Texas laws require schools and school administrators to take actions to prevent bullying and to investigate reports of bullying. The law breaks bullying into 3 components:
Conduct: Physical conduct that occurs at school, a school function, or in a school vehicle. – Written, verbal or electronic expression.;
Motivation: Bullying involves exploiting an imbalance of power. – Exploit: “to use selfishly for one’s ends.” – Exploitation involves intentional conduct.;
Effect: The conduct must either 1) interfere with the student’s education; or 2) substantially disrupt the operation of the school.
Regarding interfering with a student’s education, a school attorney said that bullying is: “Physical harm to the student; or damage to the student’s property; or reasonable fear of one of the above; or the bully has created an intimidating, threatening or abusive educational environment for the target student due to behavior that is severe, persistent and pervasive.” He noted that, “When a student voluntarily forgoes a school activity for fear of, or in response to, perceived bullying, you have some evidence of an intimidating, threatening, or abusive educational environment.”
He then stressed the importance of school staff knowing the district policy. This should include procedures for notice to parents of a bully and targets; actions a student can take to get help or intervention in response to bullying; and procedures for counseling options for victims, bullies, and witnesses. Also a victim who is found to have “used reasonable self-defense” is not to be disciplined. He also talked of the importance of periodic follow-ups with the person who reported bullying and document the contact and what the person said.
It was noted that a student in special education “may not be disciplined for (bullying, harassment or making a hit list) until an ARD committee has been held to review the conduct.” TX Education Code (TEC) 37.001(b-l). He noted that this student is a candidate for a behavior intervention plan (BIP).
Regarding training the attorney said “Train EVERYONE. This means bus drivers, subs, clerical staff, custodial staff, and paraprofessionals. Remind counselors and nurses not to overemphasize confidentiality. If they know about bullying, they need to let the principal know.”
Texas Education Code (law) (TEC)
“bullying” means, … engaging in written or verbal expression, expression through electronic means, or physical conduct that occurs on school property, at a school-sponsored or school-related activity, or in a vehicle operated by the district and that:
(1) has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; or
(2) is sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.
(b) Conduct described by Subsection (a) is considered bullying if that conduct:
(1) exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and
(2) interferes with a student’s education or substantially disrupts the operation of a school. TEC 37.0832(a)
The board of trustees of each school district shall adopt a policy, including any necessary procedures, concerning bullying that:
(1) prohibits the bullying of a student;
(2) prohibits retaliation against any person, including a victim, a witness, or another person, who in good faith provides information concerning an incident of bullying;
(3) establishes a procedure for providing notice of an incident of bullying to a parent or guardian of the victim and a parent or guardian of the bully within a reasonable amount of time after the incident;
(4) establishes the actions a student should take to obtain assistance and intervention in response to bullying;
(5) sets out the available counseling options for a student who is a victim of or a witness to bullying or who engages in bullying;
(6) establishes procedures for reporting an incident of bullying, investigating a reported incident of bullying, and determining whether the reported incident of bullying occurred;
(7) prohibits the imposition of a disciplinary measure on a student who, after an investigation, is found to be a victim of bullying, on the basis of that student’s use of reasonable self-defense in response to the bullying;” TEC 37.0832(c)
The procedure for reporting bullying must be posted on the district’s website to the “extent practicable”, basically only if they do not have a website.
Districts may transfer a student who has engaged in bullying to 1) another classroom at the campus where the victim was assigned at the time of the bullying; 2) another campus, in consultation with the parent of the bully. Parents are also to have the opportunity to transfer their child to another campus. The health curriculum must include essential knowledge and skills that include evidence-based practices that will effectively address awareness, prevention, identification, self-defense in response to, and resolution of and intervention in bullying and harassment.
Most schools in Texas use policies developed by the Texas School Board Association. Schools can add detail to policies, designated by the notation “(Local)”. The policy for bullying is at FFI (Local). The policy on discrimination and harassment involving student is at FFH. Policy FFI (Local) requires an administrator to prepare a written report which includes a determination of whether bullying occurred. I believe that a parent should be able to get a copy of this report, however, the names of all students, except their child’s should be marked out due to confidentiality rules. It is important that parents get copies of these policies, and district procedures to know what the school and staff are required to do regarding bullying.
Federal Guidance on Bullying
In an 8/20/13 “Dear Colleague” letter the federal Office of Special Education and Rehabilitative Services (OSERS) says “bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of a free appropriate public education (FAPE) under the IDEA that must be remedied. However, even when situations do not rise to a level that constitutes a denial of FAPE, bullying can undermine a student’s ability to achieve his or her full academic potential.”
The letter goes on to say that “Students with disabilities are disproportionately affected by bullying.” “The school should, as part of its appropriate response to the bullying, convene the IEP Team to determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the IEP is no longer designed to provide meaningful educational benefit.” http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.pdf
The Department of Education notes in a 10/26/2010 “Dear Colleague” letter that under federal rules bullying and harassment are different. “School districts may violate these civil rights statues and the Department’s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.” The letter also says “Harassment does not have to have intent to harm, be directed at a specific target, or involve repeated incidents.”
The intent of the rules and policy is for schools to have procedures for receiving reports of possible bullying, investigating, and determining if bullying occurred. If it occurred, support services need to be provided to those involved. Often administrators would deny that bullying was occurring in general or with specific students. Determining that behavior rises to the level of bullying can often be difficult.
If parents are concerned that policies and procedures are not being followed, or that bullying is continuing, they can express their concerns to the central administration. One of the few things Texas educators can legally be charged with is negligence. Being aware of something, but not following policy or procedures, and allowing it to continue happening can equal negligence.
For students with disabilities, schools have additional responsibilities, if bullying is or may be occurring. The letter from OSERS says “parents have the right to request an IEP Team meeting at any time, and public agencies generally must grant a parental request for an IEP Team meeting where a student’s needs may have changed as a result of bullying.” Even if the campus administrator decides bullying has not occurred, a parent can point out how the child’s needs have changed, or are not being met. They can also document that the child is anxious or fearful at school or trying to avoid all or some school activities. Concerns can also be shared with the special education director.