By Kevin Lungwitz
All school personnel need to be aware of the basics of student-to-student harm. School districts are required by law to investigate and take appropriate disciplinary action. Failure to act on a known or suspected case of student bullying, harassment or dating violence is not just detrimental to the victim, but might also subject the school district or its employees to liability.
What is Bullying?
In 2017, the legislature beefed up the definition of bullying found in Texas Education Code §37.0832, also found in school policy FFI-Legal. In sum, bullying is a single significant act or a pattern of acts directed at a student that exploits a power imbalance through written, verbal, physical or electronic means that:
- has or will have the effect of physically harming the student or the student’s property or placing the student in fear of such harm;
- is sufficiently severe, persistent or pervasive enough it creates an intimidating, threatening or abusive educational environment for the student;
- materially and substantially disrupts the educational process or the orderly operation of a classroom or school; or
- infringes on the rights of the victim at school.
Bullying may include hazing, threats, taunting, teasing, confinement, assault, demands for money, destruction of property, theft of valued possessions, name-calling, rumor spreading or ostracism.
What is Cyberbullying?
Bullying includes cyberbullying. The same education code and policy provision says cyberbullying is, in sum, bullying done through the use of any electronic communication device or service (e.g. phone, computer, camera, email, texting, social media, websites, the Internet, etc.).
How Wide is Your Bullying Jurisdiction?
Obviously, if the bullying occurs on or is delivered to school property or at any school event (whether on or off school property), the school has jurisdiction to investigate and discipline the offender. This includes school busses, whether publicly or privately owned. The less obvious issue is one that is more pervasive today. What about non-school related cyberbullying, that occurs off school property, not on a school bus, and not at a school event? (Think, for example, social media bullying, bullying by text, email, meme or website that does not occur at school or at a school event.) Is cyberbullying any of the school district’s business when it happens away from any school-related activity? According to the 2017 state law amendments, the answer is yes. The school district’s jurisdiction has been extended to act in non-school related situations of cyberbullying that:
- interfere with a student’s educational opportunities; or
- substantially disrupt the orderly operation of a classroom, school, or school-sponsored or school-related activity.1
This not only expands the school’s authority to address non-school related bullying in these instances, action is arguably required. Caveat: Despite this state law, this can be tricky. Consult your supervisor and the school lawyer to make sure you do not run afoul of the possible free speech rights of the accused.
How is Bullying Similar to Harassment? Dating Violence?
Harassment is a subset of bullying that is perpetrated because of the victim’s race, ethnicity, religion, sex, gender, national origin, disability or age. Similar to bullying, harassment is actionable if it is so severe, persistent or pervasive that it:
- affects the victim’s ability to participate in or benefit from educational programs, activities or opportunities; or
- substantially or unreasonably interferes with the victim’s academic performance.
Another form of student-to-student abuse districts must navigate is dating violence which is the intentional use of physical, sexual, verbal or emotional abuse by a person to harm, threaten, intimidate or control another person in a dating relationship.2 Examples might include physical or sexual assaults; name-calling; put-downs; or threats directed at the student, the student’s family members, or members of the student’s household. Additional examples may include destroying property belonging to the student, threatening to commit suicide or homicide if the student ends the relationship, attempting to isolate the student from friends and family, stalking, threatening a student’s spouse or current dating partner, or encouraging others to engage in these behaviors.3
In a Venn diagram, bullying, harassment and dating violence would almost completely overlap. Each is a form of abuse driven by a desire to control the victim based on a power imbalance. Each must be addressed by a school district.
What is Your Response?
- Education: Train and educate staff (including bus drivers) and educate students about bullying, harassment and dating violence. Staff should be trained to immediately notify administration if they receive a report or witness student-to-student harm so that a proper, documented investigation can be done.
- Monitoring: Provide extra monitoring of suspected locations where bullying might likely occur.
- Provide opportunities to report: Your school district must post a procedure on the district’s website for reporting bullying.4 Having multiple portals for reporting on your campus, including anonymous reporting and electronic reporting, and educating your students and parents about these portals is advised.5
- Safety: Upon receiving a report, ensure the safety of all involved.
- Make other reports? Consider whether you need to alert law enforcement immediately or CPS within 48 hours.
- Parent/guardian notifications: Notify the parent or guardian of the alleged victim by at least the third business day of the report. Notify the parent or guardian of the accused within a reasonable amount of time.6
- Promptly investigate: If you are not sure whether you will be the one to investigate or how to investigate, ask for assistance. Carefully read and follow your school policies FFH (local) and FFI (local) for guidance. If you have no district support, hold prompt, separate, confidential interviews with the alleged victim and accused, and other witnesses, and consider other relevant evidence. Keep a record.
- Conclude and assess corrective action: Determine if bullying, harassment or dating violence occurred. If so, administer corrective action in accordance with the Code of Conduct. Corrective action may include a training program for those involved in the complaint, a comprehensive education program for the school community, counseling to the victim and the perpetrator, follow-up inquiries to determine if any new incidents or if retaliation has occurred, involving parents and students in efforts to identify problems and improve the school climate, increasing staff monitoring of areas where prohibited conduct has occurred, and reaffirming the district’s policy against discrimination and harassment. Consider using a “stay away” agreement, which is like a school district-enforced restraining order.7 Note: A student who is a victim of bullying and who used reasonable self-defense in response to the bullying shall not be subject to disciplinary action.
Student-on-student bullying, cyberbullying, harassment, dating violence or other harm is rarely actionable in court against educators who use common sense, take allegations seriously, promptly and reasonably notify parents, and conduct a reasonable investigation.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1Tex. Educ. Code §37.0832 (a-1)(3). Also see school policy FFI (legal)
2Tex. Educ. Code §37.0831 (a)(1)
3Consult your school policy FFH (local)
4Tex. Educ. Code §37.0832
5Id.
6Id.
7As an example, Google Austin ISD policy FFH (Exhibit).
TEPSA News, March/April 2019, Vol 76, No 2
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