The school bully is a common stock character in children's books or movies. While a fictional bully may be comedic or menacing, it's not entertaining when your child is the victim of a real-life bully.
Approximately 1 in 5 students are bullied annually. Bullying can vary from physical harassment to gossip and rumors.
The rise of social media over the last two decades has created a new place for students to bully their classmates, and a student's home may not be the safe space it once was. A 2022 survey found that approximately half of teenagers in the United States have said they've been the victim of cyberbullying.
A recent change to the law in New Mexico makes it easier for families to file suit against school districts when schools fail to protect students. If and when a school fails in that duty of care to a bullied student, families may have no choice but to turn to legal remedies.
Bullying can permanently affect a victim's life, damage their educational opportunities, and increase the risk of depression. If and when your child is being bullied, and a school is failing in its duty to your child, the Lento Law Firm's Education Law Team can help. 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?
Merriam-Webster dictionary defines bullying as the “abuse and mistreatment of someone vulnerable by someone stronger or more powerful.” Essentially, one student uses their power, whether that be physical size or social standing, to single out and harass another student. Teachers may also use their position of authority over students to bully them.
In New Mexico, bullying is any conduct that targets a student and:
- Is severe, pervasive, or persistent
- Is physical, mental, or verbal
- Occurs in person or electronically
- Is based on distinguishing characteristics such as actual or perceived race, religion, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation, or disability
- Causes a student injury or may be reasonably expected to:
- Make them fear physical harm to their person or their property
- Negatively affect their physical or mental health
- Substantially interferes with a student's academic performance or attendance
- Substantially interferes with a student's ability to participate in school activities
Behavior and conduct will have to meet this definition for legal action to take place. The severity of an action and the number of times it occurred, including the period of time over which it happened, all factor into determining whether behavior amounts to bullying. A single, minor incident is less likely to be considered bullying under the law compared to one that happens repeatedly.
Less than half of students report being bullied. Students are more likely to report bullying when the actions are repeated or severe.
No one reason exists as to why students fail to report bullying. Students may not want to be labeled a snitch or worry that reporting it may make the bullying worse. One study indicated that bullying often worsens after a student reports the behavior, and at least one expert has advised students to solve the problem on their own.
If bullying worsens after a report, however, that indicates the school isn't properly handling the issue. In New Mexico, failing to prevent and address bullying is against the state's laws.
Cyberbullying
New Mexico's laws cover cyberbullying as well. Cyberbullying includes any bullying that takes place through any electronic device. The law focuses on devices rather than specific apps, programs, or social media. The law defines an electronic device to include newer technology such as tablets and smartphones to landlines and pagers.
Bullying versus Peer Conflict
One of the challenges with addressing bullying is that children and teenagers are developing, and that includes their social skills. This can also make it difficult to know the line between peer conflict, which can be good, and bullying, which is bad.
The difference between conflict and bullying is that conflict generally occurs between two individuals who are on relatively equal footing with both expressing opinions. Bullying, in comparison, involves an unequal power imbalance and is intended to hurt, harm, or humiliate.
The National Bullying Prevention Center adds that, in conflict, one or both students may express remorse, apologize, or discontinue their behavior once they realize they are hurting someone. With bullying, knowing someone is hurt is unlikely to end the behavior or conduct and may even worsen such actions.
Put another way, peer conflict, while difficult at the moment for both students, has a larger advantage of potentially helping students learn about how to resolve disagreements and have conversations. These conflicts can potentially help children mature and improve their interpersonal skills.
Bullying, in contrast, is meant to cause harm or hurt someone. It doesn't help either student improve their interpersonal skills, and while adages may claim that bullying helps “toughen kids,” it's not healthy or productive. Victims of bullying are unwilling participants.
Conflict Turns to Bullying
What can be challenging is when one student, following a conflict or disagreement, escalates their behavior to bullying. As both students initially instigated the behavior or argument, schools may refuse to acknowledge that bullying has happened or operate on the assumption that a student must be completely without fault to be a victim.
If and when a peer conflict escalates to one student bullying another student, parents should document the change in behavior and show why and how a line was crossed. That a student argued or disagreed with another student does not justify any subsequent bullying or harassment.
Safe Schools for All Students Act
In 2019, the New Mexico legislature passed the Safe Schools for All Students Act. This law requires school districts and school boards to put policies into place to prohibit and prevent bullying.
The New Mexico Department of Education has a page about the act and related information on resources about bullying. Some provisions of the bill are worth mentioning in more detail.
Types of Schools
The Safe Schools Act applies to public and charter schools. Private schools are generally subjected to less federal and state regulation. Students who deal with bullying while attending private school, however, do still have legal options.
Bullying Prevention Programs
New Mexico requires that all public schools have a bullying prevention program. This includes training and education for teachers, staff, volunteers, and students.
For students, schools must include information on bullying prevention as part of their health education curriculum. Schools must have training for new employees and annual training for all employees. Volunteers who have significant contact with students must also participate in anti-bullying training.
To see an example of bullying prevention programs, the Santa Fe Public Schools publishes its training and educational programs. K-8 students participate in the Second Step Bullying Prevention Curriculum. Staff receives training on both prevention and intervention.
New Mexico requires that public schools publicize their bullying prevention programs and otherwise make that information available to the public. Knowing what programs and resources a school offers can be important information in a lawsuit, up to and including whether the school implements what it says.
Anti-Bullying Policies
As of 2020, New Mexico requires that all schools have policies in place to prevent and address bullying. These policies must be in student handbooks and include prohibitions on cyberbullying.
Each school board is responsible for setting its district's policies. This includes statements prohibiting both bullying and retaliation for those who report bullying. All districts must have stated policies for disciplinary actions to be taken in response to bullying.
School boards must also include information on how to report violations of a district's anti-bullying policy or any retaliation. Districts must also have a procedure for investigating any bullying accusation.
Districts also have the responsibility to document, report, and maintain records about reported incidents of bullying. These records must be kept for at least four years.
Albuquerque Public Schools include information on Bullying and Cyberbullying Prevention in its Policies and Procedural Directives. The district's prohibition on bullying is an example of what New Mexico requires as part of these new bullying prevention laws:
“Albuquerque Public Schools strictly prohibits bullying by all members of the school community. Albuquerque Public Schools strictly prohibits bullying by students whether on or off campus. Those who encourage bullying may be subject to corrective action. Bullying incidents shall not be tolerated by any Albuquerque Public School employee.
Albuquerque Public Schools prohibits reprisal or retaliation against any person who reports an act of bullying.”
Information on disciplinary action, the location and context of the bullying, staff responsibilities, student and parent training, and corrective action accompany this statement. When bullying occurs, one question becomes whether a school followed its stated policies and procedures, as required by New Mexico law, when dealing with bullying.
Disciplinary Actions
Part of any lawsuit will include what a school did or did not do to the student accused of bullying. That families of a bully's victim disagree with a school's decision is not, in itself, enough to show a school failed in its duty to a bullied student. Schools have a duty of care to both students.
New Mexico requires the use of progressive discipline when addressing bullying incidents. School districts must have a list of consequences for students who bully other students.
Progressive discipline focuses on correcting and addressing a student's misbehavior without resorting to traditional suspension or expulsion. It may also involve restorative school practices to repair harm done as a result of the student's misbehavior.
Examples of progressive discipline:
- Meetings with the student and the student's parents
- Reflective activities, e.g., assigning a student an essay to write about their misbehavior
- Counseling
- Anger management
- Intervention
- Community service
- Skill-building and resolution activities, including helping students build social and/or emotional skills
In some cases, in-school suspension or expulsion may be used. The caveat is that the expulsion or suspension takes place outside of time in the classroom, such as during lunch or on weekends.
New Mexico states that the goal of any progressive discipline action should meet a list of objectives. In other words, the disciplinary action is not simply punishment. These objectives include:
- “Correcting the student's behavior in an appropriate way
- Preventing future bullying or retaliation
- Protecting the target of the bullying
- Being flexible and focusing on the individual student and situation, such as the student's age, any history of behavioral problems, and the nature and severity of the incident.”
For cyberbullying, consequences are weighed against the disruption to a student's education, and schools should use the least restrictive measure.
Problems may arise when schools focus too much on the student who committed the bullying and not on the student who was on the receiving end of their actions. Schools may not adequately address discipline or solve the root of the problem.
The purpose of progressive discipline – to address the source of the problem – is important. When schools fail to adequately address the issue or minimize discipline, however, they may be failing in their duty to targeted students.
The Elements of Bullying
That bullying occurred may not, by itself, be enough to sue a school. A student and their family must be able to show the school had or should have known of the bullying and either failed to act or acted in a way that was ineffective or made the situation worse.
Different laws will have different requirements to meet as part of a court case. Torts, which is a legal term that refers to civil lawsuits, have the same general elements to meet. The elements are:
- A person or an organization has a duty to a person: here, a school has a duty of care to students
- The organization breaches that duty, such as failing to address bullying
- The individual was harmed or hurt, such as a student facing bullying at school
- The breach of that duty was the cause of that harm, such as a school's action or inaction resulting in the student's harm from bullying
A cause can be either direct or proximate. Direct causation is “A hit B, B gets hurt.” The proximate cause is more indirect: “A hit a box, which fell and hit B on the head.”
In bullying situations, a school's action or inaction will usually be the proximate cause of bullying. In other words, the school and school staff did not commit the bullying, but their action or lack of action allowed the bullying to occur.
In general, all of these elements must be met to win a case. The Lento Law Firm's Education Law Team works with our clients to build a case.
Where to File
When building a case, one of the questions will be whether to file in federal or state court. One of the key factors when making this decision is what laws a case will rely upon. Cases that rest on federal law will be filed in federal court, and cases that are based on state law will be filed with New Mexico Courts.
Families filing against a school district are civil rather than criminal matters. An area's district attorney will handle cases and situations when criminal activity has allegedly taken place.
A 2023 case within the Albuquerque School District involved both criminal and civil cases. Prosecutors filed criminal charges against a second-grade teacher for sexually assaulting a student. The teacher was later found guilty, but more former students came forward as a result of the trial. The case also introduced evidence that the school district had known the teacher was misusing his position to abuse his students but had allowed him to continue teaching for years.
Given this information, at least one family has filed a lawsuit because of the school's action and inaction. That lawsuit cited the district's alleged failure to investigate previous claims about the teacher and that the school's failure to investigate and/or remove the teacher from the classroom resulted in their child being abused.
Criminal activity isn't necessary for families to show a school's liability. Evidence that a school district failed to investigate and/or ignored bullying allegations would likely be important in a lawsuit. In the 2023 Albuquerque example, the school district potentially failed not only to properly investigate but allegedly moved the teacher to a different school in response to allegations of abuse.
Federal Law
No federal law directly addresses bullying. When families file against a school district in a federal court, they'll be relying on other federal laws. Clients do not need to know what laws they want to file under when they contact the Lento Law Firm. Our attorneys will use their knowledge of the legal system to build a case, including which laws are the most relevant.
Civil rights laws are the ones most commonly used to address bullying claims on the federal level. These laws include:
- The Civil Rights Act of 1964, especially Title IV, which covers race-based discrimination, and Title VI, which bans discrimination in federal programs
- Title IX of the Education Amendments of 1972 prohibits discrimination based on sex and gender
- For disability-based discrimination, individuals may choose to file under The Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, or the Individuals with Disabilities Education Act (IDEA)
This list isn't exclusive. Your student's specific situation may involve different federal laws.
New Mexico Law
In 2021, New Mexico revised its laws and eliminated the qualified immunity defense for public officials, including school staff and school districts. Claims made under the New Mexico Civil Rights Act may open up government officials to personal liability.
The New Mexico Tort Claims Act provides more details on when families may file suit against school districts. It does not have to be the exclusive remedy. It also establishes that damages are capped at 2 million dollars while allowing for an annual cost-of-living adjustment. The cap amount includes any attorney fees and costs.
Individuals must file within three years of an event. They should file under the Tort Claims Act when:
- A public employee, such as a school staff member, while acting within the scope of their employment
- Committed a wrong against your student and/or violated their constitutionally protected rights
In April 2022, two families filed lawsuits against Portales Municipal Schools using these revised laws. In this case, the families allege the teacher, who later resigned, used their position to bully students for offering a different opinion. The teacher allegedly encouraged other students to bully the students who had expressed a different opinion and, after those students moved to a different English class, supposedly told the remaining students about the problem and.
The two families used the New Mexico Tort Claims Act, along with the New Mexico Civil Rights Act, as a basis for the lawsuit.
False Accusations
The flip side of bullying in a school setting is a false accusation of bullying. In some cases, false accusations can be a form of bullying.
False accusations can be damaging because other members of the school community may form opinions or rush to judgment. Individuals may not believe that someone would knowingly lie about being bullied or about someone else's behavior. A student facing false accusations of bullying may not receive the same level of support or sympathy as a student subjected to bullying.
Schools may also be less sympathetic or rush to disciplinary actions without a thorough investigation. False accusations, even if later proven to be false, can permanently damage a person's reputation.
False accusations are not uncommon. While no comprehensive research has been done on students falsely accusing other students, statistics on teachers facing false accusations are sobering. One 2015 study found that more than 20 percent of teachers faced false accusations. Such accusations hurt careers and were cited as one of the primary reasons some teachers were considering switching professions.
Students who face false accusations may face similar damage to their reputations or social standing or be unfairly subjected to school discipline. Such allegations may affect their schoolwork, their relationships with teachers and other students, and even their long-term goals and plans.
When a child faces false accusations, parents should focus on how these allegations are a form of bullying. False accusations cause harm and can make a student feel powerless.
Take Back Your Power
Bullying, on its own, can affect all aspects of a person's life. It can bring mental, physical, and emotional pain and issues. When a student faces bullying in school, and the school doesn't act to protect that student or limit the damage, students may feel doubly vulnerable. They're not only facing bullying but losing faith in adults whom they believed they could trust.
When a school district fails in its duty to protect a student, families have various avenues to address the problem and seek a legal remedy. The Lento Law Firm's Education Law Team can help you build a case, select the most relevant laws, and determine where to file. Your child has the right to an education, and that right includes feeling safe in school. If you're in New Mexico and your child is being bullied, contact us at 888-535-3686 or fill out an online form.
