This is the third post in a three-part series about what to do if your child is being bullied at school. In Part I, I discussed how to handle bullying at the school district level, and in Part II, I discussed the options parents may have if they want to file a complaint with a state or federal agency. In this final post, I’ll discuss what legal options may be available for parents and students.
In Season 2 of Thirteen Reasons Why, we watch as the parents of a student who commits suicide due to intense bullying try to hold the school district liable through legal action. Drama unfolds as various students testify, some truthful and some not, during what feels like a weeks-long trial, and in the end, the jury returns a verdict in favor of the school district – all within mere months of the student’s suicide. This may make for good TV, but it’s a far cry from real life.
In real life, lawsuits against school districts in bullying cases are rare. They’re hard to win, time-consuming, and expensive. Parents often don’t have the tens of thousands of dollars necessary to move forward with a case like this, and attorneys are reluctant to take such cases on a contingency fee basis due to the difficulty and uncertainty involved. In Arkansas, there is no explicit cause of action against a school for bullying, and our courts have repeatedly held that schools have no affirmative duty to protect students from other students. Furthermore, Arkansas schools are immune from liability in negligence cases except to the extent that that the school has liability insurance. Because most liability insurance policies will not cover claims where bullying is involved, school districts are typically immune from this type of lawsuit absent an intentional act or constitutional violation.
Students who qualify for services under the Individual with Disabilities Education Act (IDEA) typically have more protections. More information about the IDEA can be found here. Parents of students receiving IDEA services can often file administrative due process complaints alleging that their child is not receiving a free, appropriate, public education due to extreme bullying. This is not the same as a lawsuit, and due process complaints don’t result in monetary damages for parents, but it can provide students with relief from bullying. Likewise, students who are being harassed due to gender, race, religion, or national origin can sometimes bring equal protection or Title IX claims against a school. These cases are still hard to win, as parents must prove that school district personnel were deliberately indifferent to the harassment. And in all cases, parents must prove the existence of monetary damages, such as medical or therapy bills that the student incurred due to the harassment.
In general, bullying cases against school districts are rare, particularly in Arkansas. However, I would never want to discourage a parent from seeking legal recourse, as these cases can be successful under certain circumstances. For more information on what can be done to stop bullying, and how schools can be held accountable when they fail to protect children from bullying, please visit the Public Justice Anti-Bullying Campaign. For tips on how to prevent bullying and protect your child, go to www.StopBullying.gov.