On January 14, 2010, a fifteen year-old girl in South Hadley, Massachusetts named Phoebe Prince committed suicide after she had been the target of bullying by several older students over the course of several months.  The bullying took the form of verbal harassment and physical abuse and occurred both on and off school grounds   A public outcry followed when it became widely reported that many individuals, teachers and students alike, were aware that Prince was being bullied.  After investigating, the local District Attorney took the extraordinary step of filing criminal charges against an 18 year-old student and two 17 year-old students for various offenses including statutory rape, criminal harassment, disturbance of a school assembly and violation of civil rights arising out of the treatment of Phoebe Prince.   Three other female students were charged with juvenile offenses, such as violation of civil rights with bodily injury resulting and stalking.  Those charges are still pending as this publication goes to press.  On April 29, 2010, the Massachusetts legislature responded by unanimously passing a comprehensive anti-bullying statute.  Given the rise of cyberbullying and the media attention paid to the Phoebe Prince matter and other publicly-reported tragedies, it is clear that school bullying will be a topic that is widely discussed in education circles for the foreseeable future.  Is your school district doing everything at your disposal to combat bullying?

The Pennsylvania Legislature was a year or two ahead of the trend in addressing school bullying.  Act 61 of 2008 amended Chapter 13 of the School Code to require that all public School Districts adopt a policy or amend an existing policy concerning bullying.  The deadline to adopt or revise a bullying policy was January 1, 2009, and a District’s bullying policy must meet the following requirements:

  1. The policy must describe the consequences for bullying and address the District’s approach to prevention, intervention and education regarding bullying
  2. The policy must identify the appropriate staff member to whom reports of bullying should be made;
  3. The policy should recite the Act’s definition of bullying, which must include harassing activities conducted through the use of electronic devices (cyberbullying) and may define “school setting” to prohibit bullying both on- and off-school premises, if the off-school premises bullying impacts a student’s ability to receive an education or disrupts school operations.
  4. The policy must be specifically incorporated into the District’s Code of Student Conduct;
  5. The policy must be available on any District-maintained website and be posted or available within each classroom;
  6. The policy must be posted in a prominent location in each District school building in a place where notices are typically posted;
  7. Districts must discuss the provisions of their policy within 90 days after adoption, and thereafter at least once each school year; and
  8. Districts must review their bullying policy every three (3) years and provide a copy of the policy to the Secretary of Education. 

There was a rush by many Districts following the passage of Act 61 of 2008 to make sure a compliant policy was in place by the deadline, but what has your District done since that time?  Has your staff been trained in combating bullying or the proper responses when observing bullying or receiving complaints?  Have you sought out specialized training or seminars for your administrative or guidance staff?  Has your policy been posted as required and reviewed with the student population?  Is the prevention and combating of school bullying a topic of discussion in your in-services, faculty meetings or student assistance meetings?  Have you reviewed the effectiveness of your complaint procedure to see whether your staff is responding promptly and appropriately to any complaints received?  It’s not difficult to meet the technical requirements of Act 61 by adopting, posting and discussing an anti-bullying policy, but has your District been able to take the advanced step of inculcating the spirit of the policy into your operations?

In general, the obligation faced by districts in addressing bullying complaints mirror the requirements imposed in responding to a sexual harassment complaint lodged by an employee or student.  A District must be able to demonstrate that it has in place an effective complaint process whereby complaints can be made to a designated individual or individuals.  If a complaint is received, a District is obligated to investigate the complaint thoroughly and promptly and to take proper remedial action if the allegations in the complaint are founded.  A District can fulfill its legal obligations regarding harassment complaints by showing that a complaint was either not reported or brought to the District’s attention, or by showing that the District investigated a complaint and acted appropriately in response.  Bullying complaints should be addressed in the same manner, by ensuring that every complaint is thoroughly investigated by administration.  To accomplish this, you should make sure that any bullying complaints received by teachers, counselors or other staff are communicated to the principal or other administrator charged with investigating complaints. 

With bullying, the conduct often extends outside of the school day into times and places not usually the subject of school intervention.  The amendments to the School Code permit Districts to go further than was previously thought to be possible in disciplining bullying.  Specifically, the new law permits a District’s anti-bullying policy to encompass acts that occur outside of a school setting if they cause the same impact on student learning and disruption of school operations as on-site bullying. This gives more authority to school officials to discipline off-school conduct if it can be shown that the conduct has an impact on school, and is particularly useful in the context of cyber-bullying.  If you intend to discipline off-school conduct under your bullying policy, you must be certain to document specifically how the off-school conduct has disrupted school operations or prevented a student from receiving the full benefits of education.  Further, as discussed in the Litigation Alert on page _ of this edition of the Education News, the two student free speech cases currently pending before the full Third Circuit Court of Appeals may impact the ability of Districts to take disciplinary action against off-campus speech.  We will update this matter in future editions of Education News.

In anticipation of the upcoming school year, your District’s administrative team should take a look at your school operations and decide whether more can be done to combat bullying.  In planning your in-services, orientations and training sessions, you should check to see whether your District is continuing to train staff in bullying response and prevention.  Right now, before it becomes a problem, is the time to ensure that you’re doing what you can.

Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.