In 2006, Dr. Nan D. Stein, senior research scientist at the Center for Research on Women at Wellesley College in Massachusetts, wrote that "eradicating bullies is ... all the rage with state legislators and consultants" (National School Boards Association's Leadership Insider, August 2006).
Five years later, bullying is a centerpiece of national and state school transportation conferences. The fact that such behavior creates a barrier to learning, and, too often, media headlines shout the tragic aftermath of relentless bullying at the hands — and computers — of a student's peers, certainly justifies our interest.
As of October 2010, 44 states had adopted "bullying" statutes requiring a variety of actions by school districts. Such legislation testifies to the attention this serious problem is receiving. But Dr. Stein observed in 2006 that, "School boards and administrators should consider whether they have been too quick to embrace the anti-bullying movement and, in so doing, to abandon the anti-harassment focus."
And, on Feb. 9, 2011, testifying at a hearing in Massachusetts instigated by that state's Commission to Review Statutes Relative to Implementation of the School Bullying Law in Massachusetts, Dr. Stein cautioned that "federal civil rights laws trump bullying frameworks which can work to gloss over harassment concerns that amount to federal civil rights violations."
When is a "bully" a "harasser"? Does it matter? It may, if Dr. Stein's concerns are valid. School districts have significant responsibilities under federal anti-discrimination laws that prohibit "harassment" based on race, color, national origin, disabilities or sex. Often, the lines between bullying and harassment are blurred.
If the "bullying" label is misused, leading school officials to overlook the legal mandate for investigation and, where harassment is identified, implementation of an effective remedy that complies with federal law, then the label that's applied to the conduct can be important.
That was the point of an Oct. 26, 2010, "Dear Colleague" letter that the U.S. Department of Education's Office for Civil Rights sent to all school districts. The letter noted that "by limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment."
Where is the line, however thin, between bullying and harassment? You can, in fact, be on thin ice if you don't recognize that the label applied must not improperly limit the response made to the conduct. And, given the long-standing disconnect that too often characterizes school administrators' attention to incidents on the bus, what must school offi cials and school transportation professionals do about bullying and harassment on the school bus?
What can we learn from litigation?
A brief review of a sampling of cases of bullying and harassment on the school bus yields some fairly clear messages.
When kindergartner Jacqueline Fitzgerald's parents sued a Barnstable, Mass., school district for its handling of allegations that boys made the little girl lift up her dress and touched her inappropriately on the school bus, the case went all the way to the U.S. Supreme Court. In June 2009, the case settled for $150,000, soon after the Supreme Court had cleared the way for the case to go back to the trial court for further exploration into the school district's handling of the complaint in the first instance, and its investigatory procedures (despite what appeared to be reasonable response on the part of the district).
In January 2010, the U.S. Justice Department orchestrated a $1.475 million settlement with the Metropolitan Government of Nashville and Davidson County (Tenn.) in response to a lawsuit stemming from a 19-year-old emotionally disturbed student's sexual assault on Gilberto Lopez, a 9-year-old with autism, on an unmonitored special-education bus. A key issue in the case was the district's failure to share information with the transportation department about its knowledge of the older student's previous predatory sexual behavior with younger students. The special-needs routing coordinator placed the two students on the same bus, unknowingly, with a substitute driver who knew nothing of their disabilities, and less about what to do when she saw "something inappropriate" occur between them on the bus.
In an August 2005 New York case, a 13-year-old eighth-grader with disabilities was the victim of repeated instances of being called "stupid," "idiot," "retard" and other insults, and acts of "physical aggression and intimidation," by students both in school and on the school bus. After the first incident on the bus, the boy's mother sought out both the superintendent and the director of transportation; allegedly, neither got back to her. School officials failed to take any action despite the boy and his mother reporting each incident.
A 2007 Indiana case was "the culmination of two school years of bullying and defendants' perceived lack of response to the bullying." Among the defendants were the school corporation and an independent contractor who provided transportation to district students. Allegedly, the district was well aware that S.S., a middle school boy, was being bullied on the basis of sexual orientation. The bully started antagonizing the boy's sister after she sought help from the driver. When S.S. tried to come to his sister's defense, a fight ensued. The driver "never physically intervened to stop the altercation; he only looked in his rearview mirror and ordered the students to stop." Both the victim and the bully were given in-school suspensions by school administrators. The court found that the district failed to follow its own policies about threatened violence and bullying, and that this failure led to a severe and pervasive "campaign of harassment."