School districts are only be liable for bullying that occurs on school grounds or when the victim is in the school's custody. Or when bullying occurs on the school bus and during extracurricular activities or at school-sponsored events.While most states have anti-bullying laws, these laws do not provide for private causes of action. Lawsuits must be brought under state or federal anti-discrimination laws or as common law tort claims. To do this, 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, for a tort claim, the victim must have suffered physical harm.
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. If the bully uses his or her own mobile phone or computer, if the harassments were done on school grounds.
Deliberate IndifferenceIf the student is a member of a protected class and the harassment is so severe and offensive that it prohibits the victim's access to educational opportunity. The school must know about the instances and have not done anything to ameliorate the situation.
Knowledge Key to LiabilityEven where there is physical harm from the bullying,
Schools and school districts will only be held liable where they had actual harm with constructive knowledge. Also, 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.
School ImmunitySome states grant school districts and school boards absolute immunity for their employees' legal problems (e.g. 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.
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