April 08, 2020

Legal weapons against school bullying

As a provider of legal services to low-income children and their parents, KIDS Legal of Maine, has heard from a number of parents like Plymouth’s Stephanie Cascone, who took her fight to prohibit the school bullying of her 10-year-old daughter to the front page of the Bangor Daily News (Oct. 16). While Cascone alleges victimization of her daughter by a special education student, our experience is the opposite -special education students are often the victims of bullying, and they eventually lash out and then face their own disciplinary problem. Regardless, it is helpful for all parents to know of their legal options in such situations.

As the Cascones realized, the primary avenue of redress is the school district. School boards are responsible for developing the student code of conduct, and state law requires every district to adopt anti-bullying and anti-hazing policies. Harassing behavior, or any action or situation that recklessly endangers the mental or physical health of any public school student, is to be prohibited under these policies, and local school boards are required to set penalties for violations. Those penalties can include suspension, expulsion, or other appropriate disciplinary action. A parent or student who encounters bullying should first read the policy, then contact the school superintendent, who is always responsible for its implementation.

The Cascone’s appeared to do as much, and were dissatisfied with SAD 48’s response. This is where the news story ended. In such instances, however, state law requires local school boards to provide an appeal process for unhappy parents. Should a parent encounter a school district policy that lacks an appeal process, the parent should immediately contact and complain to the Maine Department of Education.

Parents have other options beyond school policies and procedures. Even state law recognizes that the school’s anti-bullying policy is in addition to any other civil or criminal court penalties available. These happen to be numerous, even for student perpetrators.

A criminal assault can occur in any setting – hockey players have been the latest to realize this. In Maine, assault involves an intentional, knowing, or reckless action that causes bodily injury or offensive contact to another. The fact that such injury or contact occurs on school property is irrelevant for criminal law purposes. For situations where no contact occurs, but a student is placed in fear of imminent bodily injury, the perpetrator can be guilty of criminal threatening. Each of these offenses, if occurring among students, are Class D misdemeanors. Parents should contact local law enforcement agencies if they feel the situation warrants it. These are not private lawsuits, however. The choice to prosecute is always left to the local district attorney.

Private lawsuit options in such situations might include the civil “Torts” of assault or the intentional infliction of emotional distress. Prevailing in such an action will be depend on the facts of the case and the ability to show some compensable harm. Attorney assistance, of course, is advisable for any private lawsuit.

But Maine law does provide a user-friendly “Protection From Harassment” mechanism that parents can use, on behalf of their children, without counsel. If Cascone’s daughter had been assaulted or stalked, or on three or more occasions, had been intimidated, confronted, or threatened with physical force or believed her constitutional right to an education was being threatened, Cascone could have sought an immediate protection order from the local District Court on her daughter’s behalf. In such cases, Cascone and the perpetrator’s parent eventually would face off in court. The court could issue any appropriate order to stop the harassment, including provisions prohibiting contact in the classroom, threatening behavior, or following the victim.

Finally, for those parents who believe that bullying is related to their child’s gender, sexual orientation, physical or mental disability, national origin or race, Maine’s Attorney General’s Office employs an attorney specifically for Civil Rights Education and Enforcement. The attorney can provide guidance to the Maine Human Rights Commission if appropriate, or could enlist the involvement of a local school civil rights team. Special Education victims of bullying also have the option of using Pupil Evaluation Team meetings to craft solutions.

The foregoing is not provided to encourage parents to be litigious. Most bullying can be resolved without recourse to law. According to a 1999 survey of Maine third graders by the Center for Educational Policy at the University of Southern Maine, 48 percent of children who were being bullied experienced an improvement in their situation simply by reporting to the abuse to an adult, and only 15% indicated such a report exacerbated the situation.

But as schools increasingly employ anti-bullying programs that seek to stop bullying before it starts – an effective research-based approach – parents whose children nonetheless are victimized often feel, like the Cascones, that the school has let them down. Schools do need to balance the interests of students, and expelling a bully is a drastic measure that can have community-wide repercussions. Yet, dissatisfied parents should remember that the school district is but one piece of the mosaic of government. Other options are available.

J. Peter Sabonis is staff attorney at KIDS Legal of Maine, a project of Pine Tree Legal Assistance that serves low-income children. For more information about the rights of children and their parents in Maine, visit www.kidslegalaid.org.

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