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SEE YOU IN COURT! - August 2008

August 12, 2008

Authors: Thomas B. Mooney

Pamela Parent was frustrated. Her son Tommy had come home from middle school starved, having “lost” his lunch money for the fourth time this month. Pamela sat Tommy down and insisted that he explain how he could possibly lose his lunch money so often. Tommy started to explain, but quickly he broke down and started to cry. Tommy explained that he had not actually lost his lunch money. Rather, each time, Joe Blow, a big eighth grader, had demanded that Tommy give him his lunch money or he would be sorry. Now, Pamela was irate.

The next morning, Pamela was in the office of Median Middle School, demanding to see Mrs. Principal. Pamela described her conversation with her son, and she asked Mrs. Principal what she was going to do to protect Tommy. Mrs. Principal invited Pamela to file a bullying complaint. “OMG, no!” responded Pamela. “Tommy has enough trouble without being labeled a tattle-tale. I just want the bullying to stop.”

Mrs. Principal urged Pamela to let her mention Tommy by name, but Pamela was adamant in her desire to protect her son. Mrs. Principal told her that she would do what she could, and she did. She called Joe Blow down to the office, and she told him that she had heard rumors about his taking lunch money. Joe vehemently denied doing that, and Mrs. Principal let him go with a warning.

Apparently, Joe had only taken lunch money from Tommy, and Joe promptly told Tommy that he would pay dearly for ratting Joe out. Now, even more frightened, Tommy told his mother about Joe’s threat. Pamela was outraged that Mrs. Principal had put Tommy at risk by telling Joe too much, and she demanded that a full-time paraprofessional be assigned to serve as Tommy’s bodyguard. Mrs. Principal told Pamela that Joe would be expelled as long as Tommy is willing to testify against Joe. A bodyguard, however, was not going to happen.

“We will see about that!” said Pamela. She went straight to Mr. Superintendent’s office, and made the same request. Mr. Superintendent listened politely, but he told Pamela that the school district would not be hiring a bodyguard for any student, including Tommy. But Pamela was not done, and she demanded a meeting with the Nutmeg Board of Education to appeal Mr. Superintendent’s ruling. Much to his chagrin, Mr. Superintendent found a Board policy providing that “Any citizen with a complaint may appeal to the full Board of Education for a final decision.” Reluctantly, Mr. Superintendent scheduled the meeting for Pamela’s appeal.

Pamela insisted that the Board meet with her in public session, and at the Board meeting, Pamela tearfully explained how Joe had repeatedly stolen Tommy’s lunch money. Pamela went on and on about Tommy’s need for a bodyguard, and ended her presentation by dramatically imploring the Board to save her son from further harm.

Most of the Board members looked uncomfortable and confused, but veteran Board member Bob Bombast was never at a loss for words. He thanked Pamela for her presentation, and he told her that she had convinced him that, without a bodyguard, Tommy is at risk. Sadly, Bob lamented, the Board’s role is to set policy, not to assign paraprofessionals, and he wished Pamela and Tommy good luck. With that, Mr. Chairman promptly called for a motion to adjourn and ended the meeting. Did the Board do its job here? 

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Bob Bombast’s statement as to the Board’s policy-making role was on target. However, the Nutmeg Board should rethink how it fulfills that role.

First, the definition of “bullying” has changed once again, and boards of education must amend their bullying policies to reflect the new definition and to address some other changes as well. Effective July 1, the focus of the definition of “bullying” shifts from the victim to the alleged bully. Now, “bullying” no longer requires that acts be repeated against the same student over time. Rather, “bullying” is defined as “any overt acts by a student or a group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school-sponsored activity or on a school bus, which acts are committed more than once against any student during the school year.” (Emphasis added).

In addition, the statute was amended in various other ways, including a requirement that the principal designate the personnel responsible for investigating bullying complaints, and that districts implement a bullying “prevention and intervention strategy.” The statute also provides an expansive definition of the term, prevention and implementation strategy. Boards of education must now revise their policies to assure compliance with all of these statutory changes.

Here, the Nutmeg Board was bound by its ill-advised complaint policy, which permits any disaffected parent or other person to demand an audience with the Board. Board members certainly want to be responsive to parent and other concerns. However, it is important that boards of education retain control over their agendas. It is appropriate to have a complaint policy that references the chain of command, and the boards of education may even wish to include provision for a hearing at the board level. However, boards of education should not agree simply to hear any and all complaints. Rather, any such complaint policies should provide that board hearings may be requested, and the board of education should retain control over whether to grant an appeal and have a hearing. Whenever the complained-of decision is an administrative responsibility, such as the suspension of a student or the assignment of a staff member, the board of education may be well-advised to decline to hold an appeal hearing.

Bob Bombast also created a liability problem. After hearing only from Pamela, he conceded that Tommy was at risk, a dubious premise. Now, if special steps are not taken and Tommy is hurt, Bob’s words will come back to haunt the Board.

The Board also erred in acquiescing to Pamela’s demand that the hearing be held in public. Under the Freedom of Information Act, if a board of education wishes to discuss an employee, that employee may require that the discussion be held in open session. However, discussion of student matters is not subject to the same limitation. Here, the Board had the right to convene into executive session, which would have permitted the Board to discuss the whole situation, including Joe Blow.

Finally, Pamela confronts a dilemma. Absent a confession from Joe Blow, Tommy must testify as to the facts, either to the administration or, if an expulsion hearing is held, to the Board. Consistent with established due process principles, the statutory amendments to the bullying statute include the admonition that no disciplinary action may be taken solely on the basis of an anonymous report.

Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.

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