Presentation on Law of Bullying for CCA


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September 30, 2010

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Presentation on Law of Bullying for CCA

  1. 1. The Law to Related to Bullying of Students Perspective from a Parent Attorney Center for Children's Advocacy Training 9/29/10 Marisa Mascolo Klebanoff & Alfano, PC West Hartford & Fairfield, CT
  2. 2. Legal Rights & Entitlements Impacting Students <ul><li>Right to a safe school environment </li></ul><ul><li>Education as a property interest to which students are entitled under state constitution </li></ul><ul><li>Fundamental rights </li></ul><ul><ul><li>Freedom of speech – limited in school setting by what would constitute substantial and material disruption, more limited if it speech can be considered “school sponsored” </li></ul></ul><ul><ul><li>Privacy – limited in school setting by right to search balanced with need to maintain safe school environment, reasonable privacy interest when it comes to search of the person, no reasonable privacy interest in lockers or desks </li></ul></ul><ul><li>Right not to be deprived of school for punitive or disciplinary purposes without notice and opportunity to be heard </li></ul><ul><ul><li>Deprivation occurs when this deprivation equals 10 days or more – 10 plus day suspension or expulsion </li></ul></ul>
  3. 3. Legal Rights & Entitlements Impacting Students cont'd <ul><li>Right to privacy in educational records (Family Educational Rights to Privacy Act) (FERPA) </li></ul><ul><li>Special classes of students: </li></ul><ul><ul><li>Students with disabilities are entitled to a free and appropriate education (FAPE) under the Individuals with Disabilities in Education Act (IDEA) and Section 504 of the Rehabilitation Act </li></ul></ul><ul><ul><ul><li>IDEA: provides specialized instruction and related services to students with a disability who are identified based on one of thirteen eligibility categories (including emotional disturbance) </li></ul></ul></ul><ul><ul><ul><li>504: prevents discrimination against students with disabilities and provides accomodations and in some cases, related services to students in with a disability that impacts a major life activity (walking, hearing, seeing, learning) </li></ul></ul></ul><ul><ul><ul><li>Important Fact: As per CSDE, 30-50 % of all reported cases of bullying in CT involve students with disabilities </li></ul></ul></ul>
  4. 4. Legal Framework for Bullying in CT <ul><li>Defined by state statute, CGS Sec. 10-222d </li></ul><ul><ul><li>Boards of education are required to take action to prevent it, control it and correct it </li></ul></ul><ul><ul><li>Boards of education are responsible to provide a “safe school setting” per CGS Sec. 10-220(a) </li></ul></ul><ul><li>May lead to valid common law tort claims (though no torts claims have resulted in an award of damages threat of litigation exists) </li></ul><ul><ul><li>E.g. directed against school officials in negligence </li></ul></ul><ul><li>Next step- Criminal prosecution possible for bullies? (Massachusetts prosecuting bullies of Phoebe Prince) </li></ul>
  5. 5. <ul><li>Sec. 10-220. Duties of boards of education . (a) Each local or regional board of education shall maintain good public elementary and secondary schools, implement the educational interests of the state as defined in section 10-4a and provide such other educational activities as in its judgment will best serve the interests of the school district; provided any board of education may secure such opportunities in another school district in accordance with provisions of the general statutes and shall give all the children of the school district as nearly equal advantages as may be practicable; shall provide an appropriate learning environment for its students which includes (1) adequate instructional books, supplies, materials, equipment, staffing, facilities and technology, (2) equitable allocation of resources among its schools, (3) proper maintenance of facilities, and (4) a safe school setting . . . </li></ul>CT law mandates a safe school environment
  6. 6. Connecticut bullying statute details responsibilities of BOEs <ul><li>Sec. 10-222d. Policy on bullying behavior . Each local and regional board of education shall develop and implement a policy to address the existence of bullying in its schools. Such policy shall: (1) Enable students to anonymously report acts of bullying to teachers and school administrators and require students to be notified annually of the process by which they may make such reports, (2) enable the parents or guardians of students to file written reports of suspected bullying, (3) require teachers and other school staff who witness acts of bullying or receive student reports of bullying to notify school administrators in writing, (4) require school administrators to investigate any written reports made under this section and to review any anonymous reports, except that no disciplinary action shall be taken solely on the basis of an anonymous report, (5) include a prevention and intervention strategy, as defined by section 10-222g, for school staff to deal with bullying, (6) provide for the inclusion of language in student codes of conduct concerning bullying, (7) require each school to notify the parents or guardians of students who commit any verified acts of bullying and the parents or guardians of students against whom such acts were directed, and invite them to attend at least one meeting, (8) require each school to maintain a list of the number of verified acts of bullying in such school and make such list available for public inspection, and, within available appropriations, report such number to the Department of Education, annually and in such manner as prescribed by the Commissioner of Education, (9) direct the development of case-by-case interventions for addressing repeated incidents of bullying against a single individual or recurrently perpetrated bullying incidents by the same individual that may include both counseling and discipline, and (10) identify the appropriate school personnel, which may include, but shall not be limited to, pupil services personnel, responsible for taking a bullying report and investigating the complaint. The notification required pursuant to subdivision (7) of this section shall include a description of the response of school staff to such acts and any consequences that may result from the commission of further acts of bullying. </li></ul>
  7. 7. Connecticut statute defines “bullying” <ul><li>Sec. 10-222d. Policy on bullying behavior cont'd For purposes of this section, &quot;bullying&quot; means any overt acts by a student or a group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school-sponsored activity or on a school bus, which acts are committed more than once against any student during the school year. Such policies may include provisions addressing bullying outside of the school setting if it has a direct and negative impact on a student's academic performance or safety in school. Not later than February 1, 2009, each local and regional board of education shall submit the policy developed pursuant to this section to the Department of Education. Not later than July 1, 2009, each local or regional board of education shall ensure that the policy is included in the school district's publication of the rules, procedures and standards of conduct for schools and in all student State the desired goa l </li></ul>
  8. 8. Implications & Challenges created by the CT law <ul><li>Schools must create anti-bullying policies and provide notice of the policy to students & parents </li></ul><ul><ul><li>However, the buck often stops with the policy </li></ul></ul><ul><li>Schools must provide staff training on bullying </li></ul><ul><li>“ Anonymous” reports cannot lead to discipline </li></ul><ul><li>Only “verified” acts mandate follow up </li></ul><ul><li>The law as written creates conflicts with FERPA and therein reporting complications </li></ul><ul><li>Statute held not to create a private right of action </li></ul>
  9. 9. What does this all mean for student advocate? <ul><li>Provide notice of alleged bullying and do so in writing to the school administrator. </li></ul><ul><ul><li>Be as specific as possible </li></ul></ul><ul><ul><li>If you do not get the appropriate response, consider bringing the matter to the superintendent's attention </li></ul></ul><ul><ul><li>An investigation should be conducted as a result </li></ul></ul><ul><ul><li>If the allegations are 'unverified' or verified you are still entitled to a report if one exists </li></ul></ul><ul><li>Request a meeting and suggest specific supports to protect the child </li></ul><ul><li>Put your requests/reports in writing, writing, writing! (did I say that enough?) </li></ul>
  10. 10. Overview of Bullying Related Caselaw: Federal <ul><li>Bungert v. Shelton , District of Connecticut, 2005 </li></ul><ul><ul><li>Dismissed federal 1983 claim of Student who was sexually harrassed by other students. Held her substantive due process must fail because facts alleged suggested negligence at best, and did not the shock the conscience standard required </li></ul></ul><ul><li>Scruggs v. Meriden , District of Connecticut, 2007 </li></ul><ul><ul><li>Student with learning disability, ADHD, hygiene issues & a history of missing school was being physically bullied & as a result committed suicide </li></ul></ul><ul><ul><li>Found exception to IDEA exhaustion requirement since hearing officer could not provide relevant relief; also found potential for denial of FAPE </li></ul></ul><ul><ul><li>Found that bullying of Daniel did not substantiate a common law negligence claim for failure to meet identifiable person subject to immiment harm exception to governmental immunity </li></ul></ul><ul><ul><li>Found that substantive due process claim did not rise to necessary level of deliberate indifference </li></ul></ul><ul><ul><li>Found that failure to train/supervise and discrimination claims did not meet the deliberate indifference standard </li></ul></ul>
  11. 11. Overview of Bullying Related Caselaw: State <ul><li>Santoro v. Hamden , Superior Court at New Haven (2006) </li></ul><ul><ul><li>Student allegedly bullied in school. Court holds that bullying statute does not provide statutory exception to sovereign immunity and dismissings claim based on failure of school employees to follow policy. </li></ul></ul><ul><li>Dornfried v. Berlin, Superior Court at New Britain (2008) </li></ul><ul><ul><li>Student allegedly bullied as a part of football program. Held that identifiable person subject to imminent harm exception does not extend to student particiation in after school 'voluntary' program, dismissing negligence claims. Found bullying statute does not create private right of action. </li></ul></ul>
  12. 12. Davis : Supreme Court Decision providing useful instruction <ul><li>Davis v. Monroe County Board of Education , 526 U.S. 629 (1999) </li></ul><ul><ul><li>5 th grade student was incessantly, overtly, sexually harassed over an extended period of time. Student's parent brought this to the attention of the School District yet they failed to take any action. District found liable in damages. </li></ul></ul><ul><ul><li>Established 5 part test: </li></ul></ul><ul><ul><ul><li>Student is student with disability / student subject to actionable discrimination </li></ul></ul></ul><ul><ul><ul><li>Student was harassed on account of the above </li></ul></ul></ul><ul><ul><ul><li>Harassment was pervasive enough to alter the student's educational environment </li></ul></ul></ul><ul><ul><ul><li>School knew of the harassment </li></ul></ul></ul><ul><ul><ul><li>School was deliberately indifferent </li></ul></ul></ul>
  13. 13. Challenges & Strategies Related to Litigation <ul><li>Need to look beyond bullying statute to identify claims against school officials </li></ul><ul><li>For state law based negligence/tort claims, need to get around governmental immunity for school officials </li></ul><ul><ul><li>Identifiable person subject to imminent harm exception to immunity for discretionary acts – need to show harm is limited in scope and duration </li></ul></ul><ul><li>For due process claims, need to establish propery interest in education and demonstrate how there has been a violation </li></ul><ul><li>If possible, demonstrate that the Student is a part of protected class/subject to discrimination – Title IV sexual harrassment, IDEA, 504 – as this creates much more leverage </li></ul>
  14. 14. Food for thought/Examples <ul><li>Student with hygiene issue being call “SallyPoo” by peers in hallways, lunchroom, gym and science class (3 different case scenarios) </li></ul><ul><li>1) Student already has an IEP and is identified as having autism </li></ul><ul><li>2) Student does not have an IEP but has been increasingly withdrawn, has made suicidal comments and has been missing a lot of school because does not feel safe there </li></ul><ul><li>3) Student does not have a disability, but has not been taught proper self care by her parent. </li></ul>