Special Education Attorney with Roberts Means Roncevic Kapela, LLC
Bullying in our schools has become a national epidemic and, unfortunately, this is probably the most common phone call I get from parents. Usually it goes something like this: “My child is being bullied to the point that he’s afraid to go to school. The school has not done anything to stop it. What can I do?”
Naturally, many parents who call want me to write a letter to their school corporation or even file a lawsuit against it. Unfortunately, I often have to tell them that there’s not much they can do from a legal standpoint unless they have evidence that (a) the school violated a legal duty, and (b) their child has been harmed—physically or psychologically—as a result. If your child is simply afraid to go to school because of the bullying but hasn’t been emotionally traumatized or physically injured, it will be difficult to bring a legal claim against the school district because the law requires you to prove damages in order to have a case. Being nervous, scared or uncomfortable at school may not be enough to support a legal claim. As the saying goes, “They don’t make Band-Aids for hurt feelings.”
Schools have a duty to protect your child from bullying, but often they look the other way or downplay it, telling parents “Kids will be kids.” They don’t seem to take bullying seriously and rarely punish the perpetrators severely. I have represented several children who have been bullied, assaulted or sexually harassed at school—one to the point of committing suicide. In almost every case, the school could have done more to prevent the bullying from happening.
Indiana does have an anti-bullying law, but it’s not very strong. It only requires schools to have an anti-bullying policy and to report bullying incidents to a database. But schools routinely under-report incidents of bullying and many parents mistakenly assume that they can sue a school if it does not follow this law, which says you can’t sue the school based only on its failure to follow the statute. In fact, if the school doesn’t comply with the statute, its non-compliance is not even admissible in court.
If your child has been harmed, it may still be possible to hold the school responsible in a lawsuit. I’ve used different legal theories against schools where students have been bullied. Schools have a duty to supervise students, to maintain their premises in a reasonably safe condition and to protect students from reasonably foreseeable criminal acts—which bullying incidents often are. Students with special needs may have additional remedies available.
If your child has been bullied at school and suffered physical or emotional harm as a result, feel free to call me at 317/569-2200 or email us for a free consultation.