wrongful act was an official with final policymaking authority, or an official with final authority ratified a subordinate’s wrongful act (Gillette v. Delmore, 979 F.2d 1342 [9th Cir. 1992]). As an example, failure to have a formal policy for dealing with sexual harassment might expose a district to Section 1983 liability because the lack of a policy indicates a custom of tolerating sexual harassment (Doe v. Estes, 926 F. Supp. 979 [D. Nev. 1996]).
  • A school official with the authority to take corrective action had actual notice of wrongdoing under Section 1983 and was deliberately indifferent (Gebser v. Lago Vista Independent School District, 524 U.S. 274 [1998]). This Title IX standard can be applied in Section 1983 cases as well. Inadequate hiring policies (Doe v. Hillsboro Independent School District, 81 F.3d 1395 [5th Cir. 1996]) or training of employees (City of Canton v. Harris, 489 U.S. 378 [1989]; Doe v. Estes, 926 F. Supp. 979 [D. Nev. 1996]), for instance, may be viewed as forms of indifference.
  • A school district’s action either exposed students to dangers that they otherwise would not have faced or it increased the risks associated with existing dangers (Johnson v. Dallas Independent School District, 38 F.3d 198 [5th Cir. 1994]; Leffall v. Dallas Independent School District, 28 F.3d 521 [5th Cir. 1994]). The mere fact that a student’s rights were violated at school, or that a violator was a teacher, does not mean that a state-created danger exists. Rather, it must be shown that the school exposed a student to people with a known propensity for harming the plaintiff, or that it provided such people with an opportunity to injure the student (Plumeau v. Yamhill County School District, 907 F. Supp. 1423 [D. Ore. 1995]). Assigning a student of known violent propensities to the class of an inadequately trained teacher, for instance, is the kind of step that could lead to liability (Compare Cornelius v. Town of Highland Lake, 880 F.2d 348 [11th Cir. 1989]).

Plaintiffs who allege state-created danger must demonstrate four elements in a Section 1983 claim:

  1. A relationship existed between the school and the student.
  2. The harm to the student was ultimately foreseeable and fairly direct.
  3. The school willfully disregarded the student’s safety.
  4. The school used its authority to create an opportunity that otherwise would not have existed for injury to occur.

Foreseeability and willful disregard

In school cases, plaintiffs’ claims usually center on the failure of a school district to prevent dangerous situations that adversely affect a student’s right to be protected from harm. Teachers, principals, and other staff, by the nature of their relationship with students, have an affirmative duty to protect students in dangerous situations. As an example, if a principal or other school official charged with the responsibility of teacher supervision receives a complaint from a parent, a student, a teacher, or other staff member that a teacher is yelling at students, hitting them on their knuckles with a ruler, pushing their heads into their desks with force, pinching them, or abusing them in other ways, the school official has an affirmative duty to investigate quickly and thoroughly, and to take steps to end the abuse. Any reasonable school administrator would foresee harm to students if the behavior continued. Not taking complaints seriously or conducting only a minimal investigation may be considered acting with deliberate indifference to the mistreatment of children, thus creating a dangerous environment that can lead to a lawsuit under Section 1983.

Another hypothetical case illustrates another example of a possible Section 1983 claim. An experienced special education teacher was responsible for the education, safety, and welfare of a class of eight children with disabilities. These students had expressive language disorders — rendering it impossible, or at best unlikely, that they would be able to verbalize to anyone that their teacher was abusing them. Two teacher aides, recent college graduates with teaching degrees, assisted the teacher in the classroom. The teacher aides saw the teacher physically abuse the students, but did not report the teacher’s actions to the appropriate law enforcement agency or the state agency responsible for the protection of children. The aides had a legal duty to protect the students from harm, but failed to exercise that duty; as such, the school administration had no notice that it was occurring. When the abuse finally came to light by a parent who asked about bruises on her son, the teacher aides admitted to having witnessed the abuse but said they were afraid to report the teacher to the principal. They also denied knowing that they had a legal responsibility to contact authorities outside of the school.

Though the administration had no notice that students were being mistreated, the situation may be viewed as a failure to provide adequate training. Through its administration, the school acted indifferently to student abuse when it did not ensure that the aides understood their duty to report abuse when they see it. This failure to train allowed a situation that otherwise would not have been present to persist — resulting in continual harm to the students.

Any reasonable school administrator would foresee that if the abuse in these examples went unchecked, the harm to students would be fairly direct. In both cases, it may be determined that the school acted in willful disregard for the safety of the students. In the first case, had no or minimal investigation taken place, the school could be found to have responded unreasonably to the danger students faced. In the second case, no training was provided that could have prevented a dangerous situation.

Student on student abuse under Section 1983

Up to now, we have focused on the actions of school personnel in describing scenarios for Section 1983 liability. In 2009, the Supreme Court held in Fitzgerald v. Barnstable School Committee that a plaintiff can bring a claim for student-to-student sexual harassment under Section 1983 (Fitzgerald v. Barnstable School Committee, 555 U.S. 246 [2009]). The case details of paint a disturbing picture of elementary school-level, student-on-student sexual harassment. A kindergarten girl told her parents that each time she wore a dress on the school bus, a third-grade boy would coerce her into lifting her skirt or pulling down her underpants and spreading her legs. The police, however, were unable to corroborate her story and did not bring criminal charges against the boy. The school’s own investigation ended without disciplinary measures against the boy. Subsequently, the boy continued to bully the girl.

The justices ruled unanimously that Title IX protections did not preclude Section 1983 liability. Thus, the Barnstable case opened the door for students who are bullied and harassed to hold individual school officials liable under Section 1983, for permitting sexual harassment by other students.

Damages under Section 1983

Students suing under Section 1983 are entitled to recover only nominal damages unless they can show actual loss (Carey v. Piphus, 435 U.S. 247 [1978]; Memphis Community School District v. Stachura, 477 U.S. 299 [1986]). The damage award is not based on the value or importance of the violated right, but only on the actual injuries suffered. Students may also be able to obtain punitive damages against individual defendants who act with malice. Punitive damages against a school district itself are not permitted because the Supreme Court has reasoned that punitive damages against a government entity would punish taxpayers, and that only individuals — not government entities — can act with malice (City of Newport v. Fact Concerts Inc., 453 U.S. 247 [1981]).

It must be emphasized, however, that liability can be imposed on a school district if a policy or custom results in deprivation of rights, or if the acts of the highest officials responsible for setting policy in the school deprives a student of his or her due process guarantees (City of St. Louis v. Praprotnik, 485 U.S. 112 [1988]). As such, even with limitations on damages, students who win Section 1983 lawsuits can sometimes recover large awards.

What attorneys should review

For both defendant and plaintiff attorneys, the question to answer in such cases is: Did the school, through its administration and/or other employees, act affirmatively and with deliberate indifference in creating, or enhancing, a foreseeable danger to the student, leading to the deprivation of constitutional rights under the 14th Amendment?

If the school had culpable knowledge, and if its administration and/or other employees, conducted themselves in a way that affirmatively placed the student in a position of danger, a Section 1983 claim may be relevant. For liability to exist, the situation created by the school must be dangerous; the school must know that it is dangerous; and it must have used its authority to create an opportunity that would not otherwise have existed in which the student suffered harm.

Addressing Sexual Harassment in Schools to Avoid Lawsuits

School Sexual HarassmentAn elementary school principal claimed that a first grader violated the school’s sexual harassment policy. The boy’s crime? He was sitting behind a female classmate on the floor and put his fingers inside the waistband of her pants and touched her skin. He was accused of sexually harassing a classmate and suspended from school for three days and the school contacted the police, Department of Social Services and the District Attorney’s office.  The boy’s outraged parents sued the city and the school for not handling the situation appropriately and it ended up costing the school $50,000 in legal fees — plus insurance payouts totaling nearly a quarter million dollars.

The city settled the case and as part of the settlement the city agreed that the superintendent would approve appropriate training for the school’s principal who was overzealous in applying the school’s sexual harassment policy. The superintendent, meanwhile, was underzealous about training and supervising the principal. The school may have had a reasonable sexual harassment policy, but the principal might not have had the right understanding of the policy as it applied to six-year-olds to reasonably implement it. The result was the expenditure of a lot of money and time when the principal could have dealt with the situation simply by having a “teaching moment” discussion with both students, especially the six year old explaining that what he did was inappropriate and ask the parents to follow up at home.  Children this age don’t even know what sexual harassment is.

In another case, a school was ordered to pay $68,000 to a former student for failing to take reasonable actions to stop other kids from harassing him over their perception of his sexual orientation. The school disciplined the students and required them to attend counseling, but the harassment continued. The court determined that even though the school made some effort to end the harassment, its actions were ineffective.

Schools need to take reasonable and effective measures to protect students from harm. The points of contention were whether school officials responded quickly and adequately to protect the student from harm. Was the school’s response reasonable? The school thought so because it followed the student discipline code. Was it effective? When the harassment continued, the school didn’t modify its approach. Thus, the court concluded, the faculty’s actions were not only ineffective but also not reasonable. This school may have been zealous in its attempt to discipline students — but was underzealous in its determination to appropriately resolve the issue and protect the student from harm.

A teacher in another case was accused on several occasions of inappropriately touching students. Investigation by the district revealed nothing of a sexual nature. Later, the teacher asked a student to report to his office. There, the student claimed, the teacher sexually touched her and another student, who was the plaintiff in this case.

An investigation by law enforcement and child services personnel into this incident revealed that this teacher had, in fact, victimized several other students. The teacher was incarcerated for 10 years — but the school district was found not liable for the educator’s actions, either under Title IX (see our previous article on Title IX) or Section 1983. The court could attach no liability for the Title IX claim because school officials had no actual knowledge that this teacher had been engaged in sexual misconduct. Addressing the Title IX action, previous reports about touching had been investigated and resolved.  The school determined that there was no merit to the reports.  Therefore, the school could claim it had no actual knowledge for sexual misconduct. The court ruled that the Section 1983 substantive due process claim would not survive the deliberate indifference test because there was no knowledge of sexual misconduct and there was no reckless disregard for student safety. The school’s decisions about the teacher’s status after the initial investigation were based on what it knew, the court ruled, so those decisions were appropriate under the circumstances.

A school can never know everything that goes on between teachers and students. Could the school officials have watched the teacher more carefully following the initial complaint of him touching students? Yes, and that would have been an administrative decision. Was it mandatory? No. Would it have curtailed his inappropriate conduct with students? Maybe. Even with closer supervision after the first complaint, however, many teachers just don’t act in a sexual way with students in front of administrators or other teachers.

Questions regarding Sexual Harassment in Schools

The questions in all three of these cases are:

  • Did school officials act reasonably based on what they knew at the time?
  • Were their actions effective in ending the harassment and protecting the student from harm?

If, after a reasonable investigation, there is a determination that an observation or complaint does not constitute sexual harassment and the administration responds on the basis of that determination, then the school may withstand an allegation that it acted deliberately indifferent. On the other hand, if it can be demonstrated that there was no investigation, that an investigation was not reasonably conducted based on what was known, or that the investigation determined that sexual harassment took place but the school failed to take any or effective action, then the school might not withstand an allegation that it acted deliberately indifferent.

The administrative test, therefore, is:

  1. Was there an observation or complaint of sexual harassment?
  2. If so, did the school administration investigate the issue?
  3. Was the conclusion reasonable, based on the information learned from the investigation?
  4. Did the school administration take appropriate action to end the harassment?
  5. Was the action effective in ending the harassment?

Is it reasonable for school administrators to conclude automatically that a six-year-old’s way of touching another student is sexual harassment? Is it enough for a school administration only to suspend a student who harasses another over his sexual orientation if the harassment continues? Being overzealous or underzealous can cause problems for schools if lawsuits are initiated. In such cases, a careful review and assessment by attorneys representing both the plaintiff and the defendant can be an effective way to resolve disputes.

Why Schools Lose Lawsuits Over Bullying

All Sawyer wanted to do was to protect himself from bullies and the mean kids in middle school. He wrote to his guidance counselor, “I would like to let you know that the bullying has increased. I would like to figure out some coping mechanisms to deal with these situations, and I would just like to put this on file so if something happens again, we can show that there was past bullying situations.”

Three months later, he was punched so hard that he now is a paraplegic.

I’ve seen this so many times in the work I do. Kids are crying out for help: “How can I get the bullies to go away?” A lot of these children end up hiding out and become socially isolated, afraid of being bullied or harassed. Unfortunately for Sawyer, the school didn’t listen to his cry for help — and now the school is paying the price.

I was the expert witness on this case, and I can tell you that $4.2 million is no compensation for the life Sawyer will now live. If there’s one thing I want schools and parents to learn from this, it is that when kids ask for help, there is a reason. Follow up and find out what’s going on. Listen to your students and kids when they come to you.

When I presented at a law conference a few years ago, I brought with me a student who was the victim of bullying. Patrick was beaten and taunted in school for months — and nothing changed even after talking with his guidance counselor several times. We spoke before a room full of school administrators, teachers, and lawyers. After his heartfelt presentation, one of administrator asked, “If there is one thing that you would have liked your school to do differently, what would it have been?”

He said, “Listen. Listen when a student comes to you and says he is being bullied. That would have made the difference for me.”

A recent news report told the story of a principal who didn’t follow up when a parent came to him to report that his daughter was being bullied. A few days later, several of her antagonists severely beat her. When asked why he didn’t follow up when he knew about the bullying, the principal said, “It slipped my mind.” Having been a principal, I know that an administrator’s day can be extremely busy. But student safety is a top priority. A principal can’t fall back on the excuse that he or she forgot to follow up.

Lawsuits on the rise

More and more, bullying cases have parents turning to courts and schools defending their actions. Parents in Texas, convinced their 13-year-old son’s suicide was the result of daily bullying by peers and inaction on the part of school officials, filed a $20 million federal lawsuit against the school. This is but one of a growing number of civil court actions being taken against schools for allegedly ignoring bullying.

The number of lawsuits is on the rise several reasons: increased awareness, new standards, more experts in the legal community. Today, people are more likely to know about bullying and feel that they have to report it, and when kids are injured or commit suicide, the process of a lawsuit often brings out answers. High-profile cases around the country have caused states to strengthen their existing anti-bullying laws or to pass new laws. This has placed a legal focus on the issue of bullying.

Parents who litigate against the school allege that because a school did not follow the professional standard of care, their child was the victim of bullying. When a lawsuit is filed, the school takes a close look at its policies and procedures. It is also forced to examine what it knew about the alleged incidents, how it responded, and whether its response was appropriate. In a sense, this is a good exercise for a school — but being forced to do so in defense of a lawsuit shouldn’t be the norm. Schools should be examining these things routinely as part of a continual process of developing a climate that doesn’t accept bullying and that makes kids feel safe and secure.

As an education expert who has provided consultation and expert testimony on bullying cases around the country, I have reviewed school policies and what the administration knew about a bullying situation. In many situations, I have found that, under the circumstances, the school met the professional standard of care. Often, a school doesn’t know about bullying instances. It can’t respond if it doesn’t have that knowledge. If the school has an appropriate antibullying policy that meets professional and legal standards — and if the school follows its policy in light of what information it has — then, more than likely, the school will survive a lawsuit.

If, on the other hand — as I have testified to in many cases — the school administration had information about a bullying situation, knew that a bully’s behavior was problem but didn’t follow its own policies or the professional standard of care under the circumstances, and a student was injured, then the plaintiff will have a strong position in a lawsuit.

Attorneys should review these cases with an education expert, who will:

• Review the school’s policies to determine whether they meet professional and legal standards of care

• Review the files of the bully and the victim to determine whether anything in the record should cause a reasonable school administrator to have concern that the bully might injure the victim, and to determine whether the victim asked for help

• Render an opinion as to whether the school met the professional standard of care and, if not, whether any breach of that standard led to the student’s injury

What does this teach us?

Sawyer’s lawsuit reminds us that bullying can be costly. Sometimes, costly settlements make us realize that we can’t be complacent and can provide important lessons.

The lessons for schools:

• Continuously work toward developing a school climate where diversity is welcomed, tolerance is part of the culture, and where kids feel safe

• When a student says he is being bullied, follow up and don’t let it sit on your desk while attendance forms are filled out — the very life of a student could be in the balance!

Lessons for parents:

• Be aware of any behavior in your child that might be different than usual; your child might be the victim of bullying

• Get whatever information you can, and call the school

• If your child is asking for help, contact the school to be sure he’s getting it

Lesson for kids:

• When you are being bullied, ask for help from a teacher or counselor — and if you don’t get it, go to the principal and also let your parents know what’s going on

• Check out the numerous websites (include a hyperlink to the book) dedicated to helping kids who are victims of bullying

• Above all, don’t despair — there’s lots of help out there!

We all need to be more diligent when it comes to eliminating the scourge of bullying. Schools, develop a climate of acceptance and one where bullying is never allowed. Parents, be aware of the signs that your child might be bullied or might be the bully. Kids, if you see someone else being bullied, stand up for that person and don’t be a bystander. Working together, we can reduce the toll bullying takes on our children and on society.