D. Scott BennettLeitner, Williams, Dooley & Napolitan,

PLLCscott.bennett@leitnerfirm.com

Bledsoe County Schools In-Service Training

Bledsoe County High SchoolAugust 8, 2012

Topics of Discussion

Bullying and abuse of students– Legal issues– Your duties

Professionalism– What it means– How it should govern your conduct

The Bullying Landscape

In 2011, approximately 1 in 4 children reported having been bullied (www.stopbullying.gov)

No one likes a bully!– Not everyone agrees on what constitutes bullying– The parents of bullies almost never see their

children as bullies Everyone expects the schools to be able to

stop bullying

The Traditional Legal Framework

Negligence standard: The board will be liable if – School officials knew or should have known of the bullying;

and– Failed to exercise reasonable care to prevent it

Liability under federal law: The board will be liable if– The harassment is based upon the victim’s race, color,

national origin, sex, or disability status;– The harassment interferes with an educational opportunity;

and– School officials were deliberately indifferent to the

harassment

Tennessee’s Statutory Scheme

TCA 49-6-1015 defines “harassment, intimidation or bullying” as any act that substantially interferes with a student’s educational benefits, opportunities or performance, and

If the act takes place on school grounds, at a school activity, on a school bus or at a school stop, the act has the effect of

– Harming a student or damaging his property; or– Placing a student in fear of harm to himself or damage to his property; or– Causing emotional distress to a student; or– Creating a hostile educational environment; or

If the act takes place off school property and unconnected with a school activity, the act

– Is directed at a specific student or students; and– Has the effect of creating a hostile educational environment; or– Creates a substantial disruption to the education environment or learning

process

Stop. Let’s Think…

How does the Code’s definition differ from your own understanding of bullying?

– Doesn’t there have to be an “imbalance of power?”– Can it be a single act?

What does “substantially interferes” mean?– What about kids being kids?– What about Facebook?

Know the law, but use common sense– Recurring theme -- the label is less important than the

misconduct!

Mandatory Anti-Bullying Measures

TCA 49-6-1016 requires local boards to adopt policies

– Defining and prohibiting harassment, intimidation and bullying;

– Setting forth consequences for violating the policy and steps school officials will take to remediate behavior;

– Creating a procedure for the reporting and investigation of bullying;

– Prohibiting retaliation against those who report bullying; and– Specifying how the policy will be publicized

Employees: Know these policies and follow them!

We’re from the Federal Government and We’re Here to Help

“Dear Colleague Letter” of October 26, 2010– A school is responsible for addressing harassment

incidents about which it knows or reasonably should have known

– A school must take immediate and appropriate action to investigate or otherwise determine what occurred

– If harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment and prevent it from recurring

OCR has taken the position that all bullying is preventable

The Public Eye

In Hamilton County, there has been a recent push by concerned parents to “take back the schools”

– Triggered by a few high-profile incidents and by recent demographic shifts

– The focus has been upon adopting a “zero tolerance” for bullying

Hamilton County’s climate is not unique– Most local boards have similar polices, none of which

clearly explains to the public specifically what happens to a bully

– None of us can divulge details of how we address student discipline

– The media fosters the impression that local school officials are not responding to threats to student safety

So What Do You Do?

Employees: If you receive a complaint of bullying, or if you become aware of possible bullying, report it to the principal and the central office

Administrators:– Begin an investigation into allegations immediately– Keep the complainant informed of the progress of the

investigation and the general outcome Beware FERPA

– Take action against the conduct, not the supposed motivation

– Give clear instructions to the complainant regarding his right to be free from retaliation

– If appropriate, offer counseling to the victim

A Word about Abuse

State law provides that “any person” who reasonably suspects that a child is the victim of abuse or neglect shall report this suspected abuse

– Must report to juvenile judge, the sheriff, the police chief, or DCS

– It is not sufficient to report to your principal Failure to report?

– Misdemeanor punishable by up to one year in prison– Civil liability?– Neglect of duty?

Professionalism in the School System

School systems occupy a unique position in any community

– Largest employer– Largest recipient of tax revenue– Entrusted with most precious asset

Community has high expectations of performance Community has a tendency to scrutinize any failures

with greater detail and to demand accountability

Communications with Students

Rule No. 1: Always be a professional– It is easy to slip into a casual rapport with students,

particularly ones you have known for a while The less formal means of communication you use, however,

the more careful you need to be!– Don’t get mad– Don’t use slang– Don’t be vague in e-mails– Never use text messages or make cell calls

Consequences?– Statements can be misconstrued– Any allegation of improper behavior can haunt you for the

rest of your career

Out-of-school Conduct

You are always a professional– Viewed by the community differently than a layman

What about Free Speech?– Facebook and personal website?– What hat are you wearing?

Speech pertaining to your job is not always protected! Generally, the Board will not hold you accountable

for out-of-school conduct unless there is an on-campus impact

– But it is impossible to guess whether there might be such an impact!

Good rule: If you cannot say something nice…

Questions?