In December 2012, in the case Zeno v Pine Plains Cent School District, the U.S. Court of Appeals for the Second Circuit ruled that a New York district was liable under Title VI for student-on-student harassment, upholding a $1 million reduced jury verdict.
The court concluded that although the district disciplined the identified hurtful students for each reported incident, its responses were “deliberately indifferent” because they did not deter the ongoing racial harassment of a male high school student for more than three years. The legal take away from this decision is that if school administrators are aware that their response to student harassment has not effectively dissuaded the original offender or offenders, further reasonable actions to try to eliminate the hostile environment are necessary.
Interpreting “Deliberately Indifferent”
In 1999, in the case of Davis v. Monroe County Board of Education, the Supreme Court ruled that schools can be held financially liable if they are “deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s authority,” so long as the harassment is “so severe, pervasive, and objectionably offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Since that decision, which involved harassment of a fifth-grade girl in Macon, Georgia, lower federal courts have extended the same standards to harassment based on disabilities or race.
Questions of whether the school knows that harassment is taking place and whether the harasser is under the school’s authority are determined based on each situation. The deciding question in most of the subsequent cases has been in properly interpreting “deliberately indifferent.”
Over the years, districts have defended themselves, as did the Pine Plains district, which argued that it was not deliberately indifferent because it responded reasonably to each reported incident by suspending or warning the aggressors. District leaders claimed they never knew that their responses were inadequate or ineffective. As the years went by, the plaintiff reported fewer incidents, because it did not effectively stop the harm and often made the situation worse. But the negative incidents continued for three years and became increasingly more severe.
Dear Colleague Letter
In the context of administrative enforcement actions, the effectiveness of a school’s intervention in bullying was a predominant focus of a “Dear Colleague” letter issued by the U.S. Department of Education, Office for Civil Rights (OCR) on October 26, 2010, on the issue of harassment. OCR has played an important role in recent litigation, by filing briefs supporting students who suffered extensive ongoing harassment, despite school intervention when reported. The “Dear Colleague” letter focused strongly on the need for a systemic, continuing approach to address a hostile environment, using language such as:
Because the school failed to recognize that the incidents created a hostile environment, it addressed each only in isolation, and therefore failed to take prompt and effective steps reasonably calculated to end the harassment and prevent its recurrence.”
Research on School Intervention
Recent research studies document that there are serious concerns about the effectiveness of school intervention responses to bullying or harassment and the degree to which students are reporting these incidents.
For example, Catherine Bradshaw, Deputy Director of the Johns Hopkins Center for the Prevention of Youth Violence, and colleagues reported that 60 percent of middle and high school students believe the school staff makes things worse when it intervenes in bullying situations; whereas only 7 percent of school staff thought the same.
Similarly, Stan Nixon and Charisse Davis, from the Youth Voice Project, found that only 42 percent of students who were bullied at moderate to severe levels reported it to the school. The researchers also found that after reporting, the harassing situations improved only 34 percent of the time, but got worse 29 percent of the time. As the Davis court case concluded, in determining effective and non-effective methods in addressing bullying:
Students indicate the adult responses that are most helpful to them are supportive listening, encouraging advice, and checking in afterward to see if the hurtful behavior stopped. Telling students not to tattle, to ignore the situation or solve it by themselves, or say if they acted differently this would not happen were described by youth as the least helpful adult responses. Increased supervision, punishing the offender, conflict resolution, and talking about the problem sometimes made things better, but sometimes also made things worse.
The effectiveness of punishment or consequences also varied widely from school to school; it seems to me that it makes a big difference how rules and consequences are used.
Unfortunately, there is not a significant body of research on strategies to effectively intervene in student harassment situations. Further, often factors such as community attitudes that influence hostile environments are largely outside the direct control of schools. Addressing the effectiveness of bullying prevention and interventions is challenging, but clearly necessary.
Ensuring Positive School Climates
The following are our major guidelines for establishing effective K12 bullying prevention and intervention programs, and maintaining positive school climates:
Investigate reported incidents fully. Make sure you know who is engaging in what behavior and for what purposes. Find out who is playing a supportive role in the background, both for and against the harm. If the student is a member of a class that receives federal or state civil rights protection, such as for disability or sexual orientation, determine whether you are dealing with an isolated hurtful bullying or harassment incident or whether there is a hostile school environment that supports repeated hurtful incidents directed at those students.
Focus on restoration after the specific incident. The ultimate result should be the four “R’s”: resiliency for the target(s) of the harassment, remorse and remediation by the aggressor or aggressors, and restoration for the target and the school community.
Hold students who have caused harm accountable with an agreement to remedy the harm to the target and the school community, and avoid future harm. Consider a provisional disciplinary response, with the ability to remove the report from the alleged aggressor’s record after fulfilling the terms of the agreement. If a suspension is called for, initiate in-school suspensions that allow students to continue their education. Remove student cell phones to isolate them from peer contact.
Determine whether the target and the aggressor require additional social and/or emotional support to address underlying concerns that may be contributing to continuing problems.
Evaluate the effectiveness of your interventions. After every incident, touch base with the target, the target’s friends, parents and the aggressor, to determine whether the intervention was effective. Revisiting the situation is critically important, so do not wait for the bullied or harassed student to come to you. If your intervention did not stop the harm, or made things worse, the student will likely not return to tell you.
If your investigation reveals that a hostile environment may be present in your school, address this situation in a systemic manner that involves students in leadership roles.
Conduct a bullying, harassment, and school climate survey to further identify and clarify the extent of the concerns.
Establish a student advisory team that includes representatives of groups of students who are more likely to be bullied and harassed and compassionate student leaders to review the survey data and provide insights. Have this team make recommendations for improving the school climate to ensure all students are treated with kindness and respect. Have your advisory team work with the student leadership to implement and evaluate recommendations.
Reach out to community leaders to help address community attitudes that may contribute to hostile environments.
Nancy Willard is a lawyer who is director of Embrace Civility in the Digital Age (embracecivility.org), and author of bullying prevention books and programs.
Editor’s note: District Administration offers a free archived on-demand web seminar titled “5 Effective Steps to Solving the Bullying Epidemic—and the Tools to Get You There” (www.districtadministration.com/ws012413).