Basic Factors in Evaluating a Bullying Claim

Bullying in school is a nationwide problem that has gained much media attention in recent years. While the words "bully" and "bullying" get thrown around a lot, not every instance of teasing or conflict between peers is bullying. Likewise, not every instance of bullying is actionable in court.

Anti-Bullying Laws

The U.S. Department for Health and Human Services defines bullying as "unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance" and "is repeated, or has the potential to be repeated, over time."

While most states have anti-bullying statutes, there is no federal anti-bullying statute and most state statutes do not provide for a federal cause of action. Thus, lawsuits must be brought under federal anti-discrimination statutes, the U.S. Constitution, and state common law.

But this does not mean that state and local laws and policies are not relevant. When evaluating the strength of a bullying claim, you'll need to be familiar with your state's anti-bullying law and the school's policy. States define bullying differently and the school's policy will tell you what the school's responsibilities were.

Evaluating a Harassment Claim

Regardless of the type of action you plan on bringing, you'll first want to look at the nature of the bullying. Cases involving physical harassment, for example, are more likely to succeed than those involving verbal and social harassment. And in many jurisdictions, a plaintiff cannot recover in tort unless there has been physical harm. But longstanding verbal or social harassment can strengthen a claim involving physical harassment. And cases in which the victim has been harassed for a significant period of time are more likely to succeed than those involving single instances of harassment.

Second, because school districts will only be liable for harm when it can control the situation—on school grounds or when the student is in the school's custody. This generally includes extracurricular activities and, sometimes, the Internet. The school may not only be liable for cyberbullying carried out through school computers, but also personal devices if done on school grounds.

Next, the victim must have suffered damages under the law in order to recover. Thus, you'll need to look at what harm the bullied victim has suffered. Common in bullying lawsuits are physical injuries, failing grades, withdrawal from school, and depression, anxiety or other psychological harm.

Is the School District Liable?

Often the hardest element to prove is knowledge by the school district. The school district is generally only liable where it had actual or constructive knowledge of the bullying. Unfortunately, students who are being bullied are often too afraid to report it. And who must have had knowledge differs depending on the case. In some federal claims, the school district must have had knowledge. In other cases, however, any responsible employee must have knowledge. This will differ depending on the school's policy and how the school is structured. Moreover, some states grant school districts and school boards absolute immunity for their employees' torts. Others grant qualified immunity when employees are performing their discretionary functions as long as they did not act maliciously, in bad faith, or with wanton or reckless disregard.

When Litigation Is Not the Best Option

Finally, as in any case, you'll have to consider the needs of the victim—a child or teenager who is suffering. Is the child or teenager able to participate as a plaintiff? If not, there may be options outside of litigation.