Tips For Schools To Avoid Being Sued For “Deliberate Indifference” Toward Acts Of Bullying

First of all, the federal court’s “deliberate indifference” standard applies to all types of bullying cases, such as:  1) verbal  – teasing, name calling, taunting, threats to cause harm, inappropriate sexual or racial comments, 2) Social or Relationship Bullying means hurting  a student’s reputation, excluding a student on purpose, telling other students not to be friends with a student, spreading rumors about a student and embarrassing the student in public.  3) physical bullying by hitting, kicking, pinching, spitting, tripping and pushing, mean and rude hand gestures and damaging another student’s property.  4) Bullying can take place on he playground, athletic field and on the bus.  5) cyber bullying can take place on the internet.  In federal court a student suing the school for damages will try to prove  “deliberate indifference” by the school was due to failures like inadequate policies and procedures, poor staff training, poor reporting procedures,  lack of supervision, ineffective  investigation procedures, poor or non-existent  follow up, the school waited too long to take remedial action and  the school did not take action to end the bullying.

The finder of fact (either a judge or a jury) must conclude that the school district’s response was CLEARLY UNREASONABLE in light of the known circumstances (meaning the facts of the case).  For example, in December 2012 a New York federal court of appeals upheld a $1 million dollar award. The court found that although the school district identified and disciplined the students involved, it did not deter ongoing racial harassment of a male high school student and the bullying  went on for three years.  The “take away tip” here is that school districts must follow up and be sure their efforts are aimed at eliminating the hostile environment no matter what type of bullying facts are involved.

In court schools will show they were NOT DELIBERATELY INDIFFERENT to all types of bullying claims because they gave student warnings, suspensions, expulsions, took them to court, transferred students, used mediation, held student awareness assemblies and did follow up.  Deciding if a school was or was not “deliberately indifferent” is a question of fact.  Here are some actions schools can take (in any type of bullying claim) to demonstrate  facts they acted reasonably under the circumstances.  Schools 1)  have a reporting procedure known to students and parents 2)  investigate the facts fully…this is very important.  3) hold students accountable who caused the incident(s) and there are consequences  4)   Focus on avoiding future incidents  5) Find out if the victim and the student accused of bullying need social or emotional support, such as counseling and etc.  6) start bullying awareness and prevention programs 7) evaluate the effectiveness of your policies and procedures 8) establish a student advisory group and involve the community, and finally 9) check with local prosecutors to see which cases should be taken to court and which ones can be handled by suspension or expulsion….the laws on bullying as a crime are not always clear.


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