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Where to Begin and Where Does It End?

By: Benjamin N. Neece, Attorney

               Bullying is not a new or novel occurrence; however, the effects bullying may have come as a surprise to many.  Advancements in technology and the associated effects in society have created many new challenges in combating bullying, especially in schools.  Whereas before, a child who was bullied at school was able to achieve some relief upon the bell ringing and returning home- an escape was possible. Today cyber bullying creates a new outlet for tormentors to attack their victims, often anonymously, anytime day or night in front of a limitless audience. A dangerous problem is evolving into an uncontrollable one. So where do we look for help? A recent trend takes the position that bullying is a legal issue that should be confronted in a court of law, but should it?

Gabriel Taye, a young boy lost in the worst way possible, where bullying is believed to have played a major role. His tragic story raises an interesting question as to what role schools play in policing and monitoring bullying, and whether or not they should be held liable when the unthinkable happens.  Children today are smarter and more resourceful than ever; this is especially true with the introduction to electronics and technology at very young ages.  Bullying can be as obvious as physical abuse and as inconspicuous as verbal harassment via social media or messaging apps.  So how does the Court system come into play in enumerating the responsibility and liability of schools when it comes to bullying?                              A 1999 Supreme Court ruling requires first that there is “knowledge of harassment” and a subsequent “failure to do something” before considering finding schools liable. Known as the “deliberate indifference” standard, it establishes a high bar for those seeking to hold schools legally liable for bullying.  The standard was further defined in 2016 where the 6th U.S. Circuit Court of Appeals established that “school administrators respond to known peer harassment in a manner that is not ‘clearly unreasonable in light of the known circumstances.’” I interpret this to mean a situation must exist where bullying must be known (either directly or indirectly), and in that circumstance school officials are expected to take action, but that action only need not be “clearly unreasonable.”  Essentially, the Court is saying, “you can’t ignore this type of behavior and these situations, but we are going to protect you by granting you broad authority in determining the proper course of correctional action.”

I believe schools have a duty to protect students while they are within their walls and under their supervision. Parents should have a reasonable expectation that their children will be safe while at school and that safety should extend to not only physical safety, but also mental and emotional safety as well. If a bullying situation has become apparent to school officials, affirmative action should be taken to mitigate the problem within the confines of the school and the hours the children are there.  If there is a volatile situation in a classroom, separate the children as much as possible throughout the day.  The problem with this is that bullying is a problem that originates and persists beyond school walls. Further action should be taken in informing the parents of the children involved.  Parents must be informed of what is going on at school so they know the right course of action that must be taken at home.  In an ideal world, these types of issues would be identified and resolved as quickly as possible, resulting in the least amount of potential harm to very vulnerable and susceptible children.  While ultimately I believe schools have some duty to help prevent bullying and minimize the potential instances and effects, they are not ultimately responsible for what happens to the children outside of their walls and should therefore not be held liable for things outside of their control.