Federal judge on bullying & schools’ responsibility

By Anne Collier

“A federal judge has ordered a hearing to determine if a 12-year-old girl with learning disabilities was deprived of ‘a free and appropriate education’ by the constant bullying she allegedly endured at a Manhattan public school,” the New York Law Journal reports (I’m sorry I can’t link you directly – subscription required). Eastern District Judge Jack B. Weinstein wrote in L.K. v. New York City Department of Education that, if bullying of a student is so “sufficiently severe, persistent, or pervasive that it creates a hostile environment” and a school does nothing to address it, the student is “deprived of substantial educational opportunities…. These duties of a school [prevention, investigation, and “prompt and appropriate action”] exist even if the misconduct is covered by its anti-bullying policy,” Judge Weinstein continued, “and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination. He added that, since “a common framework under which to analyze the issue has not emerged,” he offered his own guidelines for determining if school staff have adequately prevented bullying. He dismissed suggestions that 1) the case should be dismissed because it could “open the floodgates to litigation since bullying is so pervasive in our schools” and 2) that schools wouldn’t be able to manage the added administrative burden and costs, writing that “his test only required the city to adopt the ‘prompt and appropriate’ measures federal education officials had required for years to address bullying,” the Law Journal reported.

Judge Weinstein referred to the well-known 1969 case “Tinker v. Des Moines Independent School District,” saying that students have a “guaranteed right to be protected from abuse in school… “The Supreme Court ruled that the proper test is whether the student’s expression created a material or substantial disruption of school work or infringed on a student’s right to be let alone.” I’m no lawyer, but here he seems to be spotlighting a single student’s “right to be let alone” as much as the oft-used “substantial disruption” test. Among the questions this case raises is whether students’ “guaranteed right” and the judge’s guidelines for determining that schools’ obligations have been met will be applied to all students, including those who have special needs, and to off-campus, school-related bullying called cyberbullying going forward.

So the needle appears to be inching in the right direction – toward more school involvement even when bullying is hurting a single student. Now let’s hope schools will address all bullying in a way that helps, not just punitively. As I wrote a year ago here, the immediate goal of a school bullying investigation is not discipline (certainly not expediency) but rather support for the targeted student(s) and restoration of order. The ultimate goal is to create a learning opportunity for all involved … focusing on the areas of critical thinking, mindful decision-making, perspective-taking, and citizenship. The Law Journal reports that a date for the hearing Judge Weinstein ordered has not yet been scheduled. [See also: “Confronting Cyberbullying” in TheJournal.com.]

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