Jim Adler | The Tough, Smart Lawyer
By Jim Adler November 10, 2016

School bullying is a national epidemic. But victims and their parents are fighting back with court cases involving school bullying.

In the 1990s, the United States Supreme Court set standards for prevailing in such lawsuits.

That includes parents proving that the bullying was so pervasive and so severe that, in effect, it deprived the student of access to education.

As for freedom of speech rights provided by the First Amendment to the U.S. Constitution, these rights do not protect all speech, including some types of threats. Thus, bullying cannot hide behind the First Amendment.

Targets of a Bullying Lawsuit

Civil lawsuits over bullying in school can target not only the students responsible for such bullying, but also the students’ parents, the school and its personnel, and the school district itself.

However, when bullying lawsuits target third parties such as schools or school districts, they often do not succeed.

Holding School Districts Responsible

Most school districts receive federal funding. That makes them required by federal law to address discrimination. In this respect, bullying can be considered a civil rights violation and a violation of federal law.

However, that doesn’t mean a school or a school district can be held responsible in a school bullying lawsuit. This is because there are high standards for holding school districts responsible for bullying.

Legal precedent holds that parents who sue a school district for their child’s bullying must prove that the school district had actual notice of harm to the child and that it was deliberately indifferent to threats of such harm. The latter can be difficult to prove in court.

Such high standards stem in part from the fact that school districts are government entities which are funded by tax dollars. Thus, they are given a degree of immunity. As a result, more often than not, school districts are not held legally liable in bullying lawsuits.

Holding Parents Responsible

That hasn’t stopped a national increase in lawsuits against school districts for bullying that caused emotional distress or physical harm to a student. But bullying lawsuits may have a better chance when targeting the bullying student and his or her parents.

In Texas, parents of bullying students may be held accountable in school bullying court cases. Plaintiffs can assert — and must prove — that the parents of a bully knew or should have known that their child was causing harm via bullying behavior.

As in any court case, evidence matters. The lengthier the child’s proven history of bullying, the more compelling the argument that the child’s parents should have intervened.

Texas Anti-Bullying Law

It’s believed that every state except Montana has anti-bullying laws, many of them passed in recent years as bullying incidents causing suicides made national news. Texas passed its own anti-bullying law in 2011.

As in other states, Texas’ anti-bullying law considers bullying to be physical conduct or verbal or written expression which physically harms another student or student’s property, or is sufficiently persistent to create a threatening or intimidating educational environment for the student.

Texas’ anti-bullying law also includes cyber-bullying, when students use social media and the Internet to bully others. Indeed, cyber-bullying is against the law.

Under Texas’ anti-bullying law, students who engage in bullying can be disciplined. In fact, part of the law, which is Texas Educational Code § 37.0832, allows school districts to transfer or move a bullying student, rather than move the victim, which often was done in the past.

Under Texas law, punishment for bullying or cyberbullying also can involve suspension or expulsion from school, as well as other administrative punishments.

Not everyone approves of Texas’ anti-bullying law. Some say the state’s bullying law addresses issues which should be handled on the local level by parents and school district officials. Each school district sets its own policies about bullying.

School Bullying Lawsuits

As for school bullying lawsuits, a child who bullies or cyberbullies may face civil liability in a civil lawsuit. Civil lawsuits do not involve the chance of incarceration, but rather financial payments for damages.

Bullying or cyberbullying also could lead to a defamation lawsuit asserting that false and defamatory statements caused harm.

In any civil lawsuit for bullying, a defendant may be ordered to pay damages. These can include compensatory damages to cover monetary losses caused by the bullying; punitive damages as a punishment to penalize the defendant; and court costs.

In general, filing a successful school bullying lawsuit depends on the individual circumstances of the case.

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