Litigating Against South Dakota Schools: Bullying Victims

South Dakota schools have an obligation to educate children in South Dakota. Seems pretty straightforward. A school's obligations don't end with educating children, though. Schools also have a responsibility to protect children and to create an accepting, welcoming environment for them. That's not merely a moral responsibility or "the right thing to do." It's actually part of the law.

The right to a public education is afforded by the U.S. Constitution. Any goods and services offered by a state must be available to all citizens equally. All states in the U.S. have agreed that education is important enough that it should be available to all minors. The courts have further made clear that when students are placed in hostile environments—as, for example, when they are being harassed or bullied—it restricts their access to education, necessarily interfering with their rights.

In fact, South Dakota law prohibits explicitly bullying in schools, and it places the burden on schools and districts to prevent bullying. This means that if your child has suffered bullying while at school, you have a right to raise questions about what happened, and you may further have the right to hold their school or district accountable for any damages they may have suffered.

Law or no law, it's never easy to hold an institution responsible for its mistakes, especially a government institution. You don't have to take on your child's district alone, though. The Lento Law Firm is here to help. Our Student Defense Team includes skilled litigators who practice specifically in the field of education law. We know the South Dakota education system, and we have experience helping students get the justice they deserve.

If your child is being bullied, find out how we can help. Call the Lento Law Firm today at 888-535-3686 or contact us online.

First Things First: Addressing the Problem

In what follows, we offer a guide to holding school districts responsible for bullying and to get fair compensation for any damages your child and your family may have suffered. Fair compensation has practical benefits, but it can also help with the healing process

If your child's being bullied right now, though, you can't wait for compensation. You need to act immediately to protect them. School bullying is always harmful, no matter how minor or insignificant it might seem. Obviously, it interferes with the business of learning and can have short-term consequences for how a kid performs in school. Beyond these short-term effects, though, bullying can damage a child's psychological and emotional health. It can leave them afraid of school and can, in some cases, bring on symptoms of PTSD. None of these effects even take into account any physical harm a bullied student might suffer. The moment you discover your child is being victimized, you have to act quickly to put a stop to it.

You should never retaliate against a bully or their family, and you should never encourage your child to do so. There are powerful actions you can take, though, to address the situation.

• Start by contacting your child's school. Most educators take bullying extremely seriously, and you can usually count on teachers and administrators to take action to protect your child.
• If, for some reason, your district refuses to act or isn't acting quickly enough, try contacting the South Dakota Department of Education. It has authority over all public schools and districts in the state and can bring legal and financial pressure to bear when necessary.
• If nothing else is working, simply take your child out of school, at least temporarily. Missing school is never an ideal situation, but in the case of bullying, it is better than the alternative.
• In the most serious cases, you may need to contact local law enforcement, especially if violence is involved or there is the potential for violence.

It's not always easy to know what to do when your child is being threatened. They're stressed, you're stressed, and the entire situation can quickly become overwhelming. Remember, though, that you aren't alone. The Lento Law Firm isn't just here to help you litigate over damages. We know what you're going through, and we know how to get you the immediate help you need. Don't wait to see what might happen. Let us take the burden off of you. Call 888-535-3686, or take the time now to tell us about your situation.

South Dakota Anti-bullying Laws

Your first line of defense for your child is South Dakota's anti-bullying laws. These laws are designed to protect your child, but they also set up expectations that school districts must meet, and this can lay the groundwork for litigation if they're not meeting those expectations.

First and foremost, the law mandates that all districts must develop their own anti-bullying policies. At a minimum, such policies must include

• A clear statement outlawing bullying;
• A description of behavioral expectations for students in the district;
• A list of disciplinary consequences for bullying;
• A procedure for reporting bullying, including some means of making anonymous reports;
• A procedure for investigating reports of bullying.

State law further provides a “model policy” for districts to use while they are creating their own. Among its many provisions, this model policy requires that all staff report any knowledge they may have of bullying to their building supervisor.

It is worth noting that South Dakota law does not prescribe punishments for districts that refuse to comply with these anti-bullying provisions. Additionally, it provides protection from litigation for any district or district personnel when they properly follow their own anti-bullying policy. Nevertheless, by taking notice that bullying is a problem and by requiring districts to develop their own anti-bullying policies, the law places the burden for preventing bullying squarely onto school districts.

South Dakota Bullying Definition

The law also contains a definition of bullying. This definition can be important for establishing whether or not a bullying incident actually occurred.

• The core of the definition contains two important parts. First, bullying is a “pattern of repeated conduct.” This means a single incident may not qualify. In addition, bullying is described as causing “hurt or psychological distress.”
• The law notes that bullying can be defined by the action itself. That is, it can include acts like
• Threats
• Intimidation
• Stalking
• Physical violence
• Destruction of property
• Bullying can also be defined, though, by its effects, which can include
• Placing a student in reasonable fear of harm to their person or damage to their property
• Substantially interfering with a student's "educational performance."
• Substantially disrupting school operations

Finally, the law contains some important provisions regarding cyberbullying. The definition of bullying includes language about the “threatening use of data or computer software.” Elsewhere, the law notes that the use of “electronic devices” to intimidate should be treated as bullying no matter where and when the act occurs. Crucially, this means that social media posts constitute bullying, even if they take place off-campus and outside of normal school hours.

South Dakota's Liability Laws as They Apply to Bullying

South Dakota's anti-bullying laws are designed to protect students, but they do not include a mechanism for holding anyone accountable when bullying occurs. Bullying in and of itself does not constitute a criminal act (though, of course, bullying can include criminal acts such as assault and destruction of property). Districts are required under the law to punish those who participate in bullying, but such punishment does not extend to criminal penalties.

Likewise, the law does not include any statement threatening consequences for school districts or school personnel who fail to or refuse to do their job under the law.

Accountability in such cases is then left to South Dakota civil courts, and “punishments” take the form of financial penalties and compensation to victims for any damages they may have suffered.

You always have the right to file a civil suit against private South Dakota individuals and organizations for their "torts"—acts or omissions that bring harm to you or your family. South Dakota additionally grants citizens the right to hold government entities—school districts, for instance—liable for their torts.

Parents are sometimes reticent to sue for damages when their children are victims of bullying. The fact is, though, that the law gives you this right. More importantly, a lawsuit is the only way to hold districts to account when they fail to live up to their responsibilities under the law. It is a necessary and important part of our justice system.

South Dakota Private School Liability to Bullying Victims

South Dakota's anti-bullying laws apply specifically to public schools. What can you do if your child is bullied while attending a private school?

Unfortunately, there are no South Dakota laws preventing private school bullying. As a result, the only recourse for dealing with many aspects of bullying is to ask the school to intervene. If your child is being teased for their hair, their freckles, their weight, or their name, the school itself has sole authority to decide whether or not to put a stop to it.

However, there are two important exceptions to this general rule.

• First, if the bullying involves any kind of criminal component—like assault and battery, for instance, or privacy violations—you can hold the bully criminally responsible, and you can hold the school responsible for failing to protect your child from the crime.
• Federal law prohibits harassment of certain protected groups of individuals, such as the disabled, minorities, and women. If your child is bullied on the basis of their status in one of these groups, you may be able to file suit in federal court against the school.

Federal Anti-bullying Laws Supporting Liability

The federal government has mounted a vigorous anti-bullying campaign in recent years. Strangely, though, there has been no move to pass legislation restricting bullying in public schools. By and large, your best resource for holding a district accountable remains South Dakota law.

However, federal law protects certain groups of individuals from “harassment” if they're attending a school that receives federal money. This can include both public and private elementary and secondary schools. For example,

• Title IV prohibits discrimination on the basis of race, color, religion, sex, or national origin. “Discrimination,” in this case, includes all forms of harassment since harassment has the general effect of preventing a person from receiving equal treatment under the law.
• Title IX specifically bars sexually-based harassment at any educational institution.
• Section 504 of the Rehabilitation Act of 1973 guarantees students with disabilities equal access to public education. Harassment, by definition, prevents such equal access.

Federal civil suits can be more complicated to file than state suits. This is because the burden of proof is higher. You must be able to demonstrate that harassment occurred and that your child is a member of a protected group. Further, you must be able to prove that the harassment specifically had to do with their protected status. That can be a high bar to meet.

However, federal anti-harassment laws do offer one more route to holding schools responsible for how your child is treated. If you're unsure as to whether state or federal civil litigation is the better path, the attorneys at the Lento Law Firm can help you assess your particular situation and make the decision that's in your child's and your family's best interests.

Compensation for Bullying Victims in South Dakota

We've talked about compensation as an important form of justice in bullying cases. What exactly does compensation look like?

Compensation in a civil lawsuit is meant to help you recoup any losses you may have suffered as a result of another person's or an entity's mistakes or negligence. Those losses can be of different types. Often, they involve direct out-of-pocket expenses you may have incurred. If your child was bullied, for instance, you may have had to pay for

• Medical expenses
• Therapy or counseling expenses
• Replacing damaged items like computers, clothes, book bags, or glasses
• Wages your child lost because they couldn't go to work or lost earning potential if the bullying could affect their future ability to work

Not all damages are so easy to quantify, however. Many of the most damaging aspects of bullying aren't readily apparent. These can include

• Pain and suffering
• Mental and emotional distress
• Embarrassment
• Humiliation
• Fear or fright
• Shock
• Loss of enjoyment of life

If your child has been a victim, your family is entitled to compensation. It isn't always clear what kind of damages you've suffered, but the attorneys at the Lento Law Firm will sit down with you, review your situation, and help you determine what's fair.

The First Steps Toward Litigation

Before you pursue civil action against your child's school district, you want to make sure that you've done your due diligence as the parent. It is important that the court recognize that you did everything in your power to respond appropriately to the situation. Here are some pre-suit steps to take to help strengthen your case.

• The moment you learn your child is being bullied, report it to their school. In most cases, teachers and administrators will take action. Keep in mind as well that you cannot hold someone responsible for their failure to respond to an incident if you do not give them a chance to respond.
• Participate in any investigations or hearings. Again, you cannot expect the school to react properly to a bullying incident—to, for example, hold bullies accountable—if you don't play your part in the process.
• In the unusual event that your school doesn't immediately act to protect your child, contact state or federal education authorities. You want to demonstrate that you take the situation seriously and have done everything in your power to resolve the situation appropriately.

Finally, any time you are involved in a legal matter, it's important you document absolutely everything that happens. Start by having your child write a summary of what they experienced. Make notes about what actions the school took in response. Keep a record of contact you have with anyone connected to the case. And remember: the Lento Law Firm's Student Defense Team is here to help. We can't be your child's parent, but we can work with you to make sure you're dotting your “i”s and crossing your “t”s.

Pursuing a South Dakota Civil Action on Behalf of a Bullying Victim

The moment you contact the Lento Law Firm, we'll take legal action on your behalf. Here's what you can expect from us during the litigation process.

• First, we'll undertake a full pre-suit investigation. This involves collecting all available evidence and sifting through it to determine what is relevant and what will be admissible.
• Next, we'll conduct legal research on the factors in your case and use this research to draft an official complaint. We'll file this complaint with the appropriate court. Keep in mind that South Dakota sets a one-year limit on filing complaints against government entities. We'll make sure your documents are filed correctly and on time.
• We'll then issue an official summons to anyone involved in the incident. This summons requires them to sit for a deposition, during which they must answer questions about exactly what happened.
• You'll likely be deposed as well. We'll be at your side throughout this process, though, to help you answer questions and to protect your rights.
• As we make preparations for a trial, we'll also negotiate with the district. Most civil cases are settled out of court, but it's important that any settlement provides you with the compensation you deserve.
• Should your case go to trial, we represent you before the court in all matters. We make opening and closing statements on your behalf, for example. We submit evidence, conduct examination and cross-examination, and respond to defense arguments.
• After a settlement has been reached or the court has ruled, your attorney will collect any monies you're owed. Alternatively, we can work with you to file any necessary appeals.

Defending Disciplinary Charges Against a Bullying Victim

Bullying incidents can be complex. One of the unfortunate consequences, for instance, can be that victims wind up accused themselves. Bullies and their families sometimes accuse victims in order to shift blame from themselves. School districts that can't properly sort out the facts sometimes decide to charge everyone with misconduct. Understandably, your child may have retaliated against their bully out of frustration or simply to protect themselves.

If your child has been accused, the Lento Law Firm can protect them. While we can be fierce courtroom litigators, we're also comfortable handling school disciplinary cases. We can, for instance,

• Respond to any complaints made against your child
• Document what happened and make sure the school has all the facts
• Help prevent the situation from escalating
• Represent your child during investigative meetings and hearings
• Hold the district accountable for following its own policies
• Negotiate with school and district officials to come up with fair resolutions
• Use additional channels to pressure the district, such as the South Dakota Board of Education.

The Lento Law Firm was founded to help students. There is no educational issue we can't handle.

Helping Your Student Avoid South Dakota School Bullying

We started this guide by saying that your most important job in these situations is to protect your child from bullying. It's worth pointing out, here at the end that the very best kind of protection is prevention. That is, your goal as a parent should always be to stop bullying before it starts. How can you do that?

• First, talk openly with your children about bullying. Make sure they can recognize bullying. Talk about the damage it can cause and the consequences those who engage in it can face. Make sure they don't participate in bullying themselves, and if they should become victims, make sure they don't retaliate.
• Encourage your child to report bullying, whether it's happening to them or to someone else. Most schools have designated personnel who deal with reports, but all faculty and staff are responsible for making reports.
• Support your child. If they tell you they're being bullied, listen to what they have to say. Understand that even “teasing” can be hurtful. Stand up for your child when you need to.
• Encourage your kids to talk about bullying with their friends. The more students in your school district recognize the dangers of bullying; the less likely bullying is to occur in the first place.

Premier Representation for South Dakota Bullying Victims

The Lento Law Firm was founded to help students. We know the law; we know the South Dakota education system, and we're highly experienced. You can count on the firm's Student Defense Team to do everything in our power to protect you and your family and to hold your district accountable if it's been negligent.

If your child is being bullied, contact us today at 888-535-3686 or use our automated online form to find out how we can help.