By Adele Kimmel, Esq.
On March 11, I had a great conversation about bullying and the law with hundreds of people who participated in The BULLY Project’s “Speak with an Expert” Conference Call Series. Thanks again to The BULLY Project for inviting me to speak!
There wasn’t enough time to answer everyone’s questions, so I’m continuing the conversation here.
A little background information would probably help. As I mentioned on the conference call, within the last 15 years, there’s been a major shift in the way our society views bullying. Bullying is now recognized as a serious problem that needs to be addressed, not as some normal rite of passage to be endured.
And one key area in which this cultural shift is being reflected is the law. Forty-nine-states—all but Montana—now have anti-bullying laws that require schools to take action to address and prevent bullying. And there are court decisions throughout the country that address the obligations of school districts and officials to protect students from bullying.
Fifteen years ago, in Davis v. Monroe County Board of Education, the U.S. Supreme Court held for the first time that a public school district could be sued for damages under a federal civil rights law to compensate a victim of student-on-student bullying for the emotional harm she suffered. And though fifteen years may sound like a long time ago, the fact is that student-on-student bullying cases are an emerging area of law that is in the process of being developed.
In fact, part of the reason that I started Public Justice’s Anti-Bullying Campaign is to help develop this area of the law, so that courts hold school districts and officials accountable when they fail to protect students who are bullied by their peers.
Speaking of the development of the law, one participant in the call tweeted to ask for my thoughts on a case called Morrow v. Balaski. In that case, Pennsylvania high school student Brittany Morrow endured bullying by one her peers that included racially motivated threats and physical assaults. The threats and assaults were so severe that the aggressor was charged with a crime and ordered to have no contact with Brittany. When the aggressor returned to school, she threatened and assaulted Brittany again.
The court held that the school district did not have a “special relationship” with its students that would give rise to a constitutional duty to protect them from harm by other students. The court also held that no school official acted affirmatively to increase the dangers to Brittany. As a result, Brittany was left with no legal remedy.
This case represents a trend in how courts are interpreting school districts’ obligations under one particular provision of the U.S. Constitution—the 14th Amendment’s substantive due process clause. But, as I mentioned last night, there are claims under other laws—both federal and state—where school districts are being held accountable for failing to take reasonable steps to try to stop student-on-student bullying. So bullying victims and their families should not give up hope in seeking legal remedies!
Another participant in last night’s conference call tweeted to ask whether there is a legal option for bullied students to sue the families of the aggressors. The short answer is “yes.” The families of bullied students may pursue state law claims against the aggressors’ families for the emotional and other injuries suffered.
Though this is certainly an option—and may be a good one in some circumstances—it is a limited option for several reasons. As a practical matter, even when a family wins one of these lawsuits, any money damages awarded may not be recoverable because of the financial status of the aggressor’s family. In addition, these lawsuits often don’t cause the aggressor to stop bullying behaviors, may result in lost opportunities to help the aggressor stop his bullying behaviors, and don’t affect how schools respond to bullying.
Because Public Justice’s Anti-Bullying Campaign focuses on making systemic change to the culture of school districts—so that they better protect students from bullying—we have been filing suits against school districts and officials, not against the families of aggressors.
And, as I said during the conference call, when efforts to get a school to protect a student from bullying have failed, please feel free to contact Public Justice for legal assistance.