Though there are no federal anti-bullying laws, the United States Department of Education (DOE) recently sent a “Dear Colleague” letter to all boards of education throughout the country advocating a more forceful approach to addressing bullying in schools. In the letter, the DOE acknowledged that bullying “fosters a climate of fear and disrespect that can…impair the physical and psychological health of its victims” and “negatively affect learning.” More tellingly, the DOE noted that certain student misbehavior that violates a school’s anti-bullying policy could also trigger liability under federal anti-discrimination laws enforced by the Department’s Office for Civil Rights (OCR).
The Role of the OCR
Within the DOE, OCR is responsible for enforcing within a school setting, federal statutes prohibiting discrimination based on race, color, national origin, sex, and disabilities. While the OCR does not explicitly pursue discrimination claims based on religion, it noted that many religious groups face discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics, thereby invoking a civil rights statute that is covered by OCR.
OCR has decreed that if a school encourages, tolerates, fails to adequately address, or ignores peer harassment based on the traits mentioned above at a level sufficient to create a hostile school environment, the school staff may be liable under the statutes enforced by the OCR.
As a general proposition, a school may be liable if it fails to address harassment incidents about which it knows or should have known. The school may be deemed to be on notice if the harassment was in plain sight, widespread, or well known to the staff, such as harassment occurring in hallways, recess, or on the school bus. The school may also be put on notice if a responsible employee knew, or in the exercise of reasonable care, should have known about the harassment. An example of this is when a student or another person informed the employee about the bullying and that employee did not inform the administration about the incident.
The DOE letter sets forth four major responsibilities that schools must undertake to address discrimination against students in the school.
When responding to harassment, the school must take immediate and appropriate steps to investigate the situation. Though the specific steps will depend on factors such as the nature of the allegations, the age of the student(s) involved, and the size of the school, the school’s investigation must be prompt, comprehensive, and impartial.
Once the school determines that harassment did occur, it must take effective steps to end the harassment. Appropriate steps include separating the bully and the target, providing counseling for one or both of the students implicated in the matter, and taking disciplinary measures against the harasser. The letter emphasizes that the school must not penalize the student who was harassed.
The school must take action to eliminate the hostile environment and its effects. To that end, schools may need to provide training or offer other intervention programs to the harassers, and on a broader level, to students, families, and school staff in the larger school community. It may also be necessary for the school to issue new policies against harassment and reporting procedures to respond to the problem. The school must provide additional services to the harassed student, especially if the school was late to respond to the incident.
The school must take steps to prevent future harassment and retaliation against the person filing the complaint. At a minimum, the school must reach out to harassed students and their families concerning how to report future incidents, follow up with them regarding any new harassment actions, and promptly respond to related problems as they arise.
As a final note, a school is required to discharge these duties if the misconduct falls under the anti-bullying policy, regardless of whether the student complained, requested the school to take action, or claimed that the misconduct was anti-discriminatory.
Can parents file a state claim against the school if their child is a bullying victim?
Under Connecticut law, there is no definitive answer as to when a school may be liable for an act of student bullying. We will outline the legal requirements and challenges parents may face in pursuing a negligence claim against the school. Whether a parent can prevail on such a claim is dependent on the unique facts and circumstances surrounding their child’s case. Therefore, it is best to consult with an attorney before contemplating a negligence claim.
Municipal employees, including public school personnel, may be held liable for failing to adequately perform ministerial duties. Courts have generally characterized ministerial actions as prescribed actions that do not involve the exercise of judgment or discretion. These types of actions are usually secondary in nature and executed according to established policy, rule or practice. Examples of ministerial acts include a school’s failure to inspect and keep hallways clean pursuant to a board of education bulletin or the absence of adult supervision during recess.
The Connecticut courts appear to be divided as to whether a school’s failure to take action against bullying when it knew or should have known about the misconduct constitutes a misperformance of a ministerial function. In one case, a parent filed a lawsuit against the local board of education, the school principal, and school athletics personnel after the student claimed that he had been bullied and harassed by other teammates during an afterschool high school program. The court held that the failure of school employees to guarantee the student would not be bullied or harassed during a voluntary after-school program was not a misperformance of a ministerial action.
The court ruled differently in another case when a student who had been teased on a daily basis had an object thrown at her head, causing severe brain injuries. After the incident, the parents filed a negligence claim against the town, the local board of education and the school, alleging that they failed to follow their anti-bullying plan. Because the school had prescribed detailed procedures for teachers and administrators to handle bullying incidents, the court reasoned that their related actions could be ministerial in nature and allowed the parent to proceed to trial under that theory.
Determining Whether an Action is Ministerial
While no two bullying incidents are alike, whether a particular action is ministerial is dependent on the level of detail in that school’s anti-bullying plan. A parent will likely have a better chance to prevail on a negligence claim under a “ministerial action” theory if the school fails to discharge a responsibility that was spelled out in the plan in such exquisite detail that it eliminated or marginalized a school employee’s judgment or discretion.
Since the revised state law mandates much more specific procedures for school employees to follow, some of these actions may be found to constitute ministerial functions. Given the recency of the law, it remains to be seen whether a court would adopt this view with respect to the actions outlined in the statute.
Municipal employees are granted qualified immunity with respect to performance of governmental acts, which are actions that benefit the public and are discretionary or supervisory in nature. Generally, there are three exceptions to the granting of this immunity: (1) actions that involve malice or intent to injure; (2) statutory causes of action against the municipal employee; or (3) a public employee’s failure to act directed at an identifiable person subject to imminent harm. The first two exceptions are self-explanatory, and most actions against schools for failing to prevent bullying do not involve them. Therefore, we will focus on the third exception.
To satisfy the third exception, so as to deprive a municipal employee of qualified immunity, plaintiffs have to show that there is (1) an identifiable victim; (2) imminent harm; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to harm. For school purposes, an identifiable person has traditionally included schoolchildren attending school during school hours.
One Connecticut court, however, seemed to expand on this definition when it noted that a person could be considered an identifiable person if he or she was exposed to imminent harm (which we will discuss in more detail below). The court also noted that Connecticut appellate courts have relaxed the definition of “identifiable person” for schoolchildren and identified them as a “foreseeable class to be protected.”
Establishing Imminent Harm
To satisfy the “imminent harm” element, the particular misconduct must be limited in time and geographical area. With respect to the time component, the action must be temporal or of short duration. Risks that might occur at some unspecified time in the future do not constitute imminent harm. In applying this definition, one court has held that an incident where a student tripped another student during recess did meet the requirement because recess was a defined period of time that took place after lunch every school day.
Another court held differently when a male student made a series of sexual threats and advances to a female student because the actions complained of occurred during different school years. In terms of the geographical area, the conduct has to be confined to a specific location. Therefore, if the action has the potential to occur at multiple places, then it would not constitute imminent harm.
As indicated above, the presence or absence of qualified immunity is a highly fact-specific inquiry. Therefore, if parents want to proceed with this claim against school officials, it would be best to consult with an attorney to evaluate the respective strengths and weaknesses of such a claim.
Our education law firm in Westport Connecticut serves clients with expulsion, discrimination, and general education law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best education law attorneys in CT on staff that can help with your Connecticut or New York education issues today.
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