Posts tagged bullying

The threshold for suing a school board for bullying

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Parents of a bullied child are in a horrible bind.  For those who are aware of the situation, they send their children off to school each day knowing that the taunting, the insults and the rest of it will be waiting.  They can take an active role in trying to diffuse the problem – meeting with teachers and other staff, contacting the parents of the bullies, making the home environment more supportive to give children the right tools to respond – but all too often the only thing that works is switching schools.  Or letting time pass.

Schools also have a difficult role to play with respect to bullying.  A principal can introduce an anti-bullying policy, teachers can discuss the harmful and immoral aspects of bullying, students caught bullying others can be reprimanded, and so on.  But, ultimately, bullying is nearly impossible to stamp out entirely. 

What should a parent do when they feel the school isn’t doing enough?  And what should a school do when it feels it has done enough but the problem persists?

As with many other areas of human interaction, the courts will only get involved with incidents of bullying when things get pretty bad.  But where is that threshold?  The cases are few, but the news stories are many:

  • CBC reported last August that a mother was suing a Winnipeg school board because she alleges her son suffered brain damage as a result of a bullying incident at school while an educational assistant looked on.  No news since, and no judgment either.
  • CBC reported last February that a mother was suing an Ottawa school board because she alleges her daughter suffered (and continues to suffer from) depression and anxiety as a result of repeated bullying and harassment.  She was seeking over $300,000 in damages arising from the school board’s failure to protect her daughter from these events, but news broke yesterday that a settlement was reached.
  • Law Times reported last month that four families were suing a school board in southwestern Ontario because they allege their children were harassed, tormented and abused by teachers and students.  They were seeking $35 million in damages.  The article also notes the trend among parents to start lawsuits against school boards in small claims court involving these sorts of issues (see here for a previous post on the subject).

These types of claims are a relatively recent phenomenon, and there do not appear to be any cases on the books (at least not in BC) that can be relied on as a direct precedent.  Traditionally, it has been expected that parents of a bullied child could only seek a remedy through human rights legislation – that is, bullying could only be resolved by legal means if there was an element of discrimination and the educators failed to take all measures short of “undue hardship”. 

The most well-known bullying case is School District No. 44 (North Vancouver) v. Jubran (CanLII), where the BC Court of Appeal ruled on a claim in the context of homophobic bullying at a public school.  Mr. Jurban, who did not self-identify as gay, had suffered through five years of homophobic insults and harassment by other students.  Before he graduated, he complained to the BC Human Rights Commission, which took up his claim.  The BC Human Rights Tribunal held that he had been subject to harassment on the basis of sexual orientation, and the school board was liable for not providing an educational environment free from this harassment.  This decision was upheld by the BC Court of Appeal and the Supreme Court of Canada.  They school board was liable because it was determined that it had not done enough to stop the harassment.  Jubran should be studied by schools to determine what measures were insufficient in responding to bullying that involves discrimination.

Another human rights complaint related to bullying is the subject of a very recent decision of the BC Human Rights Tribunal.  In JT v. School District No. 36 (CanLII), a father filed a human rights complaint on his daughter’s behalf claiming that a school board in Surrey discriminated against her on the basis of physical and mental disability (she has cerebral palsy and a mental disability).  The father claims that three students taunted and insulted his daughter about her condition and in one instance physically assaulted her, while the school response was insufficient.  His daughter suffered from serious depression as a result.  The school board had tried unsuccessfully to prevent the claim from being filed on the basis that a time limit had expired, but the Tribunal ruled that the bullying and the school’s response constituted a “continuing contravention”, which extended the time limit.

JT and the news stories cited above point to an increasing reliance by parents on the legal system to address a percieved insufficient response by schools to bullying.  School board should take note of these developments and understand the standard their schools should meet to prevent these sorts of claims from arising.

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A non-legislative response to bullying

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There was an interesting opinion piece in the New York Times over the weekend from two professors based in Massachusetts discussing the new state law requiring schools to establish an anti-bullying curriculum, investigate incidents of bullying and report certain cases to the police.  The article is designed for consumption by the general American public as a response to the near unanimous trend among states to enact similar legislation.  Their premise involves the basic point that the law is only one instrument to address social challenges, and we should be realistic about the limits and side-effects of legislation:

[Legislation] alone can’t create kinder communities or teach children how to get along. That will take a much deeper rethinking of what schools should do for their students…

[The] danger of anti-bullying laws, which have now been passed by all but six states, is that they may subtly encourage schools to address this complicated problem quickly and superficially. Many schools are buying expensive anti-bullying curriculum packages, big glossy binders that look reassuring on the bookshelf and technically place schools closer to compliance with the new laws.

But our research on child development makes it clear that there is only one way to truly combat bullying. As an essential part of the school curriculum, we have to teach children how to be good to one another, how to cooperate, how to defend someone who is being picked on and how to stand up for what is right.

Involving the legal system makes a strong statement that a society won’t tolerate bullying. But for laws like the one in Massachusetts to succeed, they have to be matched by an educational system that teaches children not only what’s wrong, but how to do what’s right.

There have been a wide variety of responses by governments and legislatures over the past decades arising from the increased awareness of bullying and other forms of harassment and intimidation in schools.  British Columbia has chosen to advance non-legislative initiatives to help prevent and address bullying as a common phenomenon.  For example, in the late 1990s, the provincial government established the B.C. Safe Schools Initiative to deal with student safety in schools and communities.  Similarly, parent groups, like the BC Confederation of Parent Advisory Councils, have released publications intended to assist parents, students, teachers and administrators.  The Ministry of Education has posted a series of pamphlets on school safety on its website here.  (The term “bullying” is generally reserved for elementary schools and “harassment and intimidation” is reserved for high schools.)

Although legislation in this province does not mention bullying by name, there are several general provisions that are relevant, though none impose the measures apparently being used south of the border.  Many school boards have established their own internal policies for schools within their jurisdiction.  As well, consider section 11(2) of the School Act (British Columbia) (BCLaws):

If a decision [or failure to make a decision] of an employee of a board significantly affects the education, health or safety of a student, the parent of the student or the student may, within a reasonable time from the date that the parent or student was informed of the decision, appeal that decision to the board.

Similarly, The Statement of Education Policy Order (Mandate for the School System), OIC 1280/89 (Ministry of Education), is an order-in-council that sets out in broad strokes the purpose of the BC school system and outlines general policies , rights and responsibilities to advance that purpose.  For example, parents have “a primary responsibility to ensure that children are provided with the healthy and supportive environment necessary for learning”. 

Much of the literature promoted by the Ministry of Education appears to be consistent with the approach advanced by the professors in the New York Times article: teach children the importance of standing up for each other, sharing with each other and promoting a sense of community.  It remains to be seen whether the legislative approach they critique will produce the right results.

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How should school administrators respond to cyberbulling?

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There was an interesting article by Jan Hoffman over the weekend in the New York Times discussing the legal implications of cyberbulling, particularly for schools and parents.  There may be certain variations in the legal tests that apply in the United States and British Columbia but I think the article is important because it explores the sociological phenomenon of cyberbulling and how it is being treated by lawyers and judges. 
 
One issue to consider is whether cyberbulling is more likely to result in litigation than ”traditional” bullying and, if so, why that is the case. As well, cyberbullying raises the common question for schools about the limits of their jurisdiction and whether (or to what extent) schools are responsible for off-campus activities of students.
 
The article is fairly long, and I reproduce below the portion dealing with legal battles arising from cyberbulling.

Tony Orsini, the Ridgewood principal, learned about a devastating Facebook group last November, two months after it started.

“I had a 45-year-old father crying in my office,” Mr. Orsini said. “He kept asking, ‘Why would someone do this to my son?’ ”

A Facebook page had sprung up about the man’s son, who was new in town. The comments included ethnic slurs, snickers about his sexuality and an excruciating nickname. In short order, nearly 50 children piled on, many of them readily identifiable. “Kids deal with meanness all the time and many can handle it,” said Mr. Orsini, 38, a father of two children. “But it never lasts as long as it does now, online.”

The boy could not escape the nickname. At soccer and basketball games around town, opposing players he’d never met would hoot: “Oh, you’re that kid.”

The boy began missing school. He became ill. After weeks, he reluctantly told his parents.

“We don’t always get to address these problems until the damage is done,” Mr. Orsini said.

Because the comments had been made online and off-campus, Mr. Orsini believed that his ability to intervene was limited.

Rulings in a handful of related cases around the country give mixed signals.

A few families have successfully sued schools for failing to protect their children from bullies. But when the Beverly Vista School in Beverly Hills, Calif., disciplined Evan S. Cohen’s eighth-grade daughter for cyberbullying, he took on the school district.

After school one day in May 2008, Mr. Cohen’s daughter, known in court papers as J. C., videotaped friends at a cafe, egging them on as they laughed and made mean-spirited, sexual comments about another eighth-grade girl, C. C., calling her “ugly,” “spoiled,” a “brat” and a “slut.”

J. C. posted the video on YouTube. The next day, the school suspended her for two days.

“What incensed me,” said Mr. Cohen, a music industry lawyer in Los Angeles, “was that these people were going to suspend my daughter for something that happened outside of school.” On behalf of his daughter, he sued.

Last November, Judge Stephen V. Wilson of Federal District Court found that the off-campus video could be linked to the school: J. C. told perhaps 10 students about it; the humiliated C. C. and her mother showed it to school officials; educators watched it and investigated.

But the legal test, he wrote in his 57-page decision, was whether J. C.’s video had caused the school “substantial” disruption. Judge Wilson ruled in favor of the young videographer, because the disruption was only minimal: administrators dealt with the matter quietly and before lunch recess.

This legal test comes from a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, in which a school suspended students for wearing black armbands to protest the Vietnam War.

The court overturned the suspension, but crafted a balance between a school’s authority and a student’s freedom of expression. When a student’s speech interferes substantially with the school’s educational mission, a school can impose discipline.

The district had to pay J. C.’s costs and lawyers’ fees: $107,150.80.

Judge Wilson also threw in an aside that summarizes the conundrum that is adolescent development, acceptable civility and school authority.

The good intentions of the school notwithstanding, he wrote, it cannot discipline a student for speech, “simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”

The lesson Mr. Cohen hopes his daughter learns from the case is about the limits on governmental intrusion. “A girl came to school who was upset by something she saw on the Internet,” Mr. Cohen said in a telephone interview, “and these people had in their mind that they were going to do something about it. The school doesn’t have that kind of power. It’s up to the parents to discipline their child.”

He did chastise his daughter, saying, “That wasn’t a nice thing to do.”

He describes her video as “relentlessly juvenile,” but not an example of cyberbullying, which he said he did not condone. His daughter offered to remove it from YouTube. But Mr. Cohen keeps it posted, he said, “as a public service” so viewers can see “what kids get suspended for in Beverly Hills.”

The J. C. decision has ignited debate. Nancy Willard, an Oregon lawyer who consults with schools, said that the judge could have applied another, rarely cited prong of the Tinker standard: whether the student’s hurtful speech collided with “the rights of other students to be secure.”

The Supreme Court has not yet addressed online student speech. Lower-court judges in some districts have sided with schools that have disciplined students for posting threatening videos about educators from their home computers.

In two recent cases, students were suspended for posting parodies of their principals. Each case reached the Court of Appeals for the Third Circuit. But one three-judge panel sided with a school for disciplining a student whose site suggested the principal was a pedophile; another panel sided with its case’s student, whose site suggested the principal used steroids and smoked marijuana. To resolve the contradictory rulings, both cases were re-argued earlier this month before 14 judges on the Third Circuit, whose jurisdiction includes New Jersey, Delaware, Pennsylvania and the United States Virgin Islands.

Nationwide, principals have responded to students who demean others online in dramatically different ways.

In January, 28 Seattle middle school students who wrote noxious comments on Facebook about one student received suspensions. The school also held assemblies about digital citizenship.

But when the mother of a seventh-grade boy in Fairfax County, Va., who requested anonymity to protect her son’s identity, sent his principal the savage e-mail messages and Facebook jeers that six boys posted about her son, the principal wrote back that although the material was unacceptable, “From a school perspective this is outside the scope of our authority and not something we can monitor or issue consequences for.”

Many principals hesitate to act because school discipline codes or state laws do not define cyberbullying. But Bernard James, an education law scholar at Pepperdine University, said that administrators interpreted statutes too narrowly:

“Educators are empowered to maintain safe schools,” Professor James said. “The timidity of educators in this context of emerging technology is working to the advantage of bullies.”

Whether suspension is appropriate is also under discussion. Elizabeth Englander, a psychology professor at Bridgewater State College in Massachusetts and founder of the Massachusetts Aggression Reduction Center, believes that automatic discipline for cyberbullies is wrong-headed.

“We tend to think that if there’s no discipline, there’s no reaction,” she said. “But discipline should never be the only thing we consider in these cases. There are many things we can do with children first to guide and teach them about behavior and expectations.”

Tony Orsini wanted to help his middle school student who was being teased mercilessly on Facebook. But he believed he had to catch the bullies at school.

He alerted teachers. At lunch, they spotted the three ringleaders as they forced the boy from their table.

“I called them into my office,” Mr. Orsini said, “and talked to them strongly about the lunchroom incident. Then I lied. I said I heard that the cops were looking at a Facebook group they had posted.

“It came down the next day.”

He rubbed his face in his hands. “All we are doing is reacting,” he said. “We can’t seem to get ahead of the curve.”

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Small claims court as a venue for parents of bullied students

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Janet Steffenhagen reported last week on her blog Report Card that parents in Ontario have threatened to bring their individual grievances against school boards before the small claims court.  According to a school board official in Waterloo, the Ontario government should move to stem the tide of parental litigation before the floodgates open.  Reporter Greg Mercer, of  TheRecord.com, quoted John Shewchuk as saying the following:

We want to raise an alarm bell with the government . . . we think they’ve got a little bit of a problem on their hands… You can just see the herd coming over the hill. You’re going to find more people who quite frankly just don’t like the answer they got, so they’re saying ‘fine, I’m going to sue you.’ 

I think we’re going to see a whole lot more of this as people understand that you can go pay your 75 bucks and sue a school board, and you might just hit the jackpot.  There are folks out there who can get dollar signs dancing in their eyes, and think it might be an easy score.

British Columbia’s small claims court is fascinating tool established by the government to provide access to justice for non-lawyers (or those for whom it was impossible or inefficient to hire a lawyer) with relatively small amounts of money at stake in their disputes.  It is extremely user-friendly but has been subject to considerable criticism for being too favourable to debtors.  Also, it gives tremendous discretion to judges – which can be a good or bad thing, depending on your view of the judges. 

Shewchuck’s concern about “floodgates” is a compelling one: it is in nobody’s interests for anyone and everyone with a complaint about a teacher, school or school board to start a lawsuit.  And the legal system should not be exploited as a tactic to overwhelm a public institution.  But this isn’t necessarily a flaw with a culture among parents; it’s a flaw with the small claims court.  If there are trends emerging of plaintiffs starting lawsuits with no real merit, the system should weed them out before they cost the system too much money.  As well, opening the floodgates is generally a bad thing if it is unjustified.  Parents with legitimate grievances should be entitled to demand through the court system, if necessary, that school boards fulfil their obligations. If those obligations are too great, then that is a different matter.

When it comes to bullying, in particular, there is a lot to consider before advancing a lawsuit.  Getting involved in a small claims proceeding may cost a frustrated parent more than $75.  A legal approach to bullying should be sophisticated and well thought out.  Like many things, it may be worth it for parents to visit a lawyer, even briefly, to get basic legal advise before moving ahead if its clear no progress is being made dealing directly with a school or school board.

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