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Why We Litigate to Protect Students from Bullying

Why We Litigate to Protect Students from Bullying

By Adrian Alvarez, Goldberg-Robb Attorney

I recently posted a blog with my colleague Adele Kimmel about an Oregon case filed by Josi Harrison, a high school student who was “sextorted” into sending nude photos of herself to her boyfriend starting in middle school. The crux of our blog post was that the school’s failure to take any action to protect Ms. Harrison from further harassment was as troubling as the harassment itself.

Our post generated a great discussion on Facebook. One commenter suggested that the case implicated sexual harassment, not bullying. “Confusing ‘bullying’ with ‘sexual harassment’ belittles sexual harassment, and doesn’t communicate the legal protections available to kids like your client under Title IX,” she wrote.

Other commenters felt that the boys’ parents should shoulder the greatest responsibility. “When do parents become responsible for their children’s bad behavior?” said one commenter. “Can’t count on ‘administrations’ to do much of anything . . . Where were the parents?” wrote a second commenter.  Finally, another commenter asked whether the case might implicate criminal activity, writing “Wouldn’t there also be a potential for trafficking of underage porn charge in there too?”

Each of these comments raises good questions. In the spirit of continuing this discussion, I’d like to provide a brief response to each.

First, I agree that Ms. Harrison’s attorney (Public Justice does not represent her) might be able to file a Title IX suit against the school district for deliberate indifference to the sex-based harassment, under the right facts. Title IX is a federal civil rights law that prohibits schools that receive federal funds from discriminating on the basis of sex.

But I don’t view bullying as narrowly as our commenter does. As Public Justice’s Bullying Litigation Primer explains, bullying includes sexual harassment. The definition of bullying adopted by most psychologists is “physical or verbal abuse, repeated over time, and involving a power imbalance.” This physical and verbal abuse may include inappropriate sexual comments and touching, it may include disparaging remarks of a sexual nature like “whore,” “slut,” and “skank,” and it can even include sexual assault. If the school district had actual knowledge of the harassment, then failed to take any meaningful steps to prevent it from occurring again, Ms. Harrison may indeed have a claim under Title IX.

It’s unclear how our commenter defines bullying. Radio doctor Zorba Paster recently wrote, “Bully abuse is just like other forms of abuse—it can produce a lifetime of problems.” Part of what we’re trying to do with our Anti-Bullying Campaign is to let parents, students, and educators know that bullying is serious, and if school districts aren’t taking meaningful steps to create healthy climates for students to learn, they can face substantial liability.

Regarding the role of the bullies’ parents, I agree parents should take responsibility for their children. After all, the home is the first place that children receive instruction on decency, respect, and compassion. And the attorney handling Ms. Harrison’s case has sued the parents and bullies in Oregon state court.

But equally important is what school administrators knew about the harassment and how they responded to it. If school administrators are turning a blind eye to something as egregious as sex-based harassment, they’re likely to be indifferent to other forms of harassment, too.

Public Justice uses litigation to change the culture within schools that accept bullying and harassment as a normal rite of passage. Suing the bullies and their parents doesn’t change a school’s culture. Suing a school district can. Litigation against a school district can result in anti-bullying education and training programs that substantially reduce bullying and improve the way that school personnel respond to bullying. In short, we’re looking for a long-term solution that will provide justice to the kid who’s been bullied, and will better protect kids from bullying in the future.

Finally, I want to quickly address whether the bullies could be subject to “trafficking” or “underage porn charges.” The short answer is that the decision to charge someone criminally must be made by the state of Oregon. It appears that at least one of Ms. Harrison’s alleged harassers has already pleaded guilty to misdemeanor charges of harassment and public indecency.

Criminal sanctions may well be appropriate in Ms. Harrison’s case. But I don’t believe that putting bullies behind bars is the way we want to deal with bullying in the vast majority of cases. As it is, this country already has one of the highest incarceration rates in the world, and public resources could be better spent on programs like one in Illinois that that teaches kids how to respect others. Plus, we have to consider that many kids who engage in bullying may have been bullying victims themselves, or have a difficult home life.

We can’t make parents teach their kids to respect others and act with compassion. But we can keep our kids safer by making schools do a better job of protecting them from bullying. Litigation against school districts and officials who fail to respond appropriately to bullying is a critical tool for accomplishing this.