By: Wolf Chivers

Why is it Hard to Sue a School District?

Where should parents go for help if their child is being bullied at school? Many parents might start with the school itself. All 50 states have anti-bullying laws that require schools to take action against bullying. Federal law provides additional protections against bullying based on protected categories, such as sex or disability. Despite such laws, bullying remains common, and school responses can be anemic.

A school’s failure to respond to bullying can open it to liability. However, there are barriers for families who try to sue school districts.The first barrier to suing school districts is sovereign immunity, which is the principle that governmental entities, including school districts, cannot be sued without their consent. Even if sovereign immunity does not apply (perhaps for tort claims or violations of civil rights statutes), it is incredibly difficult to bring general claims of educational malpractice—alleging the school provided a substandard education—against school districts. Consequently, unless the bullying violates federal anti-discrimination laws, the most common state-law option left available to parents is to allege that the school was negligent. 

Negligence claims require showing that the school owed a duty of care to the student, the school breached its duty to the student, and that the school’s breach of duty caused the student harm. That schools have a duty to respond to bullying is fairly clear; schools have a general obligation to provide for the safety of students, and many states, including Washington, require that schools intervene against bullying. In a standard negligence case, a breach of duty is caused when a person fails to act as a reasonable person would, which a school might do by ignoring reports of bullying, or not providing adequate supervision, or in a variety of other ways.

However, with the rise of social media has come a new form of bullying—cyberbullying. Cyberbullying has unique aspects that make it particularly challenging for schools to address, and might make it harder for parents to claim negligence.

Difficulties for Schools

Certain realities of cyberbullying are likely obvious at first glance. For instance, it can happen outside school hours, in the anonymity of mobile devices, far from any possible school personnel notice.

Beyond the obvious, however, schools may not be able to do as much to respond to cyberbullying as victims may want. Even minor students have constitutional rights, including the First Amendment right to free speech. There are certain circumstances in which schools can suppress student speech, but in order to do so, a school must be able to show that the student’s expression would “materially and substantially disrupt the work and discipline of the school.” 

The First Amendment’s protections mean that schools are generally not allowed to discipline students for activity that happens off school grounds and/or outside school hours. During the school day, while students are in their charge, schools stand in loco parentis; that is, in a parent’s role. However, once students leave school, giving schools the right to continue to regulate certain student speech may mean the student cannot engage in that kind of speech at all. In other words, in order to regulate a student’s expression, especially outside of school, the school has to be able to show that the conduct could be expected to disrupt school work or the school’s discipline. 

Where Does School Control End?

Technology, however, has complicated the formerly-clear delineation between in-school and out-of-school activities. This has led to First Amendment lawsuits against schools who have attempted to discipline students for online behavior. As a result, school policies for responding to online activity have to be highly precise and detailed to avoid undue infringement on students’ First Amendment rights.

The growth of technology has created a challenging conflict between a school’s responsibility to protect its students and its responsibility to not overreach into violating its students’ constitutional rights. Even if the school is aware of cyberbullying and willing to take action, it may be more difficult for the school to intervene if the cyberbullying takes place outside of school. It places schools in a proverbial “damned if you do, damned if you don’t” situation, facing either a potential negligence lawsuit for failing to intervene or First Amendment lawsuits for intervening. 

Difficulties for Parents

Cyberbullying also likely presents parents with challenges when pursuing negligence lawsuits. Thus far, most cyberbullying lawsuits have centered around the aforementioned First Amendment claims, often because negligence suits settle before they can set precedent. However, it is still possible to see how cyberbullying may present future difficulties for negligence claims.

The aforementioned negligence elements apply in cyberbullying cases but it may be more difficult to determine what constitutes “reasonable action” and to show that the school’s conduct harmed the student when cyberbullying is involved.

First, what is reasonable action for school officials? The “reasonable person” standard does not require the person to be perfect, but only asks that they take sensible action under the circumstances. Many school employees are poorly trained on responding to bullying, which potentially points to a school district failing to act reasonably. However, it may not entirely be the district’s fault when it comes to cyberbullying, given the lack of guidance from the courts about where the boundaries of discipline begin and end. A school’s options for responding to cyberbullying are narrow and highly specific. If a school official fails to respond, they may not meet the reasonable person standard in a traditional bullying case, but may meet it in a cyberbullying case.

The second challenge parents may face in cyberbullying negligence suits is proving the school’s failure to act caused the student’s harm. The school’s action or inaction must be the proximate cause—that is, enough of a cause for the school to be liable. Proximate cause is complicated, but the first step is to ask whether the student’s harm would be prevented but for the school’s negligence. Cyberbullying may make even that first step unclear. It may be fairly easy to envision how a school employee’s inaction could be a but-for cause of a student’s harm in a traditional bullying incident at school; if a teacher sees an altercation, fails to intervene, and one student gets pushed down the stairs, the chain of causation is relatively clear. In contrast, if a student is being bullied by a classmate via text late at night, suggesting that the school could have stopped the bullying by issuing a suspension, for example, is much more tenuous. Perhaps school discipline could have an effect, but it is less clear that the school’s inaction is a but-for cause of the harm. 

Conclusion

In short, cyberbullying’s unique characteristics create additional challenges for schools and parents alike in trying to combat cyberbullying. Cyberbullying is a serious problem that schools and the legal system are currently ill-equipped to handle. Everyone badly needs clear guidance from the courts on how schools are allowed to respond to cyberbullying, and courts need to understand the challenges distraught parents may face in trying to hold school districts accountable.

#schoollaw #cyberbullying #bullying #negligence #firstamendment