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Think the law protects our children from bullying? Think again.

By David J. Berney and Kevin Golembiewski on Oct 29, 2013 11:23 AM

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.

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Comments (4)

Submitted by Helen Gym on October 29, 2013 5:37 pm

The 2010 Justice Department ruling at South Philadelphia High School was considered a major precedent in establishing that districts are responsible for creating safe anti-bias climates for all students. Both Dante and Meghan's stories are appalling and shameful. They also indicate potential bias based harassment - one around gender or gender identification and the other very clearly around Dante's disability. 

While state laws may be disappointing, the District has clear federal responsibilities laid out in revised policies 248 and 249 - which are, unfortunately, not available yet on the SDP website (something I will investigate immediately). They include a requirement for all staff to report bullying and harassment, an investigation within 14 days, and a report back to the family. 

The community groups around the South Philadelphia High struggle worked hard to revise a policy that would benefit all the students in the District and to establish clear lines of responsibility whenever bullying or harassing behavior occurs. This does not mean that cases of harassment will be prevented but that District lines of accountability are clear in situations where students like Meghan and Dante suffer to this extent.

Feel free to email me anytime about this,

Submitted by Go-Eagles (not verified) on October 30, 2013 10:31 am
Here is a link to an article about a recent federal court decision on bullying.
Submitted by KB (not verified) on October 30, 2013 10:01 am
It is a very sad commentary that the law does little to protect our children from bullying in school. If you ask most school administrators, they will say that their highest priority is to provide a safe environment for all children. Safe physically and safe emotionally. Bullying (especially cyber-bullying) is a hot topic these days in our schools. What it really comes down to is the vigilance on the part of the school staff and administration to act swiftly and harshly when bullying occurs. The best situations are in those districts where there has been much proactive work to prevent bullying from occurring in the first place. Not to be naive -- We all know it occurs no matter what. The question is how much are the schools prepared to work to remain hyper-aware of bullying and where the potential lies? Do they have systems in place to monitor the new and discrete ways children bully each other? Additionally, what are they prepared to do when bullying incidents are reported? Are they band-aided with a slap on the wrist and short suspension, perhaps? Or, are the schools willing to invest the time, money and effort to react in ways that would reduce future bullying incidents? With the law written the way it is, it simply comes back to the schools. Are you lucky enough to have your kids in a district that takes bullying as seriously as they should? Unfortunately, if you are not, it seems as though it may be a frustrating road ahead.
Submitted by Rich Migliore (not verified) on October 30, 2013 3:44 pm
The only protection against bullying in schools is enough of these -- Assistant Principals (visible ones), disciplinary Deans, counselors, Non Teaching Assistants (NTA's), SLC Coordinators, Special Ed Liasons, Classroom assistants, School Police Officers, Conflict Resolution Mediators, and community police relations officers. And of course, school nurses. If anyone expects the legal system to protect students from bullying without the above-named resources in schools, I submit they are a bit misinformed about real life in urban schools. May I ask where is the Human Relations Commission in "all of this?" Have they, and we, forgotten the school violence hearings held by them? Does our history mean nothing?

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