Can schools be held criminally liable if they fail to protect students from bullying?
It turns out that the answer to this question isn’t easy to answer. And it really should be.
On the one hand, federal courts have ruled that schools have no constitutional duty to protect students from private actors (bullies). (see: Jane Doe vs. Covington County School District – http://www.ca5.uscourts.gov/opinions/pub/09/09-60406-CV2.wpd.pdf)
On the other hand the U.S. Department of Education’s Office for Civil Rights has just ruled that a Palo Alto CA middle school mishandled the case and while they can’t be held criminally liable, they should have thoroughly investigated allegations and taken disciplinary action against the bullies. (see: http://www.paloaltoonline.com/news/show_story.php?id=28540)
So where does this leave schools?
Fortunately, most schools are run by well-meaning and caring individuals. Most don’t need the threat of criminal liability to do their jobs. However, there are clearly districts and/or schools that are failing at this for a variety of reasons. And these schools do need legal coercion to change. Trust me, some of the horror stories of what happens to kids that the schools aren’t liable for will terrify you – check out: http://www.schoolbusters.org/ for a sampling. but let’s just say that a school gives a 9 year old girl over to a sexual predator – someone not authorized to take the girl out of school and they do this on 6 separate occasions and the school isn’t legally liable for not keeping this little girl safe even though they violated their own safety rules regarding who can check out a child by not validating identity or double checking to see if this person was allowed to take a child in the first place.
Anyway – it’s clear that legally, schools aren’t required to keep your child safe. But, that if they don’t, they could be found in violation of a child’s civil rights, especially if that child is in a protected class, and since most victims fall into a protected class, well, there you go.
Two things need to happen.
1) We need to find a way to make sure that schools are held liable for protecting children in their care. Government agencies should not have protection that private day care centers do not.
2) Schools need to do a much better job of protecting kids because the dissenting opinion in the Jane Doe vs. Covington County case is most likely going to eventually become the prevailing opinion at some point.
What can parents do to keep their children safe?
In the meantime, what should parents do to make sure their kids are protected? Do your best to educate yourself on what the school can and should be doing to protect your child. Don’t allow things to drag out or become chronic. Make sure that you take safety measures to protect your child. Don’t give up. Protect your child but continue to agitate for change because change won’t occur until or unless we parents insist upon it. Because even if a particular school administrator refuses to do what they should be doing to protect your child, school boards are elected representatives. If they fail to make sure that their administrators are doing their job, they should be fired and replaced with people who will make sure that rules are enforced.
I want to end this post with an essay from Lorna Blumen on Why Stronger Anti-Bullying Laws aren’t the answer (http://bullyingepidemic.com/anti-bullying-laws-arent-the-answer/) She has a good point at the end.
“Bullying prevention is the everyday behavior we accept or ignore, the choices individuals (not just officials) make every day in our homes, schools, and communities. If we don’t step in until a child is on the brink of suicide, it is nearly impossible to stop that suicide from occurring.”
Bullying prevention can’t just be about making schools accountable – though that is obviously very important. It also has to educate and empower victims. It has to educate and empower parents. We all have to focus on doing what it takes to get the bullying to stop and that means being smart and NOT waiting for someone else to take responsibility to make that happen. Bullies can be stopped, but it takes a consistent effort by everyone involved. No one person can get a bully to stop. We all have to do out part.
If you need help with this – check out my free course – how to talk to your child’s school about bullying.