Posted On: October 31, 2010 by William D. Kickham

Federal Government Warns Schools: Ignore Bullying and Risk Prosecution

In a hopeful sign that more aggressive action is being taken against schools, public and private, that do not begin to act aggressively to monitor and punish bullying, the U.S. Department of Education (DOE) earlier this week took some firm action.

DOE sent letters to hundreds of schools across the country, warning them of potential liability for federal civil rights violations if they do not institute strong prevention and punishment policies for this kind of behavior. DOE is warning schools that either tolerating or otherwise failing to adequately address ethnic, gender-based, or sexual harassment could violate federal anti-discrimination laws. If a school is found to have failed to institute policies and practices that act to prevent bullying in any of these areas, the school could be prosecuted under U.S. Civil rights laws (of which there are several). This kind of civil liability could result if, for example, it were shown that a student was bullied because of their gender or ethnicity, or even their perceived sexual orientation.

This type of federal civil rights violation might apply, for example, in the Massachusetts bullying cases of Carl Joseph Walker Hoover and Phoebe Prince, two tragic examples of suicides caused by bullying. Walker was allegedly bullied by students because he was perceived to be effeminate and gay (ironically, his mother has reported that he was not gay, simply fragile and vulnerable.) Phoebe Prince was targeted supposedly because she was a girl and was the recipient of ethnic slurs such as “Irish slut.” In the Prince case, six students have been charged criminally with various counts of assault and even statutory rape. But if it could be shown in cases like these that any of the individual defendants’ actions were based on a protected status under federal civil rights laws and it could be shown that the school failed to take adequate measures to prevent these violations, then federal civil rights charges may also apply in addition to any state law violations.

The same could also apply to potential defendants in any suit brought by the family of the most recent victim of school bullying: Tyler Clementi, the 18 year-old Rutgers University student who committed suicide after a roommate posted a video on You Tube, showing Clementi having sex with another gay man in his dorm room. In that case, the roommate who surreptitiously filmed the encounter and another student who acted with the roommate have been charged with invasion of privacy. New Jersey authorities are also considering bringing a hate-crime charge in the case.

According to Russlynn Ali, assistant secretary for civil rights at DOE, the department is responding to a growing problem – and it ought to. DOE’s Office for Civil Rights received 800 complaints alleging harassment in the last year alone, and data from field offices indicate an increase in school-based harassment of certain groups, including gays, lesbians, and others. Today, The Boston Globe published Part 3 of a 3-Part special series on the growing impact of bullying in schools, "An Epidemic of Anxiety" ,and how parents are trying to deal with it

Acting almost certainly in response to the Tyler Clementi suicide at Rutgers, earlier this week New Jersey legislators introduced an “ant bullying bill of rights,’’ which at least one supporter claimed would be the toughest state law of its kind yet proposed. The bill, with the bipartisan support of legislators and anti-bullying advocates, seeks to supplement earlier laws on this subject that the New Jersey legislature enacted in 2002. The new bill would require antibullying programs to be put into effect in all public schools from grades K-12, and would mandate specific language in college codes of conduct to prevent bullying. More states should take their cue from New Jersey, and act fast to pass aggressive, enforceable antibullying statutes.

While bullying cases involve a hybrid of criminal, federal civil rights and civil (i.e., financial) liability issues, they are fundamentally cases that involve substantial personal injury – physical and emotional. As a Massachusetts personal injury attorney, I have a special passion for these types of cases. When I see someone suffer due to the inactions of “authority figures” such as teachers, principals and school administrators who stood by and ignored a patent threat to a student, I consider it a special opportunity to hold their feet to the fire in a court of law. When I think of what has been done to so many innocent victims of bullying, while school personnel turned a blind eye to it, I’m reminded of why I became a lawyer. If the family of such a victim as outlined in these cases above asked me to represent them in civil liability claims against school or town officials, my policy would be straightforward: Legally speaking, I’d hang them on meat hooks.

Let’s make this clear: Only when negligent and irresponsible school administrators, municipalities and private schools are held criminally culpable and financially liable, will effective policies and practices ever be instituted.