Emilee Empathetic, newly elected to the Nutmeg Board of Education, has received numerous emails from parents who want her help. These parents described how their sons and daughters are being tormented by peers through nasty instant messages. With the enthusiasm of a new Board member, Emilee wrote back to these parents, promising to take whatever action is appropriate to stop the bullying.
At the next meeting of the Nutmeg Board of Education, Emilee brought up her concerns. "As a new member of this Board, I was surprised to learn that we are not taking appropriate measures to keep our children safe from harassment and bullying. I have received a number of emails on this subject, and I demand action!"
Nancy Newshound, ace reporter from the Nutmeg Bugle, was in the audience, and she smelled a good story. "Hey, Emilee, can I have a copy of those emails? We can work together on an exposé of bullying in the Nutmeg Public Schools."
Before Emilee could answer, Mr. Superintendent interrupted. "Nancy, you are out of order. You can talk with Emilee later about her private correspondence, and I will certainly encourage her to maintain the confidentiality of those concerned parents. As to the larger question, I must caution the Board of Education that your bullying policy does not address off-campus behavior. It is unfortunate that some children are cruel to others, but if it does not happen in school, it is not our issue."
"I can’t believe this. Have you no heart, Mr. Superintendent?" Emilee implored. "I trust that your laissez-faire attitude is not shared by my colleagues on the Board."
"I hate to break it to you, Emilee, but it is," responded veteran Board member Bob Bombast. "We have enough on our plate without worrying about hurt feelings outside of school. Boo-hoo, and all that, but it’s not our department."
The other Board members recoiled at what came across as particularly harsh words. With Nancy Newshound carefully taking notes on everything that was being said, Emilee saw her chance to make a difference on the Board. "I am shocked, Mr. Bombast. I presume that the other Board members do not share your heartless approach. I move that we amend our policy to require that Mr. Superintendent and his staff investigate any complaint of bullying, both on campus and off. If bullying behavior is identified, the amended policy would further require that an effective plan to remedy the situation be developed and implemented. We must dare to be great! We must take responsibility for stopping bullying in all its forms."
"Just hold your horses," Bob barked back. "We don’t have the resources to investigate off-campus behavior. Besides, a little adversity might toughen them up."
There was an awkward silence, as Bob Bombast’s remarks hung in the air. The other Board members were acutely aware that the public was watching carefully to see whether, in fact, they did care about children. Finally, Penny Pincher seconded Emilee’s motion, and the Board voted quickly, 8 to 1, to make the policy amendments proposed by Emilee. Has the Nutmeg Board of Education gone too far?
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Maybe. This year, the General Assembly amended the bullying statute to permit school boards to assume jurisdiction over off-campus bullying conduct. However, boards must be aware of the potential consequences as they make the decision on whether and how to assume such jurisdiction.
In general, boards of education do not have authority over student conduct off-campus. However, various exceptions have evolved in recent years. First, school discipline has been permitted where off-campus conduct directly and substantially interferes with the educational process. In 1998, the Connecticut Supreme Court elaborated on this standard, and it ruled that it such conduct must significantly impede the day-to-day operation of the school for discipline to be authorized. Second, school discipline is also permitted when conduct off-campus triggers mandatory expulsion under the statute (i.e. sale or distribution of drugs, possession of a real gun, use of a deadly weapon, martial arts weapon or dangerous instrument in the commission of a crime).
Since bullying conduct off-campus does not typically meet either standard, school officials have generally been without authority to take action against bullying conduct that occurs off-campus. Indeed, the very definition of "bullying" in Connecticut General Statutes, Section 10-222d, refers to conduct "while on school grounds, at a school-sponsored activity or on a school bus."
Public Act 06-115 changes this. It extends school district jurisdiction over bullying conduct to off-campus conduct, with an important caveat. It amends Section 10-222d to provide that board policies required by that law now "may include provisions addressing bullying outside of the school setting if it has a direct and negative impact on a student's academic performance or safety in school." Significantly, school boards are permitted but not obligated to incorporate such provisions into their policies.
Whether to accept this invitation to extend school jurisdiction over bullying conduct off-campus presents school boards with a difficult choice. First, there may be many such claims, and school officials could find that the related investigations are very time-consuming. Second, it may be difficult to investigate such off-campus conduct (other than electronic conduct, such as nasty instant messages) where there are few or no witnesses. Third, by extending school jurisdiction over such conduct, a school board may be expanding its duty of care. Even as to on-campus conduct, various school officials have been sued by parents claiming that a failure to intervene effectively in a bullying situation caused harm to their child. By assuming jurisdiction over off-campus conduct, a school board may expose the district to even more claims.
As with any policy, it is important that school boards not over-promise if they choose to extend jurisdiction to off-campus bullying conduct. Policy provisions should be simple and easily followed; a failure to follow policy would be per se unreasonable, which would increase the possibility that a claim would result in liability for negligence. In any event, boards should update their policies to address the other changes, which include clarifying that school buses are covered, notifying students annually of the right to file anonymous complaints, adding "harass" to the definition of bullying, and requiring case-by-case interventions in certain circumstances.
Finally, Emilee should be cautious with her email. Since she received and responded to the parent emails in her role as Board member, they are public documents that must be disclosed upon request (albeit with student and family names redacted).
Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.