Ratwik, Roszak & Maloney, P.A. 300 U.S.

Trust Building 730 Second Avenue South Minneapolis, Minnesota 55402 (612) 339-0060 Fax (612) 339-0038 www.ratwiklaw.com CAN A SCHOOL DISTRICT BE HELD LIABLE FOR BULLYING, ABUSE, AND MOLESTATION? SCHOOL RISK PREVENTION WORKSHOP March 13, 2012 Amy E. Mace aem@ratwiklaw.com I. BULLYING IN GENERAL School bullying is not a new problem, but research shows that it is a pervasive one. A national survey found that 30% of teens in the United States are estimated to be involved in bullying, either as a bully, a target of bullying, or both.1 The study found that bullying was most common in the 6th, 7th, and 8th grades. A. Bullying Defined Minnesota law requires each school board to adopt a written policy prohibiting intimidation and bullying of any student. Such a policy must address intimidation and bullying in all forms, including, but not limited to, electronic forms and forms involving Internet Use. Minn. Stat. 121A.0695. 1 Nansel, T.R., Overpeck, M. Pilla, R.S., Ruan, W.L. Simmons-Morton, B., and Sch eidt, P., Bullying Behaviors Among U.S. Youth: Prevalence and Association with Psychological Adjustment. JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION, Vol. 285(16), 2094-2100 (2001). NOTE: The purpose of this presentation, and the accompanying materials, is to in form you of interesting and important legal developments. While current as of the date of pr esentation, the information given today may be superseded by court decisions and legislative ame ndments. We cannot render legal advice without an awareness and analysis of the facts of a p articular situation. If you have questions about the application of concepts discussed in the presentati on or addressed in this outline, you should consult your legal counsel. 2012 Ratwik, Roszak & Maloney, P. A.

The Minnesota School Boards Association ( MSBA ) has issued Model Policy 514 that defines the term bullying. As listed in that Policy: Bullying means any written or verbal expression, physical act or gesture, or patte rn thereof, by a student that is intended to cause or is perceived as causing distr ess to one or more students and which substantially interferes with another student s or stud ents educational benefits, opportunities, or performance. Bullying includes, but is n ot limited to, conduct by a student against another student that a reasonable perso n under the circumstances knows or should know has the effect of: 1. harming a student; 2. damaging a student s property; 3. placing a student in reasonable fear of harm to his or her person or property ; 4. creating a hostile educational environment for a student; or 5. intimidating a student. Minnesota law also requires each school board to adopt a written policy governing student or staff hazing. Such a policy Must apply to student behavior that occurs on or off school property and during and after school hours. The policy must include reporting procedures and disciplinary consequences for violating the policy. The disciplinary consequences must be sufficiently severe to deter violations and appropriate discipline prohibited behavior. In addition, [e]ach school must includ e the hazing policy in its student handbook on school policies. Minn. Stat. 121A.69 . B. In Some Circumstances, Bullying Is Also Considered to Be Harassment. While students may bully one another for any number of reasons, it is important to remember that bullying may be a form of harassment. If the harassment is based o n the victim s race, color, religion, sex, sexual orientation, disability, or other prot ected class, the school could face claims under the Minnesota Human Rights Act ( MHRA ) or a number of federal antidiscrimination statutes. These claims are in addition to t he state common law claims discussed below. See Montgomery v. Independent School District No. 709, 109 F.Supp.2d 1081 (D. Minn. 2000). It is also worth mentioning that ch arter schools are not exempt from the MHRA. Minn. Stat. 124D.10, subd. 8(g). Minnesota law requires each school board to adopt a written sexual, religious, a nd racial harassment and sexual, religious, and racial violence policy that conforms with the Minnesota Human Rights act. See Minn. Stat. 121A.03, subd. 2. As set forth in Section 121A.03, subdivision 2, the policy shall apply to students, teachers, administrators, and other school personnel. Further, the policy must include repo rting procedures, and set forth disciplinary actions that will be taken for violation

of the policy. 2

The policy

must be conspicuously posted throughout each school building,

given to each district employee and independent contractor at the time of enteri ng into the person s employment contract, and included in each school s student handbook on school policies. In addition to adopting such a policy, [e]ach school must develop a process for discussing the school s sexual, religious, and racial harassment and v iolence policy with students and school employees. Minn. Stat. 121A.03, subd. 2. Cases that address school bullying / harassment include: 1. Wolfe v. Fayetteville School District, --- F.3d ---, 2011 WL 3444555 (8th Cir., Aug. 9, 2011). William Wolfe was a student in the Fayetteville, Arkansas School District until 10th grade. Between 6th and 10th grade, Wolfe was ridiculed and bullied by his fellow students, who falsely labeled him as a homosexual. Wolfe was called faggot, queer bait, and homo, and was also physically assaulted. His classmates also created a Facebook paged called Every One [sic] That Hates Billy Wolfe, which included a photo-shopped image of Wolfe s head on a green fairy with the word homosexual written across it. Wolfe brought claims against the District alleging gender discrimination in violation of Title IX. The District insisted that the underlyi ng conduct was not gender-based, and that it properly responded to the incidents under its bullying policy. The jury agreed, returning a verdict in favor of the District on all cla ims. Wolfe appealed, arguing that the jury instructions were erroneous. The 8th Circuit aff irmed the District Court, holding that Wolfe had to prove the harassment amounted to more than mere name-calling. He was required to show that the harasser(s) intended to discriminate against him on the basis of sex, meaning the harassment was motivated by either Wolfe s gender or failure to conform with male gender stereotypes. 2. Mathis v. Wayne County Board of Education, Slip Op., 2011 WL 3320966 (M.D. Tenn., Aug. 2, 2011). Plaintiffs alleged that their sons were subjected to student-on-student sexual h arassment at the hands of 8th graders in the gym locker room before and after basketball p ractice, and that the basketball coach and administrators failed to properly respond to t he incidents. These disturbing incidents include one student having a marker forcib ly inserted into his anus and another student being forced to perform a blind-fold s it-up, where he was forced to perform a sit up that ended with his face being pressed i nto another student s buttocks. The trial court further noted that the coach may have inadvertently given the students the idea for the blind-fold sit-up. The jury foun d for the plaintiffs on their Title IX claim and awarded each plaintiff $100,000.00 in damages. The District Court denied the school district s motion for judgment not

withstanding the verdict, holding that a jury could reasonable find that the dis trict failed to prevent the sexually charged harassment of the boys, leaving them vulnerable to further attacks and harassment. 3

3. Martin v. Swartz Creek Community Schools, 419 F.Supp.2d 967 (E.D. Mich. 2006). Jonathan Martin, an openly gay student, sued his school district for failing to prevent bullying and harassment that he suffered over the course of one and a half schoo l years. He alleged that students had verbally assaulted him, scribbled graffiti on his l ocker, published a fake newspaper article referring to his sexuality, and dumped hot ch eese on his head during lunch hour. The school admitted that it knew about many of the incidents and only responded to some of them. The court allowed the case to cont inue to a jury because the school did not respond to all of the incidents, and becaus e the school s reactions might not have been appropriate, as evidenced by the fact that the harassment continued for so long. 4. Theno v. Tonganoxie Unified School District No. 464, 377 F.Supp.2d 952 (D. Kan. 2005). A heterosexual teenager sued the school district alleging that he had suffered a nti-gay taunting for four years. He claimed that other students spread rumors about him, threatened him, and called him bitch, fag, and homo. He dropped out of school during his junior year because of the harassment. A jury awarded the plaintiff $250,000.00 plus costs and attorneys fees. The school district settled with the h arassed student for $440,000.00. C. Peer-to-Peer Harassment Sexual Harassment 1. Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S. Ct. 1661 (1999). Schools are only liable for damages in student-to-student sexual harassment clai ms if administrators respond to severe, pervasive, and objectively offensive conduct i n a deliberately indifferent manner. 2. Schaefer v. Lac Cruces Public School District, 716 F.Supp.2d 1052 (Dist. New Mexico 2010) The Schaefer case involved allegations that a child was being bullied at school by fellow students and that the school failed to take appropriate steps. Specifical ly, the plaintiffs alleged that the school failed to properly respond to three attacks a gainst students during the month of September, 2009. At least one of these incidents in volved one student racking another (intentionally striking a male in the testicles), whic h caused serious injury to the plaintiffs son. The school held a meeting with all o f the middle school boys and informed them of the dangers of harassment, bullying, and

student-on-student violence. The plaintiffs alleged that this was not enough, an d that the district failed to identify or punish the bullies. The federal court dismiss ed the federal claims, but remanded the case to state court for resolution of the state law claims, including negligent supervision. 4

3. Tyrrell v. Seaford Union Free School District, ---F.Supp.2d--- (E.D.N.Y. 2011 ). The Tyrrell case involved student-on-student sexual harassment following the publication of a photograph depicting a female student engaged in a sex act with another female student. The incident occurred over the weekend of April 1, 2005, and occurred off of school property. However, the photograph was uploaded onto Photobucket.com, a photo-sharing website. The photograph depicted the student, a nd identified her stating: [Student] got drunk and *** diked out. She went lesbo. It was alleged that the photograph was accessed through the school network, and that th e district should have reported the incident to the police. A school social worker was concerned about the student and informed the principal about the photographs, wh o then had a meeting with the plaintiff and the male students allegedly involved. Plaintiff alleged sexual harassment under Title IX but the court denied the claim because plaintiff could not establish she was harassed on the basis of gender. Plaintiff also alleged a due process violation pursuant to Section 1983, which the court also d enied due to qualified immunity. 4. Phoebe Prince (2010) Phoebe Prince was a 15-year-old girl in Massachusetts. After a breakup with a po pular boy whom she had been dating, several students engaged in what the media dubbed a campaign of assault, including personal comments, electronic communications, and text messages. After this unrelenting bullying, which was widely known in the school community, and which at least two faculty members reportedly tried to sto p, Phoebe hanged herself. Nine teenage students were charged criminally, including two boys who were charged with statutory rape and a popular clique of girls who were charged with stalking and criminal harassment. The school district subsequently settled the civil action filed by Phoebe Prince s parents. Phoebe s death sparked national debate and bullying law reforms. D. Guidance from the U.S. Department of Education Office for Civil Rights An October 26, 2010, an Office of Civil Rights ( OCR ) letter stated that federal anti-discrimination statutes may be violated if harassment based upon a protecte d class is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees. According to the OCR, a school district is responsible for addressing harassment incidents about which it knows or reasonably should have known. The OCR advises the following: 1.

School districts should have well-publicized policies prohibiting harassment and procedures for reporting and resolving complaints that will alert the school to incidents of harassment. 5

2. When responding to harassment, a school must take immediate and appropriate action to investigate or otherwise determine what occurred. 3. If an investigation reveals that discriminatory harassment has occurred, federal antidiscrimination statutes require that a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment a nd its effects, and prevent the harassment from recurring. 4. School districts should take steps to stop further harassment and to prevent any retaliation against the person who made a complaint, a person who was the subjec t of harassment, or a witness to harassment. 5. Remember that these duties are a school district s responsibility even if the misconduct is covered by an anti-bullying policy and regardless of whether the victim of harassment had complained, asked the school district to take action, o r has identified the harassment as a form of discrimination. E. National School Boards Association Response Following the publication of the letter from the OCR, the National School Boards Association (NSBA) published a reply dated December 7, 2010.2 In this letter, th e NSBA expresses its concern over the OCR s statement of the law, which the NSBA believes expands the standards for liability for school districts. The NSBA is c oncerned that the OCR may invite misguided litigation against school districts. Specificall y, the NSBA disagrees that school districts can be liable for damages related to pe er harassment without actual knowledge of the harassment. The OCR stated that distr icts are responsible for addressing harassment about which it knows or reasonably shou ld have known. Because this standard goes beyond actual knowledge, it is broader tha n established case law such as Davis v. Monroe County Board of Education, 526 U.S. 619 (1999). F. Department of Education Response to the NSBA In a response letter dated March 25, 2011, the OCR disagreed with NSBA s contentio n that the OCR would invite misguided litigation.3 The OCR s position is that the let ter is meant to help schools identify and respond to harassment, thereby helping ins ulate schools from liability, not increasing it. In regard to NSBA s critique that the l etter expands the scope of liability for schools, the OCR stated that the standards ou tlined were for administrative enforcement of federal civil rights laws, meaning action taken by the OCR, not for use by private plaintiffs through lawsuits filed in the cour

ts. 2 Letter from Francisco M. Negron, NSBA General Counsel, to Charlie Rose, Genera l Counsel, Department of Education, in response to OCR s Dear Colleague Letter (Dec. 10, 2010), available at http://www.nsba.org/SchoolLaw/Issues/NSBA-letter-to-Ed-12-07-10.pdf 3 Letter from Russlyn Ali, Department of Education, Assistant Secretary for Civi l Rights, to Francisco M. Negron, General Counsel, NSBA, in response to NSBA s letter (Mar. 25, 2011), available at http://www.nsba.org/SchoolLaw/Issues/Equity/ED-Response-to-NSBA-GCs-Letter-to-ED -on-OCR-BullyingGuidelines. pdf 6

II. SCHOOL DISTRICTS ARE OBLIGATED TO PROTECT STUDENT SAFETY A. Failure to Supervise (General Duty) School districts have a duty to provide a safe learning environment for students . The question of liability for student bullying can be analyzed as one of foreseeabil ity should the school district have predicted such an incident, and would supervisio n have prevented the incident? See Sheehan v. St. Peter s Catholic School, 188 N.W.2d 868 (Minn. 1971); Raleigh v. Independent School District No. 625, 275 N.W.2d 572 (Mi nn. 1978), S.W. v. Spring Lake Park School District No. 16, 592 N.W.2d 625 (Minn. Ap p. 1999); Anderson v. Shaughnessy, 526 N.W.2d 625 (Minn. 1995). If a school district has knowledge of repeated instances of similar past bullyin g by a student or group of students and fails to take action to prevent the bullying, a court will likely find that the bullying which caused the physical or emotional harm to the student was foreseeable. 1. Sheehan v. St. Peter s Catholic School, 188 N.W.2d 868, 871 (Minn. 1971). A teacher escorted 20 eighth grade female students to a playground during recess , instructed them to sit along the third-base line of a baseball field, and then l eft and went back into the building. Several of the baseball players began throwing rocks at the girls. Despite various protests, the rock-throwing continued for three to four minutes. One of the girls was struck in the eye and lost her sight in that eye. The Minnesota Su preme Court held that a jury could reasonably find that had the teacher been present s he would have put a stop to the dangerous activity before the plaintiff was struck. As a result, a jury could find that the injury was foreseeable. 2. Hamilton v. Independent School District No. 114, 355 N.W.2d 182 (Minn. App. 1984). After a school-sponsored basketball game, a 13-year-old 7th grade student who wa s just outside the gym pushed a fellow 7th grade student into the plaintiff and thereby injured her hip. The school was aware that the two students had been involved in prior altercations. The principal was the only supervisor in the building at the time, and no supervision of students was provided once they exited the building. The Minnesot a Court of Appeals held that the student was a spectator at a school-sponsored eve nt, the school knew there was a foreseeable risk of injury, and a jury could find that t he presence of a school supervisor might have prevented the injury. Id. at 185.

3. Bell v. Ayio, 731 So.2d 893 (La. App. 1998) Lyannie Bell sued her daughter April s school bus driver and the school board afte r another student, Fatonya, broke April s ankle. The incident happened while the bus driver was transporting the children home from school. Fatonya had been threaten ing April, and the two had been fighting on the school bus ride from their middle sc hool to 7

a neighboring elementary school. When the bus stopped to pick up elementary scho ol students, the bus driver took both April and Fatonya off of the school bus and d irected a teacher to go get the principal. When the driver got back on the school bus to m ove the bus out of the way and let other busses load up, Fatonya attacked April, stompin g on her ankle and breaking it. A jury found the bus driver fifteen-percent at fault for April s injuries, saying that he was negligent for putting the students together unsuper vised, knowing that Fatonya had been threatening April. III. DISCIPLINING STUDENTS FOR BULLYING BEHAVIOR OCCURRING OFFCAMPUS One problem schools face while trying to address bullying activities is that the conduct often happens off school grounds. This limits the ability of a school to take action a gainst the student. A school district has the power to discipline students for off-campus m isconduct only if the misconduct is a continuation of or has a nexus with improper conduct that occurred on school grounds or the student s actions have a direct and immediate effect either on school discipline or on the general safety and welfare of students. In re Expulsion of Z.K. and S.K., 695 N.W.2d 656 (Minn. App. 2005) (citing In re Expulsion of J.M., MDCFL (Feb. 18 , 1997)). Although this encompasses a great deal of student actions, it is not unlimited. Prior to taking action against a student for off campus or online activities, a school must make sure the student s action has the necessary nexus. The Minnesota State High School League rules governing student conduct, however, are in effect all year round. Thus, a school district may be able to declare a student ineligible to participate in extracurricular events, including athletic teams, for conduct occ urring during the summer, but violating those rules. IV. BULLYING IN THE 21ST CENTURY CYBER-BULLYING When considering challenges to discipline imposed on students for Internet speec h created offcampus, courts generally use the substantial disruption and true threat tests. Court s have determined more often than not that student Internet speech created off-campus i s protected by the First Amendment. While the Internet speech may have been unsavory or mean-sp irited, this is not enough to impose discipline without evidence of a substantial disrup tion at school or true threat to a student or school employee. A.

Factors to consider When Determining Whether to Discipline a Student for Internet Misconduct 1. Off-Campus v. On-Campus Computers Where did thee student create or access the Internet speech? Schools have the po wer to exercise control over what students do on school computers, while their power ov er offcampus computer use is more limited. 8

2. Substantial Disruption or True Threat If the student has only engaged in Internet speech created and accessed off-camp us, the latitude allowed for punishment is narrower. The following are some questions fo r administrators to ask when determining whether to discipline a student for Inter net speech: a. Does the speech have a nexus with the school? The speech must generally involve the school itself, students or employees to implicate a school s power to discipli ne. b. Does the website or online content materially and substantially interfere with the operation of the school? Some questions used to determine the existence of a material and substantial disruption are: . Did the student seriously encourage other students to violate laws or school rules? . Is there specific and significant fear of disruption, not merely some remote apprehension of a disturbance? . Is the fear of disruption more significant than a mere fear of discomfort and unpleasantness from an unsavory viewpoint? . Is the disruption merely hurt feelings? . Were teachers unable to control or teach their classes for a significant period of time? c. Does the website or online content constitute a true treat? Threats of physical violence are not protected by the First Amendment whether made inside or outside school? Some questions used to determine the existence of a true threat are: . Was there a threat of physical violence to students or staff? . What was the reaction of those who heard the threat? . Did the person who made the threat communicate it directly to the person who was the object of the threat? . Did the speaker have a history of making threats against the threatened person/ 9

. Did the threatened person have a reason to believe that the speaker had a propensity to engage in violence? d. If discipline is imposed based on a student s internet speech, the decision should be supported with evidence of the material disruption or true threat created by the speech. B. Cases Involving Discipline for Online, Off Campus Speech 1. Beidler v. North Thurston Sch. Dist., No. 99-00236 (Wash. Superior Ct. 1999). A student created a website showing an assistant principal advertising Viagra, p ortrayed as a Nazi, hitting another student, with drugs and guns, flirting with another m ale teacher, baked on drugs, defecating in class, and having intimate relations with Homer Simpson. The school district expelled the student for the remainder of the school year. The court overturned the expulsion. As with the other cases cited i n this section, this case involved a student who created a website off school grounds. The court noted that the student s on-campus activities related to this website were d e minimus. However, if the student had created the website at school, the result a lmost surely would have been different. 2. Mahaffey v. Aldrich, 236 F.Supp.2d 779 (E.D. Mich. 2002). The student created a website entitled Satan s web page. The page listed people I wish would die. The school suspended the student and planned to expel him before the student s parents withdrew her from the school. The court ruled the discipline vio lated the student s free speech rights because the website did not contain any true thre ats and did not cause a substantial disruption. The list of people he wanted to die were not threatened to die anymore than people he listed as cool were made cool by his statements. 3. Wisniewski v. Bd. of Ed. of the Weedsport Central Sch. Dist., 494 F.3d 34 (2nd Cir. 2007). An eighth grade student was suspended for sharing with 15 friends via AOL instan t messenger, a small drawing that suggested that a certain teacher should be shot and killed. Specifically, the drawing was of a pistol firing a bullet at a person s he ad, above which were dots representing splattered blood. Beneath the drawing were the word s, Kill Mr. Vander-Molen, who was the student s English teacher at the time. Another student who received the picture, showed it to the teacher. The student was susp ended for five days and claimed that the drawing was just a joke that he regretted. Th e parents

filed suit alleging that the drawing was protected speech ent. The court found that the drawing did not meet the test of Tinker, and determined that it would materially and substantially discipline of the school. The court stated that the fact and 10

under the First Amendm protected speech under disrupt the work and that [Student s] creation

transmission of the IM icon occurred away from school does not necessarily insul ate him from school discipline, and upheld the district s suspension.

4. J.S. ex. rel H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002). A student created a website containing violent and crude depictions of a school s teacher and principal. The website was entitled Teacher Sux. The site contained a picture of a teacher with her head cut off and blood dripping from her neck and encouraged visitors to donate $20 for a hit man. Another picture of the teacher morphed her head into a picture of Adolf Hitler. The school permanently expelled the student. The court upheld the student s expulsion stating that because the website disrupted the entire school community, the school could regulate the speech. Specifically, the court held that the website had a demoralizing impact on the s chool community, and that as a result of the website, the morale of the students and s taff was extremely low. In addition, the teacher involved took a medical leave of absence after experiencing anxiety and other health issues as a result of the website. As a re sult, three substitute teachers took her place, which disrupted the educational process of t he students. C. Recent Supreme Court Denials of Certiorari This past year, three discipline/bullying matters were appealed to the United St ates Supreme Court. The Court denied certiorari in all three matters. This denial mea ns that the decision of the lower court is unchanged. 1. Layshock ex rel. Layshock v. Hermitage School Dist., 650 F.3d 205 (3rd Cir. 2011) A student created a website created a fake profile for his school s principal on M ySpace during non-school hours at his grandmother s home. The website portrayed an unflattering image of the principal based on a theme of the principal being a la rge man. It also implied the principal used drugs and engaged in other illicit behavior. The student who created the profile and other students accessed the profile from school comp uters. Upon learning of the profile and the student s involvement in creating it, the sch ool suspended him for ten days and placed him in an alternative learning program. Th e district court, affirmed by the appellate court, held that the District could no t punish the student for his off-campus behavior even though it reached inside the school. The profile did not create a substantial disruption inside the school, and therefore the student s actions were protected by the First Amendment. 2. J.S. ex rel. Snyder v. Blue Mountain School Dist., 650 F.3d 915 (3rd Cir. 201

1). This case involved very similar actions as those from the Layshock decision abov e. This decision again concerned a student creating a fake MySpace profile for a school principal, however this time the profile implied the principal was a pedophile a nd sex addict. No students accessed the profile at school. The school learned of the pr ofile and 11

suspended the student. The appellate court again held that there was no substant ial disruption to the school despite the more severe content of the profile. Althoug h the student s actions were lewd or vulgar, because the actions occurred off-campus, th e District could not punish the student for them. 3. Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011). A student created a MySpace group titled S.A.S.H. or Students Against Sluts Herpes from her off-campus computer. The content of the page was directed primarily at another student, Shay N. Many individuals participated in the group, posting pic tures of the student and making otherwise derogatory comments about her. The student who crated the group was suspended and prohibited from attending school activities. The Court held that given the targeted, defamatory nature of the student s speech who created the group which was aimed at a fellow classmate, the conduct created "actual or nascent" substantial disorder and disruption in the school justifying disciplinary action against the student. The Court also held that it was foreseeable that the student s conduct wo uld reach the school via computers, smartphones, and other electronic devices, given that most of the group s members and the target of the group s harassment were students. V. PREVENTING BULLYING It is in the school s best interest to make sure parents and students are aware of the school s stance on bullying, and aware that there could be consequences, even for first t ime bullies. One provision to add to a bullying policy is notification of parents of any bull ying incidents. Informing parents about bullying that is going on at school may make those paren ts aware of bullying that is occurring a home. A school s ability to punish a student s behavior for offcampus, online bullying is limited, and increased parental monitoring may limit bullying in ways that a school cannot. A. Ten Tips to Stop Bullying: 1. Raise school-wide awareness of the seriousness of bullying through speakers, rev iew of anti-bullying policies and other initiatives. 2. Use student surveys to determine the extent of bullying behavior in your school. 3. School administrators, teachers, athletic coaches, and other staff must consiste ntly enforce the District policies and intervene if bullying occurs. 4.

Address the student code of silence. Encourage students to file complaints when they are bullied or witness bullying. 5. A school district should investigate every report it receives about bullying. Sc hool district officials or a designated third party may conduct the investigation. 12

6. The school district should take steps to protect the complainant or reporter pen ding completion of the investigation. Many students fear reporting a bully because the y will be next. 7. Upon completion of the investigation, the school district should take immediate action. Discipline may include warning, suspension, or expulsion depending on the nature and severity of the bullying. 8. Depending on the situation, some forms of bullying may constitute criminal condu ct. Just as school districts report weapons and drug offenses to the police, they sh ould report bullying activities that are criminal in nature to the police or juvenile authorities. 9. Districts should keep appropriate records documenting any action to stop student bullying. 10. The worst reaction to a complaint is to do nothing, or to be perceived as doing nothing. Although many student complaints about other students will fall into the teasing /namecalling category of typical student misconduct that can be dealt with swiftly and immediately by the staff person involved, some will require more serious action. VI. LIABILITY FOR EMPLOYEE ACTIONS- ABUSE OR MOLESTATION The seminal Minnesota case on an employer s vicarious liability for an employee s in tentional torts is Lange v. National Biscuit Company, 211 N.W.2d 783 (Minn. 1973). In that case, the Minnesota Supreme Court held that an employer is liable for an assault by his em ployee when (1) the source of the attack is related to the duties of the employee, and (2) the assau lt occurs within workrelated limits of time and place. In sexual assault cases, courts have framed th e first prong of this test in terms of foreseeability. See also Marston v. Minneapolis Clinic of Psychiatry a nd Neurology, Ltd., 329 N.W.2d 306 (Minn. 1982). For example, in Marston, which involved alleg ations of improper sexual advances by a psychologist, the plaintiff survived summary judgment by pr oviding expert testimony that sexual relations between doctors and patients was a well-known haz ard and thus . . . foreseeable. In several cases involving sexual assault by school staff, Minnesota courts have found no evidence of foreseeability and thus no basis for vicarious liability on the part of the school. For example, in P.L. v. Aubert, 545 N.W.2d 666 (1996), a female high school teacher engaged in a sexual

relationship with one of her students over the course of an entire school year. Despite standard teacher evaluations and classroom observations, school administrators never observed the sexual contact between the teacher and the student. The Supreme Court found that, in contrast t o the doctor-patient relationship at issue in Marston, there was no evidence that such relationships b etween teacher and student are a well-known hazard . . . . [T]hus there can be no implied foreseeabili ty, [and] liability of the [school] cannot be imputed. The Court further held that the employer is not li able for the intentional torts of its employee even though the act occurred within work-relat ed limits of time and place, where such acts were unforeseeable and were unrelated to the duties of th e employee. Similarly, in L.R.M. and R.A.M. v. Engstrom, 1995 WL 321346 (Minn. App.), a teac her was accused of sexually abusing two students. The Court of Appeals affirmed summary judgment for the 13

school district, noting that a determination of foreseeability as a test for respon deat superior merely means that in the context of the particular enterprise an employee s conduct is no t so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer s business. 14