1. Bullying and Harassment Introduction

• Determining Whether Your Child Has Been a Victim of Bullying or Harassment 
• Bullying Defined
• Sexual Harassment Defined
• Sexual-Orientation Based Harassment Defined
• Race Based Harassment Defined

    2.  Your Child’s Rights/Remedies If They Become a Victim
         of Bullying or Harassment

    3.  External Links

Bullying and Harassment Introduction

Bullying and harassment have become increasingly serious problems in our schools.  This growing epidemic can have serious consequence for the bullies and their victims.  Therefore, responsible educators should create anti-bullying and anti-harassment policies and practices to ensure that schools do not become a hostile environment. Unfortunately, not all schools are successful in dealing with this problem.  Therefore, students and parents must also understand their children’s rights in regard to bullying and harassment based on sex, race, or sexual-orientation.

Determining Whether Your Child Has Been a Victim of Bullying or Harassment

In many statutes and policies, “harassment” is often used synonymously with “bullying.”   However, “bullying” based on race, gender, or sexual orientation is generally referred to as harassment and is specifically prohibited by federal law.  For instance, it is termed sexual harassment or racial harassment.  In contrast, bullying not based on race, gender, or sexual orientation is the general form of bullying, the policing of which is often left up to local school authorities. 

 --Bullying Defined:

Bullying can take many forms.  Generally, bullying is thought of in two categories, direct bullying and indirect bullying.  The most common is direct bullying.  Direct bullying occurs “by means of threatening or inflicting physical harm,” such as using threats to steal lunch money or simply shoving a student in the hallway to humiliate or intimidate him.  On the other hand, indirect bullying involves no actual physical contact but occurs when a student attempts to exclude another student from educational or social opportunities or spreads rumors about a student to demean him among his peers.  Further examples of bullying include:

Schools should provide an environment free from all types of bullying.   However, it is important to remember that not all forms of unfriendly behavior from other students is considered bullying.  If another student is calling your child names, refusing to be friends with them, or having a nasty attitude towards, but not doing these things in front of others with the goal of embarrassing or demeaning your child, then this is usually not considered bullying.  Rather, it may simply represent a difficult relationship between children.   

 -- Sexual Harassment Defined:

Overall, sexual harassment is any unwelcome behavior of a sexual nature that makes a student, boy or girl, feel uncomfortable, fearful or powerless, and interferes with his or her schoolwork.  Sexual harassment is prohibited regardless of the sex of the harasser and their victim, i.e. even if the harasser and the person being harassed are members of the same sex.  Specifically, sexual harassment can occur in two forms: quid pro quo or hostile environment.  Quid pro quo (“this for that”) harassment occurs when a school employee directly makes unwanted sexual advances towards a student or makes them believe their grade, academic future, or participation in a sport or activity, depends on participation in such conduct.  On the other hand, hostile environment harassment occurs “when unwelcome conduct of a sexual nature is so severe, persistent, or pervasive that it affects a student’s ability to participate in or benefit from an education program or activity, or creates an intimidating, threatening or abusive educational environment.”  A hostile environment can be created by a school employee or by student-on-student harassment.  Therefore, schools are responsible for adequately responding to known student-on-student, as well as teacher-on-student, sexual harassment and can be held liable when they fail to do so.

All sexual behavior by a school employee toward a student is inappropriate, but not all behavior of a sexual nature between students is sexual harassment. The key determinant in determining whether conduct of a sexual nature between students is harassment is whether it is “unwelcome.”  According to the Department of Education “conduct of a sexual nature is unwelcome when the student being harassed did not request or invite the conduct and regarded it as offensive or undesirable.”  For some behavior it is obvious that it is unwanted.  However, sometimes the harasser does not know that their sexual behavior is unwanted.  Therefore, it is important for a student to make it clear that the behavior is unwanted and makes them feel uncomfortable.  Examples of sexual harassment can include:

 -- Sexual-Orientation Based Harassment Defined:

Sexual-orientation based harassment occurs when a student is targeted or harassed because of their actual or perceived sexual-orientation.  Currently, federal law does not specifically prohibit discrimination on the basis of sexual-orientation in schools.  However, sexual harassment that is directed at gay or lesbian students is still prohibited in many instances.  As long as the discrimination of the student is because of “sex” or involves “sex stereotyping” the conduct may constitute sexual harassment.  For example, it is not considered sexual harassment prohibited by federal law when students heckle another student with comments based on the student’s sexual-orientation, such as “gay students are not welcome at this table.”  On the other hand, if a student or students targeted a gay or lesbian student for physical sexual advances, this could create a sexually hostile environment that is prohibited by federal law.   Moreover, while federal law does not specifically prohibit all forms of sexual orientation discrimination, some state and local laws do. 

 -- Race Based Harassment Defined:

Race based or racial harassment occurs when discrimination of a student is based on their race, color, or national origin.  Prohibited race based, or racial harassment, can occur in two forms.  First, racial harassment occurs when a school employee treats a student differently or discriminates against them because of their race, color or national origin.  Second, prohibited racial harassment occurs when a school condones, tolerates, or allows a racially hostile environment it knows about to continue.   A racially hostile environment can be created by “oral, written, graphic or physical conduct related to an individual’s race, color, or national origin that is sufficiently severe, persistent or pervasive so as to interfere with or limit the ability of an individual to participate in or benefit from the [school’s] programs or activities.”  Examples of racial harassment include:

However, in general it is not considered racial harassment to assign books or materials that deal with racial issues or use racial epithets.   However, student-on-student or employee-on-student harassment grows out of these materials, the school must adequately respond and stop the harassment or it can be held liable for its failure to do so.

Your Child’s Rights/Remedies If They Become a Victim of Bullying or Harassment:

    -- Bullying Victims Rights/Remedies:

Unfortunately, there is no federal law that prohibits bullying or requires schools to adequately address bullying.  However, most states have statutes that require schools to adopt policies ensuring an anti-bullying atmosphere at school.  Therefore, a student, or parent of a student, who is a victim of bullying should consult the school’s polices for the measures that should be taken to deal with the conduct.  However, regardless of a school’s policy, bullying should always be reported immediately.  If a school fails to address the bullying after receiving the report, a student may have a right to bring a legal claim against the school, under federal and/or state law.  Thus, if your child is a victim of bullying, notify the appropriate school officials immediately and make sure they take the appropriate measures.  If your school does not have anti-bullying policies in place, please consult the links located below for ways to encourage and help your school implement successful anti-bullying policies.  You might also consider filing a complaint with the United States Department of Education if the school does not have an anti-bullying policy or fails to follow it.

    -- Harassment Victim’s Rights/Remedies:

Unlike general bullying, which is usually policed at the local level, federal law specifically prohibits racial and sexual harassment.  Specifically, Title IX of the Education Amendments Act of 1972 prohibits sex-based discrimination, and Title VI of the Civil Rights Act of 1964 prohibits discrimination based on a student's race, color or national origin in schools receiving federal funds. These acts create an affirmative obligation for schools receiving federal funds to prevent discrimination within their education programs.  When schools fail to honor this obligation, students have a cause of action against the school.

As a student in a public school, your child has a right to receive an education in a harassment free environment.  If your child has been a victim of harassment, you should immediately report the conduct to the appropriate school official.  Additionally, you should consult your individual schools policies to find the proper procedure for filing grievances and their process for dealing with the incidents.  Furthermore, you can file a complaint with the Department of Education Office for Civil Rights.  The Office for Civil Rights is responsible for enforcing Title IX of the Education Amendments Act and Title VI of the Civil Rights Acts of 1964.  Please see below for a link to their website which has instructions on how to file a complaint.  However, students may also seek more formal legal remedies.  Students have a right to sue school districts that violate either of these Acts. 

Courts will hold a school district liable when it “is aware of a sexually or racially hostile environment and condones, tolerates or allows that environment to exist.”  This means that:

A student must be able to prove each of these elements in order to succeed on their claim against the school.  As discussed below, each element is highly fact specific.

    (1) Prohibited Harassment

There is no bright line that signifies when sexual or race based harassment reaches the level of being so “severe, pervasive or objectively offensive that it deprives the student of access to the schools educational opportunities.”  However, courts have made it clear that simple acts of teasing or name-calling do not rise to this level.  If your child is exposed to actual offensive physical touching, his or her grades have gone down, or he or she has experienced emotional distress due to the conduct, this is often an indicator that the conduct he or she is exposed to is severe, pervasive or objectively offensive. 

    (2) Notice of Harassment

As noted above, it is extremely important that any incident of harassment is reported to school officials immediately.  Actual notification to the school will be enough to satisfy the second element that requires the school to have actual knowledge.  However, it is important that this notice be specific enough to notify the school that the harassment is of a sexual or racially offensive nature and it exceeds mere teasing.   However, if a teacher witnesses the harassment occurring, this can be enough for the school to have “actual knowledge.”  

    (3) Deliberate Indifference

Finally, to prove that the school is or was “deliberately indifferent” to the harassment, you must be able to show that the school’s “response to the harassment or lack thereof is [or was] unreasonable in light of the known circumstances.”  This element is the most difficult to prove and is highly fact specific.  The courts do not mandate a specific response, but a school cannot simply turn a “blind eye” and do nothing when it finds out about the misconduct.  Thus, schools are not required to take drastic action to punish the harasser or eliminate all possibility of it ever occurring again, but if the school’s initial remedial action does not stop the harassment, it must take additional subsequent action until the behavior does stop.  In short, although a school has discretion as to how to remedy or stop the harassment, it does not have discretion to continuing using measures that prove ineffective in stopping the harassment.  In such an instance, a school should use a progressive form of discipline on the harasser or change its method of addressing the harassment.  Thus, depending on whether the harassment stops, adequate responses can range from:

Ultimately, courts will consider all the known circumstances in determining whether any of these responses was appropriate in a given case. 

External Links: