Fighting Back: Bullying Prevention Under Ohio Law
The following article was originally printed in the 2011 March/April issue of Ohio Lawyer, the Ohio State Bar Association member magazine. It is being republished here with permission from the Ohio State Bar Association.
On Feb. 16, The Supreme Court of Ohio heard arguments in Mentor Exempted Village School Dist. Bd. of Edn. v. Mohat, which is before the Court on the certification of a state law question from the U.S. District Court.1 The ultimate outcome will determine if the parents in this case can sue a school district over the bullying-related death of their son.
Eric Mohat was one of five students who attended Mentor schools and committed suicide between July 2005 and October 2008. Two lawsuits filed against the district, including the one filed by the Mohats, contend bullying played a role in all five deaths. The parents argue that the school knew about the bullying and failed to protect their son. Eric was verbally and physically bullied at school, essentially for being a boy who liked to wear pink. Sladjana Vidovic, whose parents filed the other lawsuit, was ridiculed for, among other things, her thick Croatian accent. She would receive calls in the middle of the night telling her to go back to Croatia and was once pushed down the steps at school.2
These are just a handful of high-profile examples from one Ohio school district, but they make it clear that bullying has advanced well beyond stolen milk money and "kick-me" signs, and yields potentially severe consequences. So, how is the issue of bullying handled in Ohio and what preventative measures are in place?
Statistics from the U.S. Department of Education show that, while school violence has declined, incidents of behaviors such as bullying have increased.3 According to the Ohio Department of Education, 50 percent of all students are bullied at some time during the school year, and 10 percent are bullied on a regular basis. Ohio law requires that all public school districts must have policies prohibiting harassment, intimidation and bullying. The policy must be developed in consultation with parents, students, school employees and community members.
Ohio law requires school policies to use the definition of bullying found in R.C. 3313.666, which defines "harassment, intimidation, or bullying" as:
Any intentional written, verbal, or physical act that a student has exhibited toward another particular student more than once and the behavior both: (a) causes mental or physical harm to the other student; (b) is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment for the other student.4
The law, which applies to all public schools, also requires school principals to respond to and investigate any incident of bullying that is reported (either verbally or in writing), document the incident in writing and notify parents or guardians of any students involved in these occurrences. Their responsibilities also involve using intervention strategies for protecting victims from additional harassment or retaliation and employing interventions or disciplinary procedures for any guilty students. The law further requires school districts to post a summary of all reported bullying incidents on their district websites at least twice a year.5
"But that doesn't necessarily mean that all schools have a policy that they've publicized adequately, or that schools are following their policy, as they should be," noted Sarah Biehl, an Ohio Poverty Law Center staff attorney who focuses on education law. "Parents should ensure they have a copy of the policybefore [emphasis added] problems arise. Then they should make sure the school is following the policy. Those are probably the two most important things parents can do to address this issue. The law requires schools to seek input from parents, students and community members in developing their policies. I think community participation is key to ensuring that policies like this work and are enforced consistently and fairly."
If a parent finds out that his or her child has been a victim of bullying, the incident should be immediately reported to the child's school. Biehl advises that parents keep records of their communications with the school, and if they write a letter or e-mail, they should date it and keep a copy for their records. If parents call or speak to a school administrator in person, they should write down the date, the time and a summary of the conversation.
Even if another student is not disciplined for a bullying incident, a school is still responsible for making sure the victimized student is protected from future bullying, especially from retaliation for reporting a prior incident.6
Bullying incidents may also run afoul of federal law. A U.S. Department of Education guidance letter to school districts provides an overview of applicable federal law and school districts' responsibilities. Student misconduct that falls under a school's anti-bullying policy may also fall under one of the federal antidiscrimination laws enforced by the U.S. Department of Education Office for Civil Rights (OCR) including Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin; Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex; and Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability. According to the U.S. Department of Education OCR website, school districts may violate these civil rights statutes when peer harassment based on race, color, national origin, sex or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed or ignored by school employees.7
Cyber-bullying
Another type of bullying that is occurring among school-aged children is cyber-bullying. Cyber-bullying is similar to other types of bullying, except it takes place online and through text messages. It can include acts such as sending someone mean or threatening e-mails, instant messages or text messages; tricking someone into revealing personal or embarrassing information and sending it to others; or creating websites to make fun of another person.
"I think that a lot of adults don't realize how much more insidious bullying can be now that technology allows people to interact without ever seeing each other face to face," noted Biehl. "People can say much more vicious things through a text, e-mail or Facebook post than they would ever say to someone's face, and that makes bullying a much different thing than it was for us when we were in school."
In May 2008, Jessica Logan, an 18-year-old Sycamore High School Student in Cincinnati, took nude photos of herself while on spring break. Jessica sent the nude photos to her boyfriend's cell phone. Ultimately the pictures were seen by hundreds of teenagers from at least four Cincinnati-area high schools. As a result, Jessica was relentlessly harassed at school and through text messages and social media such as Facebook. She became withdrawn and started skipping classes. On July 3, 2008, she hung herself in her bedroom.8
According to the National Crime Prevention Center, more than 40 percent of all teenagers with Internet access have reported being bullied online. Only 10 percent of those who were bullied told their parents about the incident, and of that only 18 percent of the cases were reported to a local or national law enforcement agency.9
Despite the anonymity available online, 52 percent of middle school students who have been victims of cyber-bullying report that it was by someone they knew. Thirty-six percent said they had been cyber-bullied by a friend.10
Forty-five percent of preteens and 30 percent of teens who had been cyber-bullied received the messages while at school, while 44 percent of preteens and 70 percent of teens who had been cyber-bullied received the messages at home.11
The Ohio Department of Education Anti-Harassment, Anti-Intimidation or Anti-Bullying Model Policy states that, "harassment, intimidation, or bullying also means electronically transmitted acts i.e., Internet, cell phone, personal digital assistance (PDA) or wireless hand-held device that a student has exhibited toward another particular student more than once ... ."12 While it is mentioned in the department of education model policy, the state statute does not specifically address cyber-bullying.
"Regarding whether the policies schools develop under the state statute implicitly address cyber-bullying, I'll give you the typical lawyer's answer: it depends," says Biehl. "If the cyber-bullying occurs at school, from a school computer or during school hours or at a school-sponsored event, I think the answer is yes, the schools' general bullying policy would probably cover it. If the behavior (as it often does) occurs from the student's computer at home, after school, off school premises, etc., I think it's not clear."
During an OSBA CLE School Law seminar Dec. 28, Amanda J. Clapp, inhouse counsel with Neola, a firm that works with school districts to develop legally compliant policies, noted that while social networks are the most common forum for cyber-bullying, school administrators should carefully consider First Amendment rights before imposing any discipline for off-campus cyber-bullying incidents.
Prevention and punishment
According to Biehl, "The Ohio bullying statute explicitly does not create a private right of action for parents or community members to enforce it, so a parent's legal options against a school for failing to address bullying are limited. Unless the bullying rises to the level of harassment, and the school's reaction can be fairly characterized as 'deliberate indifference,' there may not be much a parent can do to force a school to respond from a legal perspective."
"I think, however, that bullying is the kind of situation that screams out for a non-adversarial, non-litigious solution," says Biehl. "I think that it is very possible to develop policies that balance the need to protect students from bullying with the need to ensure that the bullies themselves are dealt with appropriately."
School-wide preventive practices are one way to find that balance. Perhaps the most popular bullying prevention program, the Olweus Program is a comprehensive, school-wide program designed and evaluated for use in elementary, middle or junior high schools. The program's goals are to reduce and prevent bullying problems among school children and to improve peer relations at school. With more than 35 years of research, the Olweus Program has been implemented in more than a dozen countries around the world, and in thousands of schools in the United States.13
Additionally, both the Ohio Department of Education and U.S. Department of Education offer resources and guidance to both schools and parents, as do the Ohio Attorney General, Ohio Legal Services and the National Center for Crime Prevention.
Ohio State Bar Foundation
The Ohio State Bar Foundation's (OSBF) 2009 Fellows Class is one group that has recognized the need to reach out and educate students on this issue. The Fellows Class sponsored a statewide student video challenge, B4USend, to teach students the lawful and social consequences of cyber bullying and sexting, or sending sexually explicit photographs, videos or text messages to others' cell phones.
The group of 42 Fellows has targeted middle school youth in grades 6-8 before they get into legal trouble. By providing online materials for teachers and adult leaders to use with youth, the OSBF challenged school classes and other youth-oriented groups to create and send in their own videos about sexting, cyber bullying and their effects.
The winning video will be transformed into a public service announcement to be aired on more than 40 media outlets throughout the state and distributed to all Ohio middle schools to be shown during Law Week (May 2-6, 2011).
Fellows class member George Reynolds, chief magistrate of the Greene County Court of Common Pleas, General Division, says, "The topic and project raise the public awareness of the consequences of behavior that appears to be prankish, but deeply hurts victims and their families, and often results in serious consequences to the 'sexter' or 'cyber-bullyer.' We selected the target audience of 6th to 8th graders to attempt to influence them to avoid the behaviors before they experimented with them and suffered the consequences."
Bev Graves, a retired Worthington high school teacher of more than 35 years and part-time Foundation employee, has given roughly 20 presentations in middle schools on behalf of the OSBF B4USend project.
"I've had a number of middle school kids pull me aside after a presentation and say 'that happened to me' or 'this is what happened to my cousin,'" says Graves. "You always say 'I think I've heard and seen it all,' and yet I haven't. The pervasiveness of it-it has more of a foothold than what you would believe. These kids are a lot more sophisticated in technology. It's not a class thing. It's not an economic thing. The kids see it just as a part of their culture and do not think through what it could mean or the harm that they could be doing to other kids or to themselves."
Biehl agrees. "Ultimately, schools' ability to address this issue is limited, and parents and other community members who interact with kids outside of school need to have this on their radar, too."
There can be gray areas in laws and policies that deal with bullying. When exactly does a seemingly minor incident or string of incidents turn into something more vicious? How far does a school's authority reach? Yet, ignoring or downplaying the significance of bullying can result in a situation that is harmful to both the victim and the bully. All involved-students, school administrators, parents and the legal community-need to be educated, involved and proactive in their approach to curtailing the bullying situation before harassment in the school yard turns into arguments before the Supreme Court.
Andrew Hartzell is OSBA publications manager and managing editor of the "OSBA Report."
