Think the law protects our children from bullying? Think again.
by thenotebook on Oct 29 2013 Posted in Commentary
by David J. Berney and Kevin Golembiewski
It began in 6th grade. A girl we'll call “Meghan” was called “bitch,” “faggot,” and “it” nearly every day at school. At lunch, Meghan’s peers pulled and spit in her hair. In the hallway, students punched and pushed Meghan as she made her way to her next class. In 7th grade, during gym class, a student put a trashcan over Meghan’s head. When Meghan removed the trashcan, a group of students knocked her down, then punched and kicked her. School officials were repeatedly notified about incidents like this. Nonetheless, Meghan suffered through these physical and verbal assaults until she dis-enrolled from Philadelphia public schools this past year.
For "Dante," it started in 3rd grade. Dante has a visual impairment and peers targeted him because of his disability. He was called “dumbass,” “retard,” and “bitch.” On a good day, classmates would take Dante’s things and taunt him. On bad days, which were frequent, Dante was attacked by groups of students in the hallways and restrooms. In 4th grade, Dante’s sister found him attempting to hang himself with an extension cord in the family home. Dante survived, but bullies continued to harass him until he left the Philadelphia School District.
Meghan and Dante’s stories are far from unique in Philadelphia or nationwide. According to the 2010 Department of Justice data, one in seven students in grades K-12 is either a bully or a victim of bullying, and 90 percent of 4th through 8th graders report being victims of bullying. Each day, 160,000 students miss school due to a fear of being bullied. There are about 282,000 students that are reportedly attacked in high schools throughout the nation each month, and a number of school-shooting incidents, such as those at Sandy Hook Elementary in Connecticut and Columbine High School in Colorado, have been linked to harassment and bullying.
As civil rights attorneys, we now represent Meghan and Dante and we advocate for other children who make up these statistics. Unfortunately, this past summer, Pennsylvania’s federal court of appeals made our job much harder.
In Morrow v. Blackhawk School District, the parents of two teenage girls sued their school district after the girls were physically and verbally assaulted multiple times during school hours. The school had notice of the assaults but failed to stop them from recurring. Although state compulsory attendance laws required the girls to attend school and the school district had authority over the girls when the bullying took place, the court found that the school district had no constitutional duty to protect them.
The court clearly was concerned about the number of claims that school districts would face if they were held legally liable for ignoring bullying. But this begs the question: Who is responsible for our children’s safety while they are at school if it isn’t the school itself? Without having to worry about liability, schools can continue to turn a blind eye, leaving students like Meghan and Dante completely unprotected.
Bullying victims like Meghan and Dante also have minimal protections at the state level. In Pennsylvania, the state legislature passed an anti-bullying statute in 2008, but the law is more rhetoric than substance. “Policy Relating to Bullying,” as the law is called, requires schools to adopt “policies that delineate disciplinary consequences for bullying.” But without more specific requirements or penalties for failures to implement anti-bullying policies, schools are under no pressure to put in the time and resources necessary to combat bullying.
In addition to the state’s anti-bullying statute, Pennsylvania has a piece of civil rights legislation, the Pennsylvania Human Relations Act, which can be used to address certain types of bullying. However, the act only applies when the bullying is based upon the victim’s race, sex, national origin, religion, or disability status. When it is not based on one of those categories, students remain unprotected.
At a minimum, to hold schools responsible and to successfully advocate for their children, parents need to document in writing any bullying their child experiences. Parents should describe everything that their child is undergoing and send that written documentation to the school principal. The parents should meet with school officials to discuss any incidents and the effects that they see their child suffer.
In other words, parents need to be hyper-vigilant. They should also consult with the Pennsylvania Human Relations Commission or the Philadelphia Commission on Human Relations to ask those agencies to assert jurisdiction over their claims. Finally, parents should consider consulting with an attorney.
Upon entering our office, our clients are convinced that the law will bring them justice and provide a means to ensure that their school never lets another student be bullied like their child was. Needless to say, when we describe the difficulties that our legal system presents for bullying claims, they are shocked and saddened. We are tired of our clients feeling this way.
Even more so, we are tired of a legal system that allows our children to continue to suffer. Meaningful reforms are needed – we must fill the gaps in the current legal framework to ensure that our children are protected. Our most vulnerable members of society deserve better. Our future depends upon it.
Names were changed to protect students' privacy.
David J. Berney and Kevin Golembiewski are special education attorneys in Philadelphia.
The opinions expressed are solely those of the authors.