Responding to Bullying and Discriminatory Harassment in School

Schools have an obligation to investigate reports of bullying incidents directed toward students, and to respond to discriminatory harassment toward students with disabilities, as well as other protected classes of students.  Several recent legal cases provide guidance for schools when responding to bullying and discriminatory harassment directed toward students with disabilities.

• In Phillips ex rel. Jacob v. Roberston County Board of Education (59 IDELR 227) , a recent case in Tennessee, the court ordered a district to pay $300,000 in damages to a child with Asperger s syndrome.  Tragically, the child was left legally blind in one eye during a classroom incident with a peer.  At the time of the incident, the classroom teacher had left the classroom without leaving another adult in charge. School witnesses testified that prior reported bullying incidents toward the student had been corroborated, and that the student was a "bully magnet. " The classroom teacher testified that she had not been informed that the student was vulnerable to bullying, nor did she recall reviewing the student's IEP. The court held the district was negligent in failing to inform the classroom teacher that the student was vulnerable to peer harassment, and in failing to provide supervision of students, as provided in school district policies.

• In G.M. by Marchese v. Drycreek Joint Elem. Sch. Dist. (59 IDELR 223) , a case in California, the court held that the school district was not "deliberately indifferent" in responding to incidents of bullying and harassment.  The school had separated the students reported to have engaged in bullying and harassment from the victim, a student with a disability. S everal school staff members, including the counselor, teachers, and building administration, had met with the offending students, and issued disciplinary consequences.  These constituted "affirmative steps… to address the incidents of harassment . "

• In Hoffman v. Saginaw Pub. Schs. (59 IDELR 68) , a case in Michigan, the school district successfully moved to dismiss the parents' claims of disability and sexual harassment against the school for peer-on-peer behaviors.  The court held that the behaviors, including mimicking the student's postural problems , caused by a bone disorder, and making obscene gestures, as well as multiple other obnoxious behaviors, do not suggest that the students were motivated by discriminatory animus.  As the court explained, "The facts alleged in the complaint…do not suggest that the reason why M.M. was harassed was either his sex or his disability. The conduct of jerks, bullies, and persecutors is simply not actionable…unless they are acting because of the victim's gender (or, in this case, because of the victim's gender or disability)."  (Internal quotations marks omitted.)

These recent cases, and others like them, point to the need to take action in response to each report of harassment or bullying. Responses must be directed at stopping the harassment, with good communication with the parents and students impacted , and detailed documentation of the steps the school takes in responding . Also, d uring any investigation of a bullying report , schools should consider whether the bullying behavior rises to the level of discriminatory harassment, and, if so, follow their anti-harassment and anti-discrimination policies in addressing the matter .

Please contact your Clark Hill attorney for assistance with this and other issues impacting students with disabilities in your schools.