Bullying Investigations Pt 2

Bullying Investigations: Part 2 of a 3 part Newsletter Series

Prove the Impact – Not the Intent
By Mary Jo McGrath, Attorney at Law, Educational Consultant

I didn’t mean to hurt him!
That’s how we treat all our friends.

At the start of your investigation into a bullying situation, how many times have you heard it said: “I didn’t mean to hurt him!” Your district’s bullying and harassment policy may be paving the way for this standard “defense” to stick.

Intent to Harm

Too many bullying policies and regulations focus on the ” intent ” to harm, intimidate, demean, etc. or require the action by the alleged perpetrator(s) be “purposeful” or “deliberate.” By requiring any form of intent in relation to the hurt caused, the focus is then on the perpetrator’s state of mind. Intent to harm is defined as ” The actor desires to cause the consequences of his act or he believes the consequences are substantially certain to result from it.” Forsberg v. Pefanis, 2009 U.S. Dist. LEXIS 114144 (N.D. Ga. Dec. 8, 2009)

Proving “Intent to Harm” places a very high burden on the school district. It is difficult to prove someone’s state of mind and it opens the door to the “I didn’t know the gun was loaded” type defense. Further, it is not legally necessary, unless the policy language you draft hems you into its use. In fact, the U.S. Department of Education’s recent Dear Colleague letter states: “Harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.”

Through The Victim’s Lens

In defining bullying, the focus should be on the impact the behavior is having on the target. This direction has been well developed in illegal harassment law and successfully narrows the field of harassment so that it does not include every type of incivility.

Better policy language will include the McGrath 5-point Criteria, which I have assembled based on case and statutory law. Focusing on the actions taken, it determines those actions are:

  1. Not accidental and are the cause of harm
  2. Unwelcomed
  3. Severe, persistent or pervasive; and
  4. Have resulted in an unreasonable interference with the opportunity to receive an education.
  5. That interference is unreasonable as determined by the subjective reaction of the victim as well as by the reaction of a “reasonable person similarly situated” to the victim.

Notice that none of the legal criteria deal with what the bully’s intent may have been. It all focuses on the target and the impact on him or her.

I suggest that the first step in improving your district’s response to bullying is a thorough review of your bullying policy, regulations and training programs. It may be appropriate to revise the language, thereby eliminating the “intent’ defense and allowing investigators to focus on actions and results, rather than state of mind. The link below will take you to examples of problematic and suggested policy language.

Next Edition:

Site administrators are typically the investigators of most bullying complaints. However, they often do not receive the specialized training needed in initial response and investigative techniques related to bullying and harassment. They are told what to do, but not how to do it.

In the next edition of this series, I will address how bullying and illegal harassment investigations vary from the handling of standard student discipline matters. I will provide the McGrath Investigation Pattern to determine the facts around what happened and the appropriate next steps. Look for information about:

Quality questioning techniques and report writing
Conducting effective interviews of the complainant, alleged perpetrator and witnesses
The benefits of a school culture “environmental scan”
Link: Examples of Problematic and Suggested Policy Language

For additional information on the McGrath Anti-Bullying and Harassment Curriculum contact us at 800 733-1638 or e-mail us at info@mcgrathinc.com.

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