Recently we have seen the issue of bullying take center stage in Yelm, WA. A series of Facebook discussions on the local Yelm pages motivated the local newspaper to run a series on bullying – including its most recent article entitled “When Bullying Crosses the Legal Line.” Available at: http://www.yelmonline.com/news/article_99929f50-578f-11e7-a0ad-678975ccddaa.html (Online subscription required for access)
The article provided some good quotes from school officials and the police about bullying and harassment in general. But it was not intended as a clear guide of what a parent (or student) should do if a kid is being bullied. Day to day coping mechanisms are essential – but no one (adult or child) should have to implement daily coping mechanisms just to participate in their daily life! As adults we sometimes take for granted the laws and procedures put in place to protect us from the bullies in the world. If everytime you went into work, someone called you names, whispered behind your back, spread rumors, etc. – and human resources did nothing but tell you how you can change your own behavior, rather than imposing consequences on the perpetrator – what kind of message would that send to the bully?
If your child stands up for him or herself, and the bullying does not stop – perhaps it is time to enforce some consequences on the bully and those allowing the bullying to continue. Just like in the adult world, perpetrators must be held accountable in order for their behavior to change. Your child should not have to rely on their own coping mechanisms just to function in the face of bullying – adolescence is difficult enough, am I right?
Mediation and other types of Alternative Dispute Resolution.
Before going to the court system for relief, it may be advisable to contact the Education Ombudsman. The Education Ombudsman is an office that works across the state to mediate between families and schools.
Their website is: http://oeo.wa.gov/. If you don’t believe the school has adequately addressed the issue, the next step may be to get the EO involved. This also begins to develop a case history and foundation should additional steps need to be taken if mediation does not result in positive changes.
You can also employ the services of a mediator or collaborative lawyer to help you solve the issues. This serves a dual function of laying a foundation for future litigation if attempts at resolution fail.
Anti Harassment Order (“AHO”)
Although it was mentioned in the article, a civil anti harassment order is not a viable option to deal with most bullying situations.
It is very difficult to obtain an anti-harassment order against another minor. The statute provides that the only way a court will issue such an order is “in cases where the person to be restrained has been adjudicated of an offense against the child protected by the order, or is under investigation or has been investigated for such an offense.” RCW 10.14.040 (7):
And, even if the child has/is being investigated, the court still may not issue the protective order. It must consider “among the other facts of the case, the severity of the alleged offense, any continuing physical danger or emotional distress to the alleged victim, and the expense, difficulty, and educational disruption that would be caused by a transfer of the alleged offender to another school.”
In sum, before you file for an AHO you should already have an open police report, and followed up to ensure that there is an active investigation. Gather your own evidence, witness statements, and school records and request that the case file be updated with that information. Unfortunately, sometimes it takes persistence to actually get a case opened – police tend to be much more dismissive of “schoolyard issues” than say, for example, domestic violence allegations. Once there is an active investigation, then you can try to obtain an AHO – without at least an active investigation, the statute does not allow the court to issue an AHO between minors.
Having an attorney involved can help you to gather and present a case to the police to get the underlying investigation started before pursuing the AHO.
Litigation (or at least the threat…)
Sometimes the only way to make people and institutions accountable is via our justice system. If you have tried to work with the school, called the Education Ombudsman, and reported the issues to the police to no avail – what is your remedy? You and your child have legal rights. Education is a fundamental right.
In the case of school bullying, you would probably have claims against both the bully (and his/her parent(s)) and the school itself. (Another blog post will address parental liability for their childrens' actions specifically)
The seminal Washington case setting school liability is McLeod v. Grant County School District No. 128, 42 Wn.2d 316, 255 P.2d 360 (1953). A school and student have a special relationship, and thus a school has a duty of care to students. This standard has been applied on several occasions to impose liability on a school for anything from shop class accidents to sexual molestation by a teacher.
More recently, the duty of the school to protect against bullying came up in Hopkins v Seattle Public School District No. 1, No. 73147-5-I (July 18, 2016).
In Hopkins, the plaintiff was struck by another student and suffered a broken jaw. Because "School districts owe a duty to protect the pupils in its custody from dangers reasonably to be anticipated— including the foreseeable misconduct of third-parties" (McLeod), Hopkins claimed that the school district should have reasonably anticipated that the other student (who had a history of behavioral problems and aggression) would attempt to assault him, and should have protected him from that assault.
The case was on appeal regarding a claimed error in the instructions given to the jury on the "special relationship" between the school and the student, so the decision does not include a lot of background facts such as whether the school knew about prior incidents of bullying involving the perpetrator. But the case does establish that a school can be held liable for not foreseeing and preventing harm caused by a bully, at least under some circumstances.
Also in 2016, the Washington Supreme Court ruled that, in some circumstances, a school can be liable for failing to protect a student from conduct that occurs off campus by a third party. Liability for a breach of duty while a student is in custody is not cut off merely because the harm does not occur until later. The Supreme Court clearly held that "…districts have a duty of reasonable care toward the students in their care to protect them from foreseeable dangers that could result from a breach of the district's duty. While the location of the injury is relevant to many elements of the tort, the mere fact the injury occurs off campus is not by itself determinative…. As the Idaho Supreme Court noted in a somewhat similar case, " the relevant inquiry is to the location of the negligence rather than the location of the injury." N.L. v. Bethel School District, 378 P.3d 162 (Wash. 2016)
In NL, the school principal was informed that an 18 year old student was a sex offender with predatory characteristics, yet the principal did not inform the student's teachers or coaches as was school policy. N.L. was a 14 year old who was taken off campus by the 18 year old and raped.
Making the jump from imposing liability for an off campus rape of a 14 year old by a fellow 18 year old student who was a registered sex offender to imposing liability for off campus bullying may seem far fetched. But the duty to reasonably foresee harm caused by a fellow student exists regardless of the degree of resulting harm. And, a school district is liable for harm which occurs off campus as a result of the school's breach of its duty to reasonably foresee and protect from that harm. Situations can be imagined where a school fails to recognize bullying and intervene to protect the bullied from the resulting harm - both physical and mental/emotional - that would occur both on and off campus.
In conclusion - even if you don't want to actually sue the school district, you are more likely to get officials to take your case seriously if you put together a foundation documenting the bullying and how it is effecting your child and his or her ability to attend and participate at school. Retaining an attorney to articulate your case and what you want done can also be an effective method of communicating that you are serious about your child's wellbeing and right to an education free from fear.
We are committed to advancing justice for our clients and our community. The community aspect of our philosophy includes ensuring that our institutions, including education, remain accountable. If you would like to schedule a consultation to discuss your options to address a bullying problem, feel free to call, email, or a submit a confidential inquiry via the link on our homepage.
Breckan Law PLLC