By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

I am a middle school principal and I have been a building administrator for seventeen years now. My experiences dealing with student behaviors have been rich and varied, and like many educators, in retirement I could write a book about student misbehavior.

There are some stories, however, that rise to the top and bring notoriety to the student. For example, we had one male student engaged in incredibly gross behavior in the bathroom last year. (I will forego the detailed description given my understanding that Legal Mailbag is G-rated). His classmates learned about his abhorrent behavior (through his own admission, of course), and they have been teasing him about the incident. Apparently, the student didn’t mind too much, and he never complained about the teasing. However, the situation begs the question – if a student is teased after doing something so strange and against all social mores, can the student make a claim of bullying against those who say mean things to the student after the fact?

Just to add another example, last year, a female student was filmed on a cell phone repeatedly engaged in a perverse act. This video got around, and now the girl is uncomfortable attending school. Can she claim bullying even after she did this? Are there certain behaviors in which students engage that are so extreme as to render any claim of bullying null and void?

I am predicting that Legal Mailbag will say that this is complicated, and that there is the law and the reality of the world we live in. But maybe some students should just get what they deserve.

Signed,
Just Deserts

Dear Just:

There are certain situations in the law when people must share the blame for their misfortune. In negligence law, for example, there is a concept of comparative negligence. Under that principle, when a plaintiff is partially at fault for causing an accident, the plaintiff’s recovery is reduced proportionately for the amount he or is at fault (long as the plaintiff is not more than half to blame (51% or more at fault), in which case the plaintiff recovers nothing).

If one is in an uncharitable mood, one could try to take a comparative negligence approach to the bullying that you describe and moderate any intervention because the student’s own inappropriate conduct invited the bullying comments. That would be wrong.

Not all teasing is bullying, of course, and Legal Mailbag is skeptical whether the teasing experienced by the boy would meet the statutory definition of bullying. But it may, and the situation with the girl as you describe it is quite concerning, because the girl is now uncomfortable about coming to school. Teasing in that case could well rise to the level of bullying that you would substantiate.

By way of reminder, “bullying” is defined in Conn. Gen. Stat. § 10-222d(a)(1) as:

(1) “Bullying” means an act that is direct or indirect and severe, persistent or pervasive, which (A) causes physical or emotional harm to an individual, (B) places an individual in reasonable fear of physical or emotional harm, or (C) infringes on the rights or opportunities of an individual at school.

Legal Mailbag notes that the standard for substantiating conduct as “bullying” is high. To be “bullying,” the conduct by one or more students against another must be “severe, persistent or pervasive.” Moreover, the conduct must cause “physical or emotional harm to an individual” (or place a student in reasonable fear of such physical or emotional harm, or infringe on the rights or opportunity of the student at school). However, there is no reference in the statute to the situation in which victims share blame because they did something themselves that caused notoriety and invited a response by other students.

You should investigate both situations. In both cases, you must consider the statements or actions by other students in response to the extreme conduct by the male or female student respectively. Were those statements or actions “severe, persistent or pervasive”? If so, and only if so, you must then ask whether they caused “physical or emotional harm” to the student who engaged in the odd conduct.

From what you shared in your letter, it may well be that the teasing of the male student did not cause emotional harm, given that the student himself laughed the teasing off. But you will not be able to answer that question until you investigate. The situation with the female student seems more serious, given your report that she is now uncomfortable coming to school. However, again you must investigate.

If you substantiate bullying by other students in either case, you will have to comply with the following requirements set forth in Conn. Gen. Stat. § 10-222d:

• You must notify the parents or guardians of students who commit any verified acts of bullying and the parents or guardians of students against whom such acts were directed of the results of such investigation not later than forty-eight hours after the completion of your investigation, and
• You must invite the parents or guardians of the student who was bullied to a meeting to tell them the measures being taken by the school to ensure the safety of their child and policies and procedures in place to prevent further acts of bullying, and
• You must invite the parents or guardians of a student who committed any verified act of bullying to a meeting, separate and distinct from the meeting with the parents or guardian of the victim, to discuss specific interventions undertaken by the school to prevent further acts of bullying.

In short, you must follow the established protocol for investigating and adjudicating bullying complaints as set forth in your Board policy and as required by the statute. The fact that a victim’s bizarre conduct may have invited bullying conduct by other students is irrelevant to your fulfilling your statutory duties under the bullying statute.