School Liability for Student Cyberbullying
UPDATED: November 3, 2014
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Just like not every instance of teasing or "drama" between children and teenagers is bullying, not every instance of bullying imparts liability on a school or school district. And schools are not liable for the misconduct of students. They are only liable for their own misconduct in responding to harassment.
While most states have anti-bullying laws, these laws do not provide for private causes of action. Thus, lawsuits must be brought under state or federal anti-discrimination laws or as common law tort claims. This means that the victim must be a member of a protected class and the bullying must be based on the student's membership of that class. Or, in the case of a tort claim, the victim must have suffered physical harm. There are a number of other general requirements that must be met before a school or school district will be held liable.
When Are Schools Liable?
First, school districts will only be liable for bullying that occurs on school grounds or when the victim is in the school's custody. In addition to school buildings and grounds, schools will be liable for bullying that occurs on the school bus and during extracurricular activities or at school-sponsored events.
In some instances, schools may also be held liable for bullying that occurs over the Internet, or cyberbullying. For example, if the cyberbullying took place over a school computer or laptop, the school or school district may be liable. They may also be liable when the bully uses his or her own device, such as a cell phone, if the harassing messages or postings were done on school grounds.
Recipients of federal funding, such as public school districts. may be liable in monetary damages for deliberate indifference to known instances of harassment based on a protected class, but only for "harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." This usually requires physical harm.
Knowledge Key to Liability
Even where there is physical harm from the bullying, schools and school districts will only be held liable where they had actual or constructive knowledge. Moreover, who must have notice of the harassment varies. In a federal lawsuit, a school district may be liable only if an official with authority to address the bullying and do something about it had actual knowledge.
Finally, school officials and school districts may be immune from a lawsuit. 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.