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By Katie Pickle

Bullying is an age-old story—big kid pushes little kid around, steals his lunch money, or plays childish pranks on him. Unfortunately, in reality, incidents of school bullying in Alabama and around the country tell a much more sinister story. Children are often seriously harassed, severely physically harmed, and emotionally distressed, sometimes to the point of attempting suicide. Bullying is an extremely concerning issue, especially when it might seem that school officials are not doing everything they can to prevent it.

Take the story of Drew Breton. Breton, a 13-year old student at Semmes Middle School in Mobile County, was harassed and beaten in an incident captured on video in November 2016. What is most troubling about Breton’s story is the reaction of the school to the harassment of its student. In a statement, a representative for the school said that Breton was fighting back and defending himself. The video, however, shows otherwise—Breton walks away and takes no retaliatory action while he is attacked. Additionally worrisome is the complete lack of supervision while the bullying occurred. An investigation by the school did take place, but the harm to Breton had already been done. Breton’s mother did not want to press charges, but she did feel that more action should be taken, and that simply sending the student home who beat Breton was not enough.

Breton’s story poses questions about what the responsibilities of a school are or should be when a bullying incident takes place. It’s important to know what the law is, so that if your child is bullied, you know when you can take legal action.

In Alabama, bullying is covered under the Student Harassment Prevention Act. In general, the Act states that there shall be no harassment, violence, or threats of violence on school property. Any parent of guardian may file a complaint with a designated school official, and the school must have plans in place to encourage students to report and address harassment.

The Act also outlines more specific duties of schools with regard to bullying. Schools must develop and implement practices to promote school environments free of harassment. School officials must try to prevent harassment when it occurs, and report statistics of harassment to the school board. Additionally, schools must try to make bullying awareness and prevention part of their curriculum in some way.

Though the state code sets forth these guidelines, it is up to individual school districts to implement their own policies. The state provides a model policy to try to help local education agencies formulate their own. The model policy suggests a definition of harassment, lays out a procedure for filing a complaint, and gives the principal full discretion in deciding whether an incident is a violation of the policy. The principal is in charge of investigating the complaint.

Obviously, the model policy is just a suggestion, and policies on bullying differ in school districts around Alabama. Another informative source on bullying policy is Alabama case law, in which judges interpret the broader state policies on harassment. One important takeaway from the case law is that school officials can sometimes have immunity from prosecution, since they are agents of the state. In some cases, where the facts suggest that a teacher or other school administrator was neglecting their duties and failing to supervise students, Alabama courts have held that these school officials are immune because they acted with discretion. Judges distinguish between discretionary action and ministerial action. When school officials are performing a ministerial action, that is, one that is clearly written out as part of school policy, then they do not have immunity. However, when school officials are performing a discretionary action, one that is beyond their specific authority, then they are immune. It is well established in the case law that supervision and education of students are discretionary actions; even if a teacher has failed to supervise their students, they may not be held accountable. Therefore, it is imperative to know the policy of your child’s school district, to know whether you may take action against a teacher, a principal, etc.

If your child is bullied, you have a few possible legal options. You can sue the student(s) that harassed your child for assault, battery, or another tort offense. Depending on the school’s harassment policy, you may be able to sue the school district, or one or more school officials. The law can be confusing, but the bottom line is that schools should do all they reasonably can to stop or prevent bullying they know or should know is occurring. If they have not taken action, then the school may be legally held responsible. Because the law is very specific as to what actions school officials should be taking (the ministerial vs. discretionary distinction), it’s important to gather the facts and know exactly what happened to your child. You should look at the law that governs your school district and keep detailed records of everything related to the incident. The first step should be filing a complaint with the school, but if this does not pan out, you should seek legal help from an attorney who can apply the law to the facts and get your child justice.

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About the Author: This article was written by Katie Pickle. Katie is a law clerk at the Reid Law Firm and a 1L student at Emory Law School. She may be reached at Katharine.ReidLawFirm@gmail.com

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