Bullying can be a traumatic experience for any child or teenager. It can be especially difficult when it occurs in school, and a student no longer feels they can trust teachers or other school staff.
In West Virginia, students have the right to feel safe attending school. Being targeted for bullying or harassment and having a school fail to address the problem undermines that sense of security. Students who are bullied are more likely to struggle in school, be depressed, experience anxiety, or have physical symptoms such as loss of sleep or appetite. These effects can continue long after the bullying ends and sometimes into adulthood.
If your child has been bullied and their school, either by action or inaction, has failed to address the problem, you do not have to stand idly by. The Education Law Team at the Lento Law Firm helps West Virginia families advocate for their children. Call us at 888-535-3686 or fill out an online form.
Bullying in West Virginia
Nationwide, approximately 20 percent of students report being bullied on school property, and about half say they've been the target of cyberbullying. Older teenage girls are the most likely to be victims of cyberbullying. Approximately 20 percent of junior high school students report being bullied at school.
West Virginia's numbers are both similar and different from national statistics. In 2017, slightly less than 24 percent of high school students reported being bullied on school grounds. Nineteen percent reported being cyberbullied. This survey covered both private and public school students. Two potential reasons for the disparity in cyberbullying statistics are:
- The nationwide numbers were a different survey and not an aggregation of state-level data
- Such surveys may reflect school-related cyberbullying rather than all electronic bullying and harassment
A 2023 state-level report made to the Legislative Oversight Commission on Education Accountability indicates that, in West Virginia, bullying is most common during junior high school. While this report focused on disciplinary referrals, given that bullying is an imbalance of power, students tend to bully students their age or younger rather than older. The 2023 report found that 70 percent of bullying and harassment-related disciplinary referrals were for students in the sixth through eighth grades, with the seventh grade being the most common.
Another potential reason for the disparity is whether a survey bases its numbers on actual bullying instances or just those that are reported to schools. One study found that less than half of students between grades 6 and 12 report bullying or harassment to their school.
That a student failed to report bullying doesn't automatically reduce a school's liability. If and when students do not report bullying, the question becomes whether school staff and teachers should have noticed. One reason students may not report bullying is out of fear that speaking up will make the harassment worse or that they'll be labeled a snitch.
What is Bullying?
West Virginia includes harassment and intimidation in its definition of bullying. These actions must be intentional and can be an action or communication that is physical, written, verbal, or electronic. The state also includes threats in its definition.
These acts may be considered bullying when a reasonable person would know that these actions or communications would:
- Physically harm another student
- Damage another student's property
- Place another student in reasonable fear of harm to their person
- Place another student in reasonable fear of damage to their property
- Create an intimidating, threatening, or emotionally abusive environment
- Disrupt or interfere with the educational process or other normal operations within a school
West Virginia limits school liability to school property, school buses, school bus stops, and school-sponsored activities and events. Unless a school district's specific policy differs from the state's policies, students' off-campus conduct falls outside of a school's scope of responsibility.
Families will need to find some tie to one of the above to open a school to liability for their child's bullying. This can be especially difficult with cyberbullying, which could potentially originate from any place in the world.
Cyberbullying
West Virginia includes electronic communications, also known as cyberbullying, in its prohibition on bullying. Appreciating the changing nature of technology, the state includes a non-exclusive list of what constitutes cyberbullying.
Similar to more conventional bullying, cyberbullying may be an act, communication, transmission, or threat. It can be made over:
- Telephone
- Wireless phone
- Computer
- Pager
- Any electronic or wireless device
The state includes image or voice transmissions or files as well as email or text messages as potential avenues for cyberbullying. This list also isn't exclusive.
One of the challenges of cyberbullying is that West Virginia doesn't require schools to police or investigate off-campus conduct. The state's laws do, however, regulate conduct that occurs on school property.
What Isn't Bullying
As one West Virginia principal commented, “Kids are still kids, and they are learning. They don't always know how to interact with each other in an appropriate way.”
Knowing the difference between healthy interpersonal conflict and bullying can help parents and guardians advocate for their children. Determining the line between the two can sometimes be difficult.
Interpersonal conflict generally involves students who are in similar positions. Bullying often involves a power disparity. Interpersonal conflict can be difficult but tends to have beneficial side effects in teaching students how to communicate and work with others. Bullying, on the other hand, is intended to harm another student, whether physically, mentally, socially, or emotionally.
As one expert commented, interpersonal conflict isn't intended to hurt another person. Students will often stop their behavior or actions once they realize they're hurting the other person. In comparison, with bullying and harassment, knowing they're hurting someone may encourage a student to continue with their behavior or actions.
What makes this distinction complicated is when what began as an interpersonal conflict escalates into bullying. The fact that two students initially disagreed doesn't justify bullying or harassing a student. Schools may decline to view a situation as bullying because both students were initially at fault.
That a student spoke out of turn or argued with another student doesn't justify their being bullied. Schools cannot evade their responsibility because students disagreed at one point.
Bullying and the First Amendment
One concern among some schools in West Virginia is ensuring that bullying policies do not interfere with a student's right to free expression or speech. School policies may include sections that say that bullying policy shouldn't conflict with any student's right to free speech and free expression.
Greater Beckley Christian School's anti-bullying policy includes an interpretation that it shouldn't affect a student's right to express their “religious, philosophical, or political views” unless they cause an “actual, material disruption” to the school.
Bullying and Characteristics
West Virginia's bullying policies do not include specific protections due to characteristics such as a student's race, ethnicity, or disability. Without these protections, one potential area of concern is the potential to harass a student under the guise of another student's freedom of expression. Similarly, schools shouldn't use freedom of expression as a defense against failing to protect a student who is bullied due to characteristics such as their religion or sexual orientation.
Elements in a Civil Lawsuit
To succeed in an action against a school, a case generally needs to prove three elements:
- The school had a duty of care for that student
- The school failed in that duty
- The student suffered an injury or harm because of the school's failure
These are general requirements. Specific laws may have additional requirements.
That a student was bullied will rarely be enough to show that a school failed in its responsibilities. A school, either by action or inaction, must have somehow failed that student in preventing or stopping bullying or harassment.
The Education Law Team at the Lento Law Firm can help families understand what evidence is needed for specific claims.
Duty of Care
Schools have a duty of care to students. They are said to act in loco parentis, or in a place of a parent, during the school day or school activities. To succeed in a legal action against a school, families need to show that a school failed in that duty of care.
West Virginia has included this duty in its laws. The West Virginia Administrative Code requires that schools provide students with a safe environment that is conducive to learning and teaching.
The state also has a bill of rights for students. Among the other rights students have are:
- The right to be treated with courtesy and respect
- The right to attend school and ride a bus without being bullied, harassed, or intimidated.
Requirements for West Virginia County Boards of Education
West Virginia requires that every public school's board of education establish a policy that prohibits harassment, intimidation, and bullying. Developing these policies should involve not only members of the district's staff but also students, parents or guardians, school volunteers, and community members.
The minimum requirements for a board of education's anti-bullying policy are:
- A statement that bans harassment, intimidation, and bullying of any student in the following locations:
- School property
- School buses
- School bus stops
- School-sponsored activities
- A definition of harassment, intimidation, and bullying that is equivalent or more protective than West Virginia's definition
- The process to report incidents of bullying, harassment, and intimidation, e.g., prohibited incidents
- Details on when school staff must report potential incidents of bullying, harassment, and intimidation
- Requirements on how schools must notify parents or guardians of students involved in prohibited incidents
- How schools document any reported prohibited incident
- Information on how schools should respond to and investigate any reported prohibited incident
- Procedures on how to protect victims of bullying, harassment, or intimidation from future incidents and how to protect those who report an incident from retaliation
- Potential disciplinary actions for any student found to be guilty of harassing, intimidating, or bullying another student
- A privacy statement that details how information on reported prohibited incidents is confidential and exempt from other disclosure requirements
- A process for how each county board will:
- Report incidents to the West Virginia Education Information System
- Compile an annual report on known incidents of bullying, harassment, or intimidation
These are the minimum requirements that school boards must meet to comply with state law. School boards or districts may choose to implement additional requirements.
Boards of education may use the state's model policy when drafting its policy for K-12 schools. These policies must appear in a student handbook or other publications that detail the district's rules, procedures, and standards of conduct.
West Virginia Model Policy
Originally drafted in 2011, the West Virginia Model Policy has undergone several revisions since the original version. The state makes the model available on the West Virginia Board of Education (WVBE) Policies website as the “Expected Behavior in Safe and Supportive Schools.”
The 2019 version of the model policy is 45 pages and includes the following sections:
- Student Protections
- Inappropriate Behavior and Meaningful Interventions and Consequences
- Procedures for Addressing Allegations of Inappropriate Behaviors
- Procedures for Taking Action on Substantiated Inappropriate Behaviors
- Alternative Education Requirements for Disruptive Students
- Appendices on Behavior and Definitions, Interventions and Consequences, and Requirements
Two considerations when determining if a school has violated its duty of care are:
- How did the county board of education incorporate the model policy into its anti-bullying policy?
- How did a school's behavior differ from both the county policy and the model policy?
Example: Public School Policy
Schools cannot provide less protection than the state's model bullying policy, but they can do more. Families should pay attention to their school's specific policies.
Monongalia County Schools's policy goes beyond the model policy. The county has specific policies on bullying related to a student's characteristics, such as:
- Race
- Religion
- National origin
- Gender
- Socioeconomic status
- Academic status
- Gender identity or expression
- Physical appearance
- Sexual orientation
- Any disabilities
The district includes a link to report bullying and harassment on its website.
Private Schools
West Virginia doesn't require private schools to follow the state's policies on bullying, intimidation, and harassment. Private schools may instead choose to voluntarily adopt these policies or design their own. Families should know their own school's policies as they differ from state requirements.
Covenant School, for example, doesn't have an explicit policy on bullying. The school does require, as part of its code of conduct, that students treat other students with kindness. The school also lists “persistent patterns of bullying” as a major infraction that could potentially get a student expelled.
In comparison, Greater Beckley Christian School's anti-bullying policy is similar to the state's model policy. The policy extends to school premises, school transportation, and school-sponsored events and activities. The school requires teachers to report any potential bullying incidents. The school's policy includes a notice that disciplinary action includes expulsion, and when warranted, the school may refer individuals to local law enforcement.
Charter Schools
West Virginia doesn't require public charter schools to follow the same laws about bullying as traditional public schools. Similar to private schools, while charter schools may have anti-bullying policies, they aren't required.
While the wording differs, West Virginia Academy's anti-bullying policy is similar to the state model in essentials. The academy doesn't require teachers or staff to report bullying incidents. The school defines three categories: bullying, hazing, and electronic bullying. The policy includes cyberbullying that occurs outside of school hours if and when it creates a hostile school environment for either students or staff.
Eastern Panhandle Preparatory Academy's Anti-Bullying Policy is more detailed than the state's model policy. It requires staff to report any witnessed bullying. The school limits its responsibility for physical bullying to school premises, school events, school transportation, and going to and from school. Cyberbullying doesn't have any such physical restrictions.
The academy allows for anonymous, oral, and written reports of bullying. All administrators must complete a written report for all investigations into alleged bullying.
These are just two examples. Again, families of students who attend charter schools need to know their school's specific policies. Unlike public schools, policies may vary considerably between schools.
Training Requirements
West Virginia recommends but does not require schools to provide anti-bullying training and prevention task forces for staff and students. When federal funds are available for these purposes, schools must:
- Provide training on its harassment, intimidation, or bullying policies to both school employees and volunteers who come into direct contact with students
- Develop programs to educate students on the district's bullying policies
- Incorporate the information on the district's bullying policies in each school's employee training program
In other words, schools have no obligation to provide training except when they have federal funds to establish and run these programs.
Bullying Prevention
Moundsville Middle School, part of Marshall County Schools, gained attention in 2023 for its programs designed to reduce bullying in schools. While the entire district follows these three programs, Moundsville has become the model of bullying prevention efforts.
The district has three programs to address and reduce bullying:
- Partners and Prevention, which focuses on building relationships and addressing students' social and emotional needs
- Workshops on how to de-escalate conflict
- Positive Behavioral Interventions and Support, the newest of the three, focuses on behavior correction and improvement rather than discipline
Schools may implement any of these programs. One question involving school liability is what a school has done, if anything, to prevent and limit bullying.
That a school has different programs doesn't automatically mean they failed in their duty of care to students. Rather, comparisons can potentially be useful as one part of a case.
Suing a Public School? Give West Virginia Notice
West Virginia requires that, before filing a lawsuit against a public school, individuals provide written notice to the chief officer of the governmental agency and the Attorney General at least 30 days before filing. This written notice must be sent by certified mail with a return receipt requested. The notice must include the alleged claim and the relief desired.
Damages, Public Schools, and Private Schools
Whether a student's school is public or private can affect their ability to file for and collect damages. It may also influence the amount of damages a student may be awarded.
Civil law recognizes two types of damages: compensatory and punitive. Compensatory damages are established by evidence. This means a student's injury and costs, such as medical care. Courts often rely on the fair market value when determining compensatory damages.
Punitive damages are more fluid. Punitive damages are generally awarded when one party – here, the school – was especially negligent or malicious.
Private schools fall under West Virginia's general rules on actions and suits. They may be liable for both compensatory and punitive damages. As of 2023, the state caps punitive damages at whichever is greater, $500,000, or four times the amount of compensatory damages.
Public schools fall under the laws related to lawsuits against the government. While there's no cap on economic compensatory damages, noneconomic compensatory damages are capped at $500,000. Courts cannot award any punitive damages in cases against the government.
Federal Law
No federal statute directly addresses bullying. Civil rights laws are the most commonly used to address bullying claims on the federal level. These laws include:
- The Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act (IDEA) for bullying due to a student's disability
- Title IV of The Civil Rights Act of 1964 focuses on race-based discrimination
- Title VI of The Civil Rights Act of 1964 prohibits discrimination in federal programs
- Title IX of the Education Amendments of 1972 bans discrimination based on sex and gender
This list isn't exclusive. Each student's unique situation may involve different federal laws.
Deciding Whether to File in Federal or West Virginia Court
One of the key questions of litigation is deciding in which court to file. Cases based on state law will generally be filed in West Virginia courts. Those based on federal law will go into the federal court system.
In most situations, filing in court should be a family's last avenue to address the issue. Families should first file a report, go through their school's investigation procedures, and attempt to resolve the problem via meetings with school staff. Parents and guardians should want to show that they attempted to find a resolution without success before resorting to the court system.
The Education Law Team at the Lento Law Firm assists our clients in pursuing all available avenues to resolve bullying incidents. When our clients decide to file suit, we help them determine the best court for their situation.
Protect Your Student
When your child faces bullying – either in person or online – it can be devastating and traumatic for the entire family. Watching their child hurt can make it difficult for parents to assess the situation from a logical standpoint and decide on the best path to resolve the situation.
The Education Law Team at the Lento Law Firm appreciates the emotional toll bullying takes not just on students but also on those who love them. We walk parents and guardians through their options and how to find the best resolution for their situation and their student. If your child attends school in West Virginia and is being bullied, harassed, or intimidated, call us at 888-535-3686 or fill out an online form.
