Byline: RUSS BANHAM
As a boy, Eric Seaborg was shy, introverted and had bright red hair.
These traits, and particularly the red hair, brought taunts from other schoolchildren that sting to this day.
"I learned that the way to avoid being made fun of was to blend in," said Mr. Seaborg, now an expert on bullying as the senior risk management consultant at United Educators Insurance, a Chevy Chase, Md.-based risk retention group providing liability insurance for educational institutions.
Bullying and its electronic cousin, cyber bullying, have emerged as major areas of liability for educational institutions.
Many bullying lawsuits allege "deliberate indifference" as the factor in a school's liability. The legal standard, laid down in 1999 by the U.S. Supreme Court in Aurelia Davis et al. vs. Monroe County Board of Education et al., holds that a school is liable for damages if it fails to respond to known acts of harassment by one student against another student--creating an environment in which the victim is denied equal access to an education.
In effect, a school can be held liable if it is informed about the harassment and recklessly disregards the alleged perpetrator's acts.
The problem with the legal standard for many educational institutions is separating bullying from protected free speech. Additionally, some cases have been filed in which a school responded to the harassment, but did not go far enough to curtail the bullying in the view of the plaintiff.
Mr. Seaborg cited another crack in the system: "There are instances where a student reported the abuse to a lunchroom monitor or a janitor, but not to a teacher or administrator. Does this constitute a viable report of the incident for liability purposes?"
As U.S. courts handle suits that allege cyber bullying, educational institutions are emphasizing loss prevention via student and parent training, policies and incident reporting procedures while also taking punitive responses that range from talks with parents to expulsion of student bullies.
Student ambassadors
But Lee Gaby, executive director of Public School Risk Institute, an Athens, Ga.-based public school risk management organization, said more schools need to invest in comprehensive programs in which bystanders to a bullying incident are empowered to take action against the perpetrators.
"If someone witnesses a bully in action, the key is to not encourage the event by laughing or egging on the perpetrator, but to intervene verbally in a nonthreatening manner," Mr. Gaby said. "You train students who might otherwise be hesitant to act into goodwill ambassadors."
Despite these tactics, school liability for bullying is expected to increase in coming years, largely because of the media attention on several troubling incidents. Among them was the suicide last year of a gay Rutgers University student, whose encounter with another male was secretly videotaped by a roommate and posted on the Internet. Two students have been accused of invasion of privacy and bias intimidation, and Tyler Clementi's parents have sued Rutgers for failing to implement or enforce school policies aimed at preventing cyber bullying on campus.
Reducing in-person and electronic bullying at schools requires identifying and assessing the organization's exposure to loss, instituting measures to reduce the risks, and buying liability insurance with appropriate terms, conditions and limits to absorb related exposures.
Clients of Chicago-based broker Aon Corp. have their bullying risks plotted on a matrix to assess the breadth of their exposure.
"On the horizontal axis, we list the various types of potential torts like slander, defamation and invasion of privacy; and on the vertical, we list the various insurance policies, such as general liability, employment practices liability and educators legal liability that the institution has to address these exposures," said Kevin Kalinich, national managing director of cyber liability in Aon's Chicago office. "Quite often, we find that the policies fail to adequately address potential cyber liability exposures brought about through the use of social media like Twitter, YouTube and Facebook."
He said some general liability policies explicitly exclude electronic communications as a covered liability, often unbeknownst to the educational institution. Others have insufficient limits, a concern given the rise in cyber bullying and cyber stalking incidents.
Balancing act
"Policing electronic communications is problematical," said Mr. Kalinich. "On the one hand, you don't want to permit cyber bullying, but on the other you don't want to suppress someone's free speech rights. While a company can control and monitor what employees say and do online, an educational institution seeks to facilitate open, free exchange of ideas. Managing risk in this environment is intricate."
Jean Demchak, global education leader at New York-based Marsh Inc., also noted the dotted line between free speech and abusive behavior, saying it is the difference between being the class clown and being the cruel class clown.
"While you don't want to curb someone's imagination, I see no gray areas when it comes to a normal student code of conduct," Ms. Demchak said. "If a school has established policies that identify bullying, these policies are violated, appropriate administrators are informed, and the school takes the prescribed actions to stop the bullying, the school should be protected."
With regard to cyber bullying, Ms. Demchak said legal precedents are beginning to be established that will indicate if schools should have separate policies addressing cyber bullying vs. traditional physical bullying risks.
Nonetheless, Aon's Mr. Kalinich said he advises schools to create a social media policy that articulates the types of behaviors that are not permitted online and the actions that the institution will take if these rules are violated.
Similar policies are recommended for high schools and even grade schools.
"You want to establish a curriculum for bullying prevention," Mr. Gaby said. "It starts with written rules and policies for a nonviolent school setting, but should further include training of students regarding what bullying is, how to know when it is occurring and what to do if it is witnessed."
With respect to the latter, he reaffirmed that encouraging bystanders to a bullying incident to come forward and talk to perpetrators can temper the situation. "Bystanders often do nothing but observe, yet teachers can educate students about the statements they can make in these instances to influence the perpetrator to curtail the abusive behavior," Mr. Gaby said.
Mr. Seaborg said many schools insured by United Educators confront bullying risks by inviting parents, community members and law enforcement to join teachers and administrators in bullying prevention seminars. He further advocates that schools adopt a zero-tolerance policy for offenses with clear-cut, strict punishment for violators.
"It's advisable to point out cases in which bullied students that cannot take the abuse anymore react violently to the perpetrators," he said. "The behavior can cut both ways."
"Above all, you want to make clear to students that everyone is different, and these differences are not to be maligned," Mr. Seaborg said.
Even children with red hair.
Copyright 2011 Crain Communications Inc. All Rights Reserved.
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