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  Overview Awareness Intervention/Complaint Mgmt. Investigation Resources

CoverSchool Bullying: Tools for Avoiding Harm and Liability
By Mary Jo McGrath, Attorney at Law
With Contributions from Maureen A. Charles

Corwin Publishers 1st Edition – August 2006




Comprehensive Table of Contents



1. What Bullying Is, and What it Is Not Spotting the Bully

How Bullies Act

Intent to Harm

An Imbalance of Power

The Perpetrator Enjoys Bullying

Repeated, Systematic Behavior

Bullying Hurts

Three Types of Bullying

Piercing the Myths About Bullies and Bullying

Myth #1: Our School Doesn’t Have Bullies

Myth #2: Other Safety Issues are a Bigger Priority for Kids

Myth #3: Schools Should Not Encourage Complaints

Myth #4: Teachers See Everything and Respond When Bullying Takes Place

Myth #5: It’s the Outcasts Who Bully Others

Myth #6: Bullies Only Appear Tough, But They Are All Actually Anxious and Insecure

Myth #7: The “Class Bully” Is Easy to Identify

Myth #8: It Is Impossible to Catch the Early Warning Signs

Myth #9: There Is No Correlation Between Bullying and Cases of Extreme Violence

Myth #10: Bullying Is Not a Legal Issue – It’s a Character Issue

2. Through the Eyes of the Victim The Impact of Bullying on Victims

Impacted for Life

The Effects of Chronic Trauma

Post Traumatic Stress

Blaming the Victim

Signs and Symptoms That May Indicate a Child Is Being Bullied

Six Powerful Practices for Detecting Bullying and Harassment in Schools

Safe, Responsive Adults Are the Key

Being a Safe Adult

Being a Responsive Adult

Getting Everyone Involved

The Nature and Scope of Anti-Bullying Interventions

But Is It Legally Fit?

Legal Avenues for Effecting Change

3. TechnoBullying and Social Manipulation Mean Girls

What Does Relational Bullying Look Like?

What’s the Harm?

The Marvels of Modern Technology

Three Way Calling Attacks

Instant Messaging


No Privacy on the Internet

Online Impersonation

What Can Schools Do?

Why Kids Don’t Report

The Code

Changing the Adult Response

The Complex Role of the Bystander

Group Dynamics

The Role of the Defender

Shifting the Dynamic: Training Bystanders

“I’m Afraid to Walk in That Corridor”

Is Your Discipline Code Adequate?

What Does Retaliation Look Like?

Handling Graffiti


4. Bullying Through a Legal Lens

In Loco Parentis

Three Bodies of Law

What Is a Civil Action?

What Is Criminal Law?

What Is Administrative Law?

What Is Liability?

What Is Governmental Immunity?

What Is Negligence?

Where Does Negligence Fit Under the Law?

What Is a Duty of Care?

Will the Standard Practice Used in a Profession Protect Against Negligence Charges?

Under What Conditions May an Individual Be Found Individually Liable?

What Qualifies As “Notice”?

How Does a School Receive Notice?

What Are Deliberate Indifference and Reckless Disregard?

What Is Discrimination?

What Is the Difference Between Bias, Prejudice and Discrimination?

What About Students’ First Amendment Rights?

The First Amendment and Retaliation: A Case in Point

Responsibility for the Behavior of Third Parties

Who Is Considered a Third Party?

Public School Students in Employment Settings

Enactment of State Law

5. When Bullying Is Legally Actionable

The Criterion: Point by Point

Point 1: Is a Protected Classification Involved or Is There Intent to Harm?

Intent Is the Key Factor

Point 2: Is the Behavior Unwelcome or Unwanted?

Point 3: Is the Behavior Severe or Persistent or Pervasive?

Point 4: Does the Behavior Substantially Interfere With Getting an Education?

Point 5: Does the Behavior Meet Both Subjective and Objective Tests Related to its Level of Interference With Student Education?

Quid Pro Quo Sexual Harassment: An Exception to the Five Point Criterion

In Review

Follow Your Policy

Bullying Policy Highlights

A Cautionary Note: The Importance of Being Strategic

Your Duty to Protect: The Courts Are Speaking

Established Guidelines for Protecting Students

Four Responsibilities Under the Duty to Protect

Covering All the Bases


6. Daily Practices to Conquer Bullying

And the Complaints Keep Coming…

Power Tools That Build a Positive School Culture

A Legally Sound Response

Bullying: Three Levels of Response

Level I Response: Training the Front Line

Level I Response: Documentation

Level II Response

Level III Response

The McGrath SUCCEED System

The McGrath FICA Standard: The Basic Tool

How to Evaluate Facts and Make Decisions

The McGrath FICA Standard

The FACTS: What Happened

IMPACT: The Harm of What Happened

When Facts and Impact Do Not Correlate

CONTEXT: The Other Factors Surrounding the Situation

Context: The Supreme Court Speaks

Miss Jones Interviews Becky

ACTION: Taking the Logical Next Step

Spiraling Forward

Back to Mr. Pogue

McGrath FICA in Review

Communicating With the McGrath FICA Standard

Implementing the FICA Chat Infrastructure


7. Powered By Principles

The Be and the Do of Conquering Bullying

Why Trust, Respect, Understanding and Growth?

Facts With Trust

Impact With Respect

Context With Understanding

Action With Growth

Four Lenses: Structure, Quality, Tone and Balance

Structure Counts

Quality: Be Specific and Factual

Tone: The Relationship Factor

Balance: Working the FICA Formula With Integrity

It’s All About Relationship

The McGrath SUCCEED Levels of Mastery

A Transformational Approach

The Heart of the Matter

What It Takes To Be a Partner

Turning the Mirror Inward

The McGrath SUCCEED System as a Guide for Self-Reflection

The Internal “Imposter”

The Personal Awareness Paradox

The Questing Person

Being a Partner: Shared Vision

The Sociopath Next Door: A Notable Exception

No Matter How Mean the Streets


Lead With Your Heart


8. A Legally Sound To Do List

The Content of Bullying Through the Legal Lens

Initial Intake of Complaints: Preliminary Steps

The Role of the Complaint Manager

Processing Incident Reports From Third Parties

If the Complainant Cannot Read and/or Write English Proficiently

Complaint Intake With Very Young Students

Informing the Parents

Should You Audiotape the Child’s Answers?

Completing the Conversation With the Complainant

Don’t Be Afraid of Documentation

Deciding Who Investigates

Handing a Complaint Off to an Investigator

First Things First: Eight Preliminary Considerations

Informal Versus Formal Resolution

A Working Definition of “Informal”

“Talking It Out”


Informal Does Not Mean Unwritten

What Is an Inquiry?

An Example of a Level II Matter

When Is Informal Resolution Clearly Inappropriate?

Innocent Until Proven Guilty

But I Know the Kid Is Guilty

9. Creating and Following a Game Plan: Level III Investigation

Know the “Players”

The Complaint Manager’s Role

The Response Team’s Role

Traits of an Investigator

The Title IX Coordinator

The Role of Counsel

Include All Players in the Game Plan

The Five Phases of an Investigation

Phase One: Gather the Facts

Phase Two: Check for Records of Concern

Phase Three: Evaluate the Testimony and Evidence

Phase Four: Write the Report

Phase Five: Follow-Up Actions By School Officials

Corroborative Evidence

Hearsay Evidence

Creating a McGrath Case Organizer to Guide the Investigation From Start to Finish

Organize the Case File

The McGrath Case Organizer

10. Conclusion


Resource A: Forms

McGrath Incident Report

McGrath Investigation Checklist

McGrath Template III Report Form

Resource B: Laws and Policies

Law Case Digest

Bullying Policy

Sample State Law

Resource C: Glossary

Resource D: Useful Websites




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