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  • Bullying: Slowly But Surely, the Law Recognizes an Age-Old Problem

    How far is too far when it comes to protecting your child from an alleged school bully?  A mother in Santa Rosa, California may very well have pushed the limits of good parenting in attempts to protect her daughter earlier this month.  30-year-old Delia Garcia-Bratcher is due to be charged with one felony charge of inflicting injury on a child, after she allegedly left red marks on an alleged bully’s throat on May 17th.  Garcia-Bratcher denies ever having touched the boy, whom she alleges had been tormenting her daughter with racial slurs.

    Incidents such as this make it painfully clear that the age-old question of student bullying is alive and well, and may be reaching a boiling point within our society.  Student bullying has been a problem predating the existence of the elementary school as an institution.  Only in recent decades, however, have lawmakers and courts made a concerted effort to address this problem.  In a relatively recent case, the Eastern District of New York addressed this very issue, first by attempting to define bullying and differentiate it from mere horseplay.  “Every disagreement among children does not amount to bullying. What distinguishes bullying from other forms of childhood aggression, whether a hard-fought basketball game or rough-and-tumble play, is unequal and coercive power.”[1]  The court further addressed school bullying through the lens of First Amendment jurisprudence, citing other First Amendment cases have held that “there is no constitutional right to be a bully . . . Intimidation of one student by another, including intimidation by name calling, is the kind of behavior school authorities are expected to control or prevent.”[2]

    State legislatures have been taking a stance as well.  As of today, nearly all states have developed some form of law(s) that prohibit(s) bullying in schools.[3]  New York State’s “Dignity for All Students Act” declares the following:

    No student shall be subjected to harassment or bullying by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function.[4]

    The recent alleged acts of Garcia-Bratcher in California may very well have been those of a frustrated and desperate parent.  They may also have been ill-advised and unacceptable behavior against a child by an adult who failed to utilize the legal protections available to her.  A thorough analysis of the facts at trial will be key in determining who, if anyone, may be liable for these alleged acts.  As was mentioned in our recent blog post entitled “If a Student is a Bully, The Parents May Be on the Hook” by Cynthia A. Augello, the parents of an alleged bully may be held liable for the behavior of their child.  Furthermore, the school at issue here, Olivet Elementary Charter School, may be liable as well depending on what it knew about the incident, when it knew it, whether it contributed in any way to the incident, and how it proceeded to respond.

    If you or your institution has any questions or concerns regarding education related issues, please email Cynthia A. Augello at caugello@cullenanddykman.com or call her at (516) 357-3753.

    A special thank you to Gregory R. Harvey, a Summer Associate at Cullen and Dykman LLP, for his assistance with this blog post.

    [1]T.K. v. New York City Dep’t of Educ., 779 F. Supp. 2d 289, 300-301 (E.D.N.Y. 2011) (citing Philip C. Rodkin, Bullying and Children’s Peer Relationships, in White House Conference on Bullying Prevention, at 33 (March 10, 2011), available at http://www.stopbullying.gov/references/white_house_conference/index.html).

    [2]779 F. Supp. 2d 289, 300-301 (citing Sypniewski v. Warren Hills Reg. Bd. of Educ., 307 F.3d 243, 264 (3d Cir. 2002)).

    [3] “State Anti-Bullying Laws & Policies,” available at http://www.stopbullying.gov/laws/.

    [4]NY CLS Educ § 12.