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SEE YOU IN COURT! - July/August 2011

July/August 2011

Authors: Thomas B. Mooney

Joe Blow is a big, stupid, mean fifth-year senior at Nutmeg High School. At least that is what some of his teachers and fellow students have thought. Last month, for example, he was suspended for a day after he spat into the lunch of a particularly vulnerable sophomore with poor self-esteem and worse social skills. Last week, he pushed Ned Nerd to the floor during passing period, scattering the poor student’s books, which were then kicked about by students rushing to class.

When Joe was sent to the office to answer for this latest offense, however, Joe shocked the assistant principal by breaking down. Joe tearfully explained that he has been so frustrated at being unable to read that he picks on other students just to get attention. “I have been pretending to be a tough guy,” Joe sobbed, “but I just wanted to learn like the other kids.” Not knowing what to do, the assistant principal gave Joe a half-hearted hug and a Kleenex, and then suspended him pending expulsion.

Meanwhile, Ned Nerd had been busy. Unaware of Joe’s epiphany, Ned set up a Facebook page, “Don’t Get Mad, Get Even,” on his home computer, on which he invited other students to insult Joe. Ned and his friends were gifted (no surprise there), and some of them posted Photoshopped images of Joe in embarrassing poses. Suddenly, Joe was the laughingstock of the school, and he couldn’t go anywhere in the school without being mocked by Ned’s suddenly empowered friends.

Mr. Superintendent and Ms. Principal had enough of this conflict, and they brought both Joe and Ned to the Nutmeg Board of Education for expulsion. Joe’s hearing was first, and he was represented by local legal scourge, Bill Alot.

“How dare you?” Bill intoned at the beginning of the hearing. “You victimized poor Joe by failing to identify his learning disability. Of course, we will sue the Board and every teacher and administrator we can find. But you will make matters far worse if you compound your error by punishing Joe for what was simply the manifestation of your gross negligence.”

During the hearing, the Board members then heard about bad Joe’s misconduct from the Administration, and they heard about good Joe’s suffering from Bill. By the end of the hearing, their heads were spinning, and the Board members concluded the hearing by saying that they had a lot to think about before making a decision.

Next, the Board members conducted the expulsion hearing for Ned Nerd. Mr. Superintendent argued that Ned had engaged in cyberbullying of Joe, and that such conduct could not be tolerated. Aspiring to go to law school some day, Ned represented himself. He calmly questioned whether the Board had jurisdiction over his Facebook activity. “I would point out to the honorable members of the Board that we live in a free country, protected in our speech by the First Amendment, the touchstone of liberty. I submit that any attempt to silence me will result in a ginormous constitutional claim. In addition, my parents and I will not hesitate to bring suit for negligence and infliction of emotional stress based on your inadequate supervision of Joe, which of course led to my humiliation in school, for which I am in therapy.”

Mr. Superintendent didn’t have much to say to that, and the Board was left to decide both cases. Who’s the bully here?

* * *

As the Board struggles through this thicket, it must be aware of a comprehensive revision of the state law on bullying, effective July 1, 2011. The General Assembly has outdone itself with a new law that will bedevil school officials and expose school districts to potential liability. We can only hope that this new approach has the intended effect of reducing the incidence of bullying in our schools.

Public Act 11-232 amends Section 10-222d to adopt an entirely new definition of “bullying,” which is then followed by seven other defined terms. “Bullying” is now “(A) the repeated use by one or more students of a written, oral, or electronic communication, such as cyberbullying, directed at or referring to another student attending school in the same school district, or (B) a physical act or gesture by one or more students repeatedly directed at another student attending school in the same school district, that: (i) Causes physical or emotional harm to such student or damage to such student's property, (ii) places such student in reasonable fear of harm to himself or herself, or of damage to his or her property, (iii) creates a hostile environment at school for such student, (iv) infringes on the rights of such student at school, or (v) substantially disrupts the education process or the orderly operation of a school.” This expansive definition of “bullying” includes, but is not limited to actions that are based on “any actual or perceived differentiating characteristics.” The new law lists fifteen such characteristics as examples of such characteristics.

Under the new law, school districts have many new responsibilities relative to bullying claims. Instead of a policy concerning bullying, school boards must now adopt a “safe school climate plan,” which includes most of the obligations from the prior law as well as a host of new obligations. Public Act 11-232 is fourteen pages long, and description of all of the many new obligations is beyond the scope of this column. But Joe and Ned’s cases underscore some of the new provisions in the law.

First, bullying is broadly defined. Conduct that causes “emotional harm,” if repeated, is now considered bullying. We need to sort out what this means, of course, but presumably concerned parents will claim such harm in many cases of hurt feelings.

Second, while the old law permitted policies to address bullying off-campus, school officials are now obligated to deal with “cyberbullying” or other off-campus bullying conduct “if such bullying (i) creates a hostile environment at school for the student against whom such bullying was directed, (ii) infringes on the rights of the student against whom such bullying was directed at school, or (iii) substantially disrupts the education process or the orderly operation of a school . . . .” Determining whether such conduct has such effects will be difficult and contentious in many situations.

Boards of education must adopt their safe school climate plans by January 1, 2012, and by July 1, 2012, the superintendent must appoint a “safe school climate coordinator” with district-wide responsibilities. As of July 1, 2012, at the school level, the principal (or designee) will serve as the “safe school climate specialist,” and each school must have a committee to review bullying complaints and the implementation of the plan. However, the bulk of the obligations are effective now. Good luck to all of us.

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