Bullying shouldn't be part of any student's experience in school. Being targeted for harassment or intimidation not only impacts a student's education but can have lifelong implications for that student.
Nebraska requires that all school districts have anti-bullying policies. The state limits the scope of these policies. This can make it more difficult for families to show when and how a school's action or inaction influenced or contributed to a student being bullied.
Schools do have a duty to care for their students. Students should feel safe attending school and participating in the full range of school activities, whether in the classroom or on the field. If and when a student is being bullied, and a school fails in its duty to that student, families may have no choice but to pursue legal action against the school.
The Education Law Team at the Lento Law Firm helps parents protect their students and ensure children get the most out of their education. To tell us more about your situation and learn how we can assist, call us at 888-535-3686 or fill out an online form.
What is Bullying?
The Nebraska Department of Education has a resource, Help! My Child is Being Bullied, for parents and guardians. This resource includes a definition of bullying and the steps families should take to respond to bullying allegations.
Nebraska states that four elements must be present for another student's actions, words, or behavior to be considered bullying. The four elements are:
- Unwanted aggressive behavior
- The intent to hurt someone physically, verbally, emotionally, or electronically
- A power imbalance between the two students; this imbalance may be physical, social, or emotional
- Repeated over time
This definition closely aligns with how the federal government defines bullying.
An important caveat is that while these elements mention electronic harassment (i.e., cyberbullying), Nebraska doesn't have any laws about cyberbullying in schools. The state leaves any policies on cyberbullying for districts to decide.
Initial Steps
Nebraska lists expected actions parents or guardians should take when they believe their child is or has been bullied. Following these steps or engaging in similar actions can be important if and when a family decides to file a lawsuit against a school. These early actions can show that families tried and failed to end the bullying, including through measures and procedures recommended by the state and the school district.
Families don't have to follow these steps exactly to show they attempted to end the bullying. Think of them as a guide. Courts may use these as a reference during a hearing to see how each side attempted to mitigate or end the bullying.
School districts may also have policies and procedures in place. They can generally be found in a student handbook or a school's code of conduct. Omaha Public Schools is one of several districts in the state that publicly post their handbooks or Code of Conduct online.
The following are steps suggested by the Nebraska Department of Education. One important consideration is, as much as possible, to communicate with your child throughout the process and find ways to support them. Do not wait until a bullying situation is resolved to help your child.
- Learn about the situation. Talk to your student and find out about what's been happening. Document any available evidence.
- Review the bullying policy at your child's school. These are often found in student handbooks or codes of conduct. Some districts may also have guides for parents that include this information. Find out if the district has a procedure for reporting bullying.
- Contact the school and schedule a meeting. As much as possible, you want to begin by seeking informal, collaborative meetings and conversations. You should plan to provide a school with evidence and other documents that back up your student's claims.
- Meet with the school to establish a plan. Ideally, a plan should also involve finding a resolution to the issue. In some cases, you may wish to create a plan to both end the bullying in the short term and prevent future incidents in the long term.
- Continue to communicate with both the school and your student about the situation.
These policies should be similar regardless of whether the individual harassing or threatening your child is another student or a member of the school staff. Families should not hesitate to report bullying behavior by teachers, administrators, and other school staff members. As school district employees, these individuals have a duty toward students, and bullying or harassing students is a breach of that duty.
Parent Actions
In addition to the initial actions suggested above, Nebraska recommends parents and guardians follow four steps to address bullying.
First Step
All schools must have a bullying policy. If families do not already have access to their school's bullying policy, they should request a current copy of it. An increasing number of schools also post their handbooks and codes of conduct online. In situations when bullying occurs to the point of breaking the law or being potentially criminal, families may wish to contact local law enforcement.
Second Step
Families need to assemble evidence. While a student's version of events is important to have, especially in writing, one student's word alone against another student's word can turn into a classic he-said, she-said.
The Department of Education recommends families assemble the following information:
- For each incident, write down the date, time, location, all involved individuals, and what happened.
- Save all electronic records, including emails and social media posts. In some cases, individuals may want to screenshot or otherwise independently save or record posts or other information.
- Witness statements, medical records, and other information may also be useful depending on the specifics of the circumstances. In addition, records of communication between the school and family and a list of what actions a school did or did not take can also be useful.
Third Step
Nebraska next recommends that families focus on solutions rather than placing blame. They suggest three ways to find a resolution:
- Discuss with a teacher, administrative, or other school staff member what parts of school policy aren't being followed
- If this isn't successful, families should next arrange a meeting with the superintendent.
- Finally, parents or guardians should schedule a time to talk with a member of the school board.
Separate from the issue of following the Department of Education's recommendations, families should, when possible, seek a more informal resolution. The top reason for this is that it can lead to a quicker resolution, which benefits their child. Second, attempting to solve the problem in more informal conversations shows a desire to solve the problem and only elevate the issue as necessary. Finally, when the school in question is public, families will need to first exhaust other options before turning to legal recourse.
Fourth Step
If the bullying continues, parents or guardians should next request an investigation. These investigations focus on whether the school followed its policy and the law, not on the bullying itself. The focus of the investigation is if and how the school failed in its duty to your student.
Families can file a request for an investigation through the Department of Education. These investigations are separate from any civil lawsuit or action a family may wish to take, although the investigation may be used as evidence.
Duty of Care
Schools have a duty of care to students, which means a responsibility to prevent harm or injury. For a school to be liable, the evidence must show that a school failed in its duty of care to that student.
That a student was bullied, even if on school grounds, may not be enough to show that a school failed in its duty of care. Families must be able to provide evidence that the school's actions or inactions contributed to the bullying, such as by allowing it to continue by not disciplining the involved students.
By the same token, that a school claims to be unaware of bullying isn't necessarily enough to show they didn't breach the duty of care. If a family can show that the school should have known that the bullying was happening, a school may be found to have breached its duty.
The duty of care, sometimes referred to as the duty of reasonable care, is a legal term that, while simple in definition, can be complicated in practice. The key point to understand is that, for a school to be liable when a student has been bullied, families must be able to show the school somehow failed in its duty of care to that student.
Student Discipline
Nebraska requires that schools discipline students who have bullied, harassed, or intimidated another student. The bullying must occur on school grounds, in a school vehicle, or during a school activity.
Nebraska law lists the following disciplinary measures for students who bully other students:
- Long-term suspension
- Expulsion
- Mandatory reassignment
If a school fails to discipline a student who bullies another student, the school may have failed in its duty of care to the student who was the target of the bullying.
Federal Laws About Bullying
In some cases, families may wish to file against a school district in federal court. While no federal law exists about bullying, families may rely on other federal laws.
What law is most relevant depends on the specific circumstances of your student's case. Civil rights laws are the most frequently used. Some of the commonly used laws include:
Title IV of the Civil Rights Act of 1964. This law bans race-based discrimination.
Title VI of the Civil Rights Act of 1964, which prohibits discrimination in federal programs.
Title IX of the Education Amendments of 1972 bans discrimination based on sex and gender.
The Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act (IDEA) all establish rights and prohibit discrimination based on disability.
This isn't an exclusive list of relevant federal laws. Your student's specific situation may involve different issues or laws. The Lento Law Firm's Education Law Team helps our clients determine the best court for their case and the most relevant federal laws. Families do not have to know the law: They just need to know their student is not safe at school and the school is failing in its duty to that student.
Nebraska Model Policy
The Nebraska State Board of Education has a model policy about bullying. School districts are free to adopt or alter it as they choose. While Nebraska encourages districts to have prevention strategies and programs as well as training, the state does not require that districts offer these programs.
What districts must do is review their policy annually.
Lincoln Public Schools adopted the model policy as its district policy. The district allows parents or guardians to report bullying via the district website. Each district school has a separate reporting page.
Cyberbullying
Nebraska doesn't have any laws that directly relate to cyberbullying in schools. While bills have been introduced to address the problem of cyberbullying in schools, none have been passed into law. The state leaves it to school districts to determine their policies on school bullying.
Unfortunately, this lack of state law fails to address the manner in which students, especially high school students, are most likely to be bullied. While approximately 20 percent of students report being bullied in school, over 50 percent of teens report being cyberbullied.
Name-calling, false rumors, and receiving unwanted explicit images are the top three forms of cyberbullying that teens experience. African-American teens are the most likely to report harassment due to their race or ethnicity. Older teen girls are more likely to experience online harassment and bullying than boys or younger teens.
General Nebraska Statute on Cyberbullying
While the state has no laws that explicitly mention cyberbullying as it relates to schools, Nebraska does have a general prohibition on electronic harassment.
Passed in 2018 to expand on a law that previously addressed only threatening or harassing phone calls, the law makes cyberbullying and online harassment a misdemeanor. The maximum punishment if convicted is up to three months in jail and/or a $500 fine.
The law covers both telephone calls and electronic communication. A conversation or reply is not necessary to run afoul of the law. The evidence needs to show the intent to intimidate, threaten, or harass another person for an individual to be guilty.
Nebraska defines the following behaviors as cyberbullying:
- Using obscene language or suggesting obscene acts
- Threatening physical or mental harm to a person or their property
- Attempting to extort property, money, or anything of value
- The state defines an electronic communication to include:
- Writing
- Sound
- Visual images or videos
- Any data either sent or received by an electronic communication device
Example: School District Policies on Cyberbullying
Millard Public Schools is one of the districts that do have cyberbullying as part of its student code of conduct. Its policy does limit the school's responsibility regarding the physical location of where bullying occurs.
The district includes electronic abuse in its definition of bullying when it occurs in one of the following locations:
- On school grounds
- In a school vehicle while the vehicle is being used for school-related purposes
- During any school event or extracurricular activity
- Any place or activity where a school may discipline a student
Elkhorn Public Schools, in contrast, doesn't mention cyberbullying as part of its anti-bullying policy. In the district's cell phone policy, however, the district states that a student who uses their cell phone to bully, intimidate, or harass another student may be subjected to school discipline.
In general, Nebraska minimizes a school's liability for behavior or actions that occur off school grounds and outside of school activities. For cyberbullying to fall under Millard's jurisdiction, for example, there must be some relationship to one of the above locations or events.
If and when students use school property, such as tablets or computers, to bully or harass another student, they may potentially open up the school to some responsibility.
Where to File
When families decide to file a lawsuit against a school, one of the first questions is whether to file in state or federal court. A family will file in state court over the violation of state law and in federal court when the issue hinges on the alleged breaking of a federal law.
In some cases, a situation may have both federal and state issues. Families will need to choose which judicial system would be better for them. The Education Law Team at the Lento Law Firm will help families determine which court is the best option for their case.
Suing Schools
Nebraska's Political Subdivisions Tort Claims Act sets the rules on when private individuals may sue the government and government entities in Nebraska. The Act does not address an individual's claim, simply when and whether they may file suit against the government.
The state places some limitations on when individuals can file suit against a government entity. These laws apply only to public schools.
In general, schools and other government organizations will be exempted from liability when they are acting within the law and/or within its discretion. In addition, families must first exhaust other avenues before filing a lawsuit.
In other words, filing a lawsuit against a school cannot be the first step. Some of the actions that families will need to take:
- Reporting the bullying
- Following the four steps listed above
- Following a school's procedures for reporting and addressing bullying
- Giving the school time to conduct an investigation
Families must pursue these avenues and others before commencing any type of formal legal action. The Education Law Team at the Lento Law Firm will work with families to ensure they've completed all necessary steps ahead of filing against a public school.
The caveat is if a school does nothing about a report within a six-month window. In this situation, individuals may then begin a suit against the school.
Nebraska Personal Injury Laws
The specific details of your student's situation will determine the best laws under which to file a lawsuit. One of the more commonly used laws is personal injury, or torts, in formal legal language.
At the most basic, personal injury asks if someone had a duty of care to another person. If they did, the next question is if they breached that duty of care, resulting in some level of injury to the second person.
Schools always have a duty of care to their students. In personal injury cases, the question becomes whether they violated that duty and that violation caused harm to your student.
Families may file a personal injury suit against any school, public or private.
The Nebraska Bullying Prevention and Intervention Lab
Part of the University of Nebraska-Lincoln's College of Education and Human Science, the Bullying Prevention and Intervention Lab focuses on research into bullying. Their research focuses on the underlying reasons and factors that can cause bullying as well as how to build communities that are free from bullying.
While schools are not required to follow or implement any of the lab's research or recommendations, its location in Nebraska means schools do have a geographically accessible resource about bullying.
Your Child Deserves a Safe Place to Learn
Students who are bullied are at increased risk for depression, health problems, and decreased academic performance. They can experience emotional or mental issues related to bullying.
Bullying is not about a kid not being tough enough. Bullying is a form of violence, and all children have the right to attend school and go about their lives without facing harassment.
Schools have a duty of care to their students, and when schools allow bullying to continue or fail to take action to address bullying, families can and should pursue legal action. If you're in Nebraska and your child is being bullied, contact us at 888-535-3686 or fill out an online form.
