By Madeline Buitelaar
Reports on the rise
In recent years, districts across California have been experiencing a rise in reports of bullying and harassment among students. Today’s youth face ever-increasing avenues where they can be bullied, including the evolving social media landscape. While this may contribute to an increase in actual incidents, there is also greater encouragement to report bullying conduct — and an expectation that administrators will respond swiftly.
Bullying is not against the law. However, anti-bullying policies have been codified in many schools’ student handbooks. Since bullying behavior is not based on a protected category, it generally must be pervasive rather than a single act. Harassment, on the other hand, is based on a protected category and can be either severe or pervasive. Knowing this, administrators need to pay special attention to specific factual circumstances to ensure they respond appropriately to protect their students and their districts.
Are we doing enough to respond to bad behavior?
How schools respond to complaints of bullying and harassment to protect students and, at the same time, their districts, is critical. School administrators have an obligation to protect students, yet the reality is that students who report incidents are not always met with an appropriate response from administrators. Administrators’ actions, or inaction, are often within the scope of the Oppenheimer Investigations Group’s investigations: Did administrators fail to act upon receipt of allegations of bullying and/or harassment?
Importantly, schools must have a mechanism for reporting bullying. Upon receipt of these reports, administrators must have a process and follow that process. This process should include documenting the report and the steps taken to follow up. Documentation might include administrator notes saved in student files or an online platform for tracking student behavior, as well as retaining relevant email exchanges.
Responses (or lack thereof) have consequences
Even when there is a process, administrators’ responses can still fall short. A lacking response to bullying behavior can lead to its escalation, as well as an inconsistent handling of incidents. This is evident from instances of bullying that have led to investigations.
In one case the Oppenheimer Investigations Group office investigated, the district had a process. However, administrators failed to follow their process and did not have any documentation in their possession to prove that they followed their process. Furthermore, administrators in that case did not clearly understand who was in charge, which led to no administrator handling the incident. This investigation resulted in findings against the administrators due to their failure to appropriately respond to reports of bullying.
In a different case where school administrators did not take appropriate measures, administrators did not realize that out-of-school bullying via social media platforms, in this case TikTok, still fell within the scope of their duty to investigate. Their uncertainty contributed to the bullying going unaddressed and is another example of administrators’ response falling short of their obligation to address bullying.
Conversely, in a well-handled case, school administrators took a very different approach. They had a robust process in place for how to respond to bullying, and they followed that process. They documented each report of bullying, placed reports in their online tracking system, saved emails that evidenced their outreach to parents, and called for an investigation when the bullying continued. Administrators at this school took appropriate steps to address the situation and sought the help of external investigators when it became necessary due to the student’s behavior escalating in frequency and severity. Here, the focal point of the investigation was determining the context and circumstances of the underlying conduct since administrators had taken appropriate measures to try to remediate the situation.
It is understandable that bullying cannot always be managed, even with appropriate administrator actions. However, it is key to have a process in place to address bullying, and that such steps are well-documented and communicated to all administrators so there is a uniform response to bullying behavior.
Who should handle an investigation
Administrators have a broad swath of responsibilities, so it can be beneficial to seek the support of a neutral, third party with expertise in investigations to ensure incidents are taken seriously, investigated in a timely manner and appropriate action is taken. Retaining a neutral investigator minimizes the possibility that pre-existing relationships could result in actual or perceived bias in the response to the incident. A thorough investigation can also help administrators to determine what is actually occurring in fraught student relationships, to effectively document both the behavior and the response, and, hopefully, to end the bad behavior. Ultimately, this protects both the districts and their students.
For more information on bullying prevention and board strategies, see CSBA’s recent governance brief “School Safety: Bullying and cyberbullying.”
Madeline Buitelaar, AWI-CH, is an attorney with Oppenheimer Investigations Group, a California-based law firm that focuses on impartial workplace and school investigations, as well as trainings, executive coaching, expert testimony and mediation services. She can be reached at madeline@oiglaw.com.
