Every day the media reports on new stories involving children harmed by bullying, in both big and small ways. Any institution that provides programs for children (e.g. schools, day camps, park districts, recreation departments) faces the potential that bullying may occur on its watch and the risk that it may be held responsible for the impact of that behavior, or, at a minimum, be required to defend itself against allegations that it should have done more. If this responsibility is not lived up to it can result in significant attorney’s fees, settlement payments and other expenses as a result of a lawsuit filed by or on behalf of a bullied minor.
Federal anti-discrimination laws impose an obligation on schools to intervene and stop bullying that rises to the level of harassment. This obligation arises whenever harassment as a result of a student’s race, color, national origin, sex or disability deprives that student of the educational benefit of attending school. Typically, an institution will not be liable for an initial act of harassment. However, once it is known that harassment has occurred, the organization must intervene to prevent further harassment.
State laws often impose even greater and more demanding obligations on schools and other organizations that work with minors. All fifty states have enacted anti-bullying legislation. The definition of bullying used in these state laws can be much broader than the harassment addressed by federal law. For example, Illinois prohibits bullying related to a lengthy list of characteristics, such as ancestry, sexual orientation and gender identity or expression (whether these are “actual or perceived characteristics”) and also prohibits bullying based on “any other distinguishing characteristic.” The law also applies to bullying of a person based on their association with a person or group with such characteristics.
Many states impose an affirmative duty on schools to protect their students from bullying. Some require schools to adopt an anti-bullying policy. States may even dictate some of the provisions of a school’s anti-bullying policy. In some states, the strictness of these requirements can be limited by or balanced against tort immunity laws that make it more difficult for a victim of bullying to bring a private lawsuit against an educational institution than against other parties, such as a private citizen or a for-profit corporation. Those limitations, though, may still allow for suits against teachers, principals, administrators and other institutional leaders.
In an effort to satisfy these responsibilities, schools and other organizations can also inadvertently impose even more demanding obligations on themselves if they enact an anti-bullying policy that is too strict and/or too specific. An organization that drafts a policy that is stricter than what is required by law can be held liable for not adhering to the tougher standard they set for themselves. An organization can also be held liable if it drafts a policy that is more specific than necessary when stating the steps that must be taken in response to bullying and fails to adhere to those steps, even if its response was reasonable and responsible.
Moreover, schools and other organizations that work with minors need to be aware that much bullying behavior takes place on social media or through means of electronic communication. Kids who engage in bullying purposefully attempt to hide their actions from authority figures, whether they are acting in-person or by taking their behavior online. Schools and other institutions must be prepared to respond to both traditional bullying and the developing problem of cyber-bullying. They can be obligated to respond to cyber-bullying even if it is committed by a minor using an off-site computer that is not owned or in the possession of the organization.
Adequately preparing to prevent and respond to bullying is a challenging task that is made more complex because of the variation in state laws regarding this issue, but your school or organization must be equipped for the challenge. The well-being of the minors you work with depends on it. So does the well-being of your organization.