January 2014 Bar Bulletin
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January 2014 Bar Bulletin

Student Bullying Cases: Federal v. State Court

By Kevin B. Gordon


Harassment and bullying have long been used to describe abhorrent peer-on-peer behavior. Public schools' responses to such behavior have evolved from ignoring it as a regrettable part of growing up, to handling cases under discipline codes, to taking more proactive actions through education to prevent antisocial behavior.

Increasingly, schools find themselves facing lawsuits regarding alleged instances of abusive behavior between students. Harassment and bullying are general categories under which specific behaviors may fall depending on the motives of the aggressor. "Harassment" has become a legal term of art to describe a course of conduct designed to harm the target or induce the target to take desired actions. It is based on protected characteristics, e.g., race, sex, national origin, religion and disability.

"Bullying" includes similar types of behavior, but is not limited to protected characteristics. It includes any actual or perceived differences or imbalances of power between the bully and the target. Common examples include physical size, intellectual function, social grouping or economic status. Bullying may take many forms, including physical assault, threats, defamation, public humiliation and social isolation.

In the end, whether the label attached to the course of conduct matters depends on the cause of action to be pursued and the court in which to file the complaint. There is no federal anti-bullying statute. If the plaintiff is unable to tie the bullying behavior to a protected characteristic, a harassment-based claim cannot be filed in federal court. Also, as discussed below, despite the relaxed pleading standards in federal court, plaintiffs may ultimately find it difficult to assert causes of action based on federal civil rights statutes or constitutional principles.

Harassment and Discrimination Claims

The most common federal causes of action are based on harassment or discrimination under Title VI (race/national origin),1 Title IX (sex),2 Section 504 of the Rehabilitation Act (disability),3 and the ADA (disability).4 In these cases, the plaintiff must allege:

(1) the school officials were deliberately indifferent,

(2) to peer-on-peer harassment based on a protected category characteristic,

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