Legal Forum

Stopping Bullying and Harassment

Dr. Dave Dagley, Professor Emeritus, University of Alabama and Dr. Amy Dagley, Associate Professor, University of Alabama at Birmingham

In 2009, the Alabama Legislature adopted the Student Harassment Prevention Act (Code of Alabama (1975), § 16-28B-1, Ala. Act 2009-571)), and, in 2018, renamed the act the Jamari Terrell Williams Student Bullying Prevention Act (Ala. Act 2018-472). A case brought under this act was recently heard in the 11th Circuit Court of Appeal. The case number is No. 22-11317 (11th Cir. September 1, 2023). In that case, the federal district court granted the school district summary judgment, and the appellate court affirmed, based upon the narrow, specific, and exacting standards for awarding damages in cases about student-on-student harassment. In these materials, we typically select a case to describe in detail the facts of the case, the application of law to the facts, and lessons we might glean for school administrators from the case. In this particular case, the appellate court offered only one generalized criticism of the school defendants, in the second paragraph of its opinion:

The (parents) appeal the district court’s grant of summary judgment on all their claims. After careful consideration of the record, and with the benefit of oral argument, we affirm. Although the response of the school system and its officials was truly discouraging, the standard for relief of student-on-student harassment is exacting. Thus, despite the tragic facts of this case, we affirm the district court’s decision granting summary judgment to the school system and its officials. (p. 3.)

The court apparently heard criticisms in oral argument, but, other than the oblique statement above, provided no information about its criticism in its opinion. Consequently, we offer no criticism of our in-state colleagues. In this commentary, we choose to look more at the Alabama statutes on harassment, hazing, and bullying of students, and suggest to all schools and school districts a more comprehensive and safer path, for both students and school personnel.

Before the anti-bullying act, the Legislature adopted an anti-hazing law, which applied to schools, colleges, and universities. Code of Alabama (1975), (Ala. Act 1981-824). It defines hazing more broadly than conveyed here, but generally includes endangering the mental or physical health of another student, or threatening physical violence to another student, and is limited to actions taken and situations created in connection with initiation into or affiliation with any organization. The primary consequence for hazing is loss of public funding, scholarships, or awards.

The Jamari Terrell Williams Student Bullying Prevention Act, as stated above, was first adopted in 2009 and amended twice, in 2016 and in 2018. The act defines bullying more specifically than its definition in common, every-day usage, because the statutory definition includes the reference to “a continuous pattern of intentional behavior,” paired with one of five possible resulting effects (placing another student in reasonable fear of harm; substantially interfering with education; substantially disrupting the operation of the school; creating a hostile environment; or, being severe, persistent, or pervasive enough to create an intimidating, threatening, or abusive educational environment for another student). This narrow definition may provide a barrier against monetary awards under Title IX, which requires a showing of the very high standard of “deliberate indifference” by school officials regarding student-on-student harassment. However, this is not the only duty the act places on school personnel. Elsewhere, the act prohibits a list of behaviors, including bullying. Section § 16-28B-4(a) recites: “No student shall engage in or be subjected to bullying, intimidation, violence, or threats of violence on or off of school property, on a school bus, or at any schoolsponsored function by any other student in his or her school system.” The next provision recites: “No person shall engage in reprisal, retaliation, or false accusation against a victim, witness, or other person who has reliable information about an act of bullying, violence, or threat of violence.” (Section § 16-28B-4(b). These prohibited behaviors are dealt with through the conduct code, as they were by the elementary school in the recent 11th Circuit case.

Section § 16-28B-2 of the anti-bullying law asserts that the Legislature intended that a filing of a complaint of bullying should be “in writing and submitted by the affected student, or the parent or guardian of the affected student, and not by an education employee on behalf of an affected student or his or her parent or guardian.” However, a provision describing a model policy prohibiting bullying, violence, and threats of violence requires “a clearly defined procedure for students to use in reporting bullying, including, but not limited to (emphasis added), written reports on local board approved complaint forms and written reports of instances of bullying, intimidation, violence and threats of violence based on the personal characteristics of a student.” (Section § 16-28B-5(11)). Therefore, the “but not limited to” language indicates that written reports are not the only means of reporting bullying, intimidation, violence and threats of violence. Clearly, the Legislature did not intend for the duty of school personnel with respect to bullied students to begin with a written report on the school district’s form. Section §16-28B-6 specifies other duties for school personnel, including: promoting a school environment free of harassment, intimidation, violence, and threats of violence; develop evidence-based practices to prevent the negative behaviors; incorporate civility, citizenship, and character education into the curriculum; and, report to the local board and other authorities. The Legislature seems to be asking school leaders to lead their schools to develop cultures of safety and security for all students, regardless of the personal characteristics of students that make the students a target for other students. Section § 16-28B-4(d) requires, at the beginning of each school year, each school to programmatically address the issue of bullying and school violence with faculty and students. Section § 16-28B-8(13) requires annual training for all certified school employees in suicide awareness and prevention. Changing culture is hard work, centered on repeated expressions of what we value. One of the first lessons in basic educational leadership is that safety and security is foundational for everything else we do. Checking the boxes annually on “addressing bullying and school violence” or on “suicide awareness and prevention” does not change a culture.

Section § 16-28B-5(13) requires the model policy “to include a procedure for the development of a nonexhaustive list of specific personal characteristics of a student which may often lead to bullying. Based upon experience, a local board of education may add to, but not remove, characteristics from the list. The additional characteristics or perceived characteristics that cause bullying shall be identified by the local board on a case-by-case basis and added to the local board policy.” This provision can be read as a requirement, minimally, that school leaders identify, after-the-fact, those students who are more likely to be bullied or harassed. From a cultural leadership perspective, however, it is likely that what the Legislature is seeking is a school environment in which all students, regardless of their personal characteristics, are accepted, valued, and can expect to be educated in a school environment in which they can all feel safe and secure. In our school visits around the State, we have witnessed leadership teams—in public, private, parochial, and charter schools—in which a culture of acceptance, being valued, and feeling safe and secure is central and primary in everything else that goes in that school. For all of us, that is our primary duty.