by Norlisha Parker Burke
In May of 2002 the United States Secret Service and the United States Department of Education issued The Final Report and Findings of the Safe School Initiative: Implications for the Prevention of School Attacks in the United States which studied school-based attacks. Page 21 of the study states: “Almost three-quarters of the attackers felt persecuted, bullied, threatened, attacked or injured by others prior to the incident.” The report goes on to say, “…in a number of the incidents of targeted school violence studied, attackers described being bullied in terms that suggested that these experiences approached torment. These attackers told of behaviors that, if they occurred in the workplace, likely would meet legal definitions of harassment and/or assault.” (page 35-36)
Bullying has been closely associated with incidents of retribution and mass violence ranging from Columbine to Virginia Tech and many more situations that have not made the national media. “Bullying” is a broad term used to describe various behaviors such as hitting, kicking, name-calling, rumor mongering, social isolation, threats, and verbal assaults, whose purpose is to cause psychological harm to the victim. Bullying can equate to harassment and discrimination when it involves constitutionally protected classes. School administrators and their in-house counsel should be aware of the legal ramifications of accusations of bullying in their schools.
Lawsuits alleging bullying may be filed as tort actions in state courts or as civil rights claims in federal court. Notice of bullying may also affect the liability of a school system in a mass violence case, because prior accusations of bullying goes directly to foreseeability and reasonableness. State court bullying claims typically involve intentional infliction of emotional distress, negligent infliction of emotional distress, negligent supervision, assault, battery and breach of duties to protect and supervise. The risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. S.J. v. Lafayette Parish Sch. Bd., 41 So. 3d 1119 (La. 2010). Courts have consistently held that there is no liability for conduct that is “sudden” or “without warning.” Wallmuth v. Rapides Parish Sch. Bd., 813 So. 2d 341 at 347-8 (La. Apr. 3, 2002). In courts which allow claims for negligent supervision, the requirements are generally: (1) negligence on the part of the school board, its agents, or teachers in providing supervision; (2) a causal connection between the lack of supervision and the accident; and (3) that the risk of unreasonable injury was foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. Pugh v. St. Tammany Parish Sch. Bd., 994 So. 2d 95 (La.App. 1 Cir. 2008).
Currently, 47 of 50 states have anti-bullying laws. These laws may or may not prove to be statutory exceptions to the general rule that schools are only required to provide reasonable supervision. Louisiana Revised Statute 17:416.13 defines bullying, harassment and intimidation as “any intentional gesture or written, verbal, or physical act that: (a) A reasonable person under the circumstances should know will have the effect of harming a student or damaging his property or placing a student in reasonable fear of harm to his life or person or damage to his property; and (b) Is so severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment for a student.” It goes on to state “cyberbullying shall mean harassment, intimidation, or bullying of a student on school property by another student using a computer, mobile phone, or other interactive or digital technology, or harassment, intimidation, or bullying of a student while off school property by another student using any such means when the action or actions are intended to have an effect on the student when the student is on school property.”
In maximizing school safety, school administrators must continue to be vigilant, seeking to minimize bullying and reducing possible retribution through the mass school violence that has become all too familiar in today’s society.Tags: bullying, Norlisha Parker Burke, retribution, school viiolence