What if My Child is Being Bullied?

Unfortunately, addressing a bullying situation can be challenging and frustrating.  Laws that address bullying are too often ineffective and unenforced.

Pennsylvania and Delaware both have statutes that are characterized as anti-bullying statutes, but neither statute is robust.  Mostly they require school districts to have anti-bullying policies, maybe some reporting requirements for incidences of bullying, and salutary language about safety, etc.  In my experience, schools often, even routinely, ignore these statutes.  Unlike special education laws, or general anti-discrimination laws, neither Pennsylvania nor Delaware allow parents to sue a school district to enforce an anti-bullying statute.

The courts haven’t been much better.  In the important case of Morrow v. Balaski, two sisters were viciously bullied by a schoolmate who was twice adjudicated a delinquent because of the bullying.  The bully was, nonetheless, allowed to return to school despite a policy that required suspension.  Rather than removing the bully from school, the school told the parents that they may need to remove their children to protect them.  The parents brought a claim for violation of the students’ constitutional rights.  Several times in its opinion, the Court expressed its sympathy for the students and parents, but in the end upheld a lower courts dismissal because existing constitutional precedent doesn’t cover bullying in most cases.

Parents can sometimes sue using state civil laws alleging claims for assault or battery.  However, these lawsuits can be too expensive for many parents, and unlike anti-discrimination statutes, parents normally cannot get reimbursed for their attorney’s fees even if they win their case.

So what can parents do?  First, it is important to create a paper trail of incidences of bullying.  Schools are supposed to automatically create a record when bullying is reported, but often they do not.  Emails or letters sent to a school can help show that the school had notice of the problem before a lawsuit was brought and may help show that the school was indifferent or negligent.

If a student has an IEP or 504 plan, parents can sometimes sue for discrimination if the bullying can be linked to the student’s disability.  For example, if a student has a learning disability, and bullies are calling him or her “stupid” or “dumb,” this may be a type of discrimination based upon a disability.  If it is, parents may be able to sue under anti-discrimination statutes.  These types of lawsuits require special notice, so again, a paper trail is important.

Parents can sometimes press criminal charges if their child has been touched in an offensive way or threatened, and a court may issue a no-contact order, but these can be hard to enforce in school.

Finally, although it’s more of a long-term strategy, parents can advocate for better laws to protect students against bullying, or at least serious enforcement of laws that already exist.




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