Federal and State Anti-Bullying Laws
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Forty-nine states have enacted anti-bullying laws. These laws require schools to address and prevent bullying by imposing duties on school administrators and employees. Montana is the only state that has not yet done so.
While each state law is different, they do share some key components, beginning with a definition of bullying. Some states, however, allow local school boards to define bullying.
Procedures for Reporting Bullying
States laws generally require that school officials report bullying—incidents that they witnessed and those they know about—to a designated official. They also provide a procedure for students, parents, and officials to report bullying. A procedure for investigating and responding to these reports is also provided. Many require that the parents of the victim and the bully be notified, along with law enforcement if appropriate. This can also include a procedure for referring the victim or the bully to counseling or other mental health services where appropriate.
Anti-Bullying Laws and Lawsuits
Four states have laws that prohibit bullying based on sexual orientation and gender identity. Ten states have laws that prohibit discrimination based on sexual orientation and gender identity.
There is also generally no private right of action under state laws. Many states, however, recognize common-law tort claims that can be used to hold school districts accountable for allowing bullying to occur. These can include failure-to-supervise claims and claims for negligent or intentional infliction of emotional distress.
Federal Anti-Discrimination Laws and Lawsuits
While most states have enacted anti-bullying laws, there is no federal law that specifically applies to bullying. Federal anti-discrimination lawsuits can provide protections for victims of bullying by imparting liability on the school. If the bullying is based on a student's race, color, national origin, sex, disability, or religion, the bullying may be considered harassment:
- Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin;
- Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex;
- Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability; and
- Title II of the Americans with Disability Act of 1990 also prohibits discrimination on the basis of disability.
A school district can violate one of these civil rights statutes when the bullying creates a hostile environment and the school encourages, ignores, or does not adequately address the behavior.
While there is no federal statute specifically addressing harassment based on sexual orientation, if the bullying is a form of gender-based stereotyping—harassment because the student does not conform to traditional gender stereotypes—it may be covered by Title IX.
Bullying based on race, color, national origin, sex, disability, plus religion, may also give rise to a claim under Section 1983 for violations of the student's constitutional right to equal treatment under the Fourteenth Amendment's Equal Protection Clause or the student's right to substantive due process under the Due Process Clause.
These federal statutes generally only cover bullying that occurs at school, on the bus, or at school-sponsored events. Claims may generally only be brought against the school district or board of education, not individual school officials.