Bullying at School: Who is Liable?

A New Jersey teenager identified only as "V.B." in court documents claimed he was bullied from fourth grade through eleventh grade on the basis of his weight and perceived sexual orientation. Classmates regularly taunted him by calling him "chubby" and "fag," while also hitting him, throwing food on his clothing, and pulling his pants down to expose his underwear. By the eighth grade, V.B. became anorexic and was hospitalized for the condition two years later. A civil complaint filed against the school district by V.B. and his mother claims the school failed to take appropriate action to protect him.

But how much did school administrators really know about these abusive acts or their impact on V.B., and could they have prevented it? And, more to the point, who is liable for the abuse this young man suffered? This is not an easy question to answer, but the following information provides a general overview of how civil liability is established in cases of school bullying and how this relates to harassment.

Bullying vs. Harassment

The term bullying generally refers to verbal, physical, or other acts committed with the intent to harass, intimidate, or cause harm to another individual. While bullying in the workplace can also give rise to legal action, it is typically discussed within the context of schools and may be defined by a school's anti-bullying policy. Many state laws also provide definitions. An Illinois statute, for instance, defines bullying as "any severe or pervasive act" that could cause fear of harm, a detrimental physical or mental health effect, or interference with the victim's academic performance or extracurricular activities.

Harassment, meanwhile, has a specific meaning within federal anti-discrimination law. When an act of bullying is committed on the basis of someone's actual or perceived gender, race, national origin, or some other statutorily protected characteristic, it is a violation of federal education discrimination law (Title IX of the Civil Rights Act of 1964). This is an important distinction that often determines whether a school is held liable. It's also important to stress that LGBTQ students are not specifically protected from harassment by federal law, although a federal appeals court ruled in April 2017 that LGBTQ employees are in fact covered by the Civil Rights Act.

Liability for Bullying Under Title IX of the Civil Rights Act

In 1999, the U.S. Supreme Court ruled that when school officials act with "deliberate indifference" to known acts of student-on-student harassment that is "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity," they may be held liable. The court set up test to determine public school liability for acts of bullying that also are considered "harassment" under federal law:

1. Student is a member of statutorily protected class (gender, race, disability, etc.);
2. Harassment is based upon the protected class;
3. Harassment is severe, pervasive, and objectively offensive;
4. At least one school official with authority to act has actual knowledge of the harassment; and
5. School is deliberately indifferent to the harassment.

When an act of bullying/harassment meets these criteria, it's considered a violation of the victim's constitutional rights.

Liability for Bullying Not Considered Harassment Under Federal Law

Lawsuits for acts of bullying not considered harassment (typically in cases where the victim is not a member of a protected class) often face an uphill battle. Many but not all jurisdictions recognize school officials as having a duty to provide students with a safe environment conducive to education. This can give rise to liability where plaintiffs are able to prove that school officials were negligent in their custodial duty to the victim, but proving negligence of school officials is difficult.

In jurisdictions that do not recognize a public school's custodial duty to the students, there is no constitutional duty imposed on the state to protect students. In such jurisdictions, liability arises only in cases where the school actively enters into a custodial relationship with the students or where it either creates or exacerbates the risks of bullying.

In these cases, the plaintiff would pursue a "Section 1983" claim, which consists of the following elements:

1. A relationship existed between the school and the student;
2. The harm to the student was ultimately foreseeable and fairly direct;
3. The school willfully disregarded the student’s safety;
4. The school used its authority to create an opportunity that otherwise would not have existed for injury to occur.

Liability as a Violation of Statutory Duty

All U.S. states have adopted antibullying legislation, beginning with Georgia in 1999, much of it requiring public school districts to draft official antibullying policies. Such a policy typically defines the act of bullying, sets guidelines for how to report violations of the policy, and establishes penalties and procedures. Some state antibullying laws include sexual orientation or other particular classifications not necessarily found in broader anti-discrimination laws.

Keep in mind, however, that state laws which merely require school districts to adopt antibullying policies may not authorize lawsuits against the school district. And in most cases, school officials have immunity from civil liability for adequately reporting instances of bullying.

Liability of Bullies and Their Parents

In some cases, a minor child who bullies another child may be held liable for their actions, typically through their parents or guardians. Under Pennsylvania law, for example, the parents of a minor who is found guilty of injuring another individual may be held strictly liable for the injuries. This liability applies regardless of how the injury occurred. With respect to bullying, however, parents may be found negligent if they knew their child was a bully but failed to take steps to intervene.

As you can see, determining liability for acts of bullying and/or harassment is no simple task and varies by jurisdiction and the particular facts of each case.

Get Legal Help Determining Who is Liable for a Bullying Claim

The last thing a parent wants to learn is that their child is the target of persistent acts of bullying, which can lead to severe depression and harm to themselves or others. It is a serious matter that sometimes requires legal action. If you need help sorting it out, consider contacting an education law attorney near you.