her physical or mental health ;
• Causing a reasonable pupil to experience substantial interference with his or her academic performance ; or
• Causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services , activities or privileges provided by a school .”
This definition now clarifies the term bullying for disciplinary purposes , but still leaves many questions unanswered because of the unending variety of situations that could give rise to a bullying claim . Many times , student misconduct requires counseling or minor discipline even if it does not qualify for discipline under Section 49800 ( r ) of the Education Code .
Guidelines for investigation
A school district is obligated to investigate allegations of bullying upon receipt of a bullying complaint or when a school district learns of a bullying incident , and Section 49800 ( r ) provides a minimum standard for determining whether bullying has occurred for disciplinary purposes .
In reality , however , local school districts still need to develop and universally implement practical standards for investigating bullying claims . An investigator will need to determine whether alleged misconduct is expellable bullying , significantly poor behavior or just bad manners .
“ I know it when I see it ” is a phrase often used as a rule of thumb when evaluating the “ obscenity ” of free speech under the First Amendment . Without clearer standards set at the local level , this may be the rule of thumb used by schools to evaluate bullying complaints , and it will open up administrative decisions to greater scrutiny .
Bullying is also addressed in the Education Code through the Safe Place to Learn Act ( SPLA ), which requires each school district to adopt policies to prohibit school bullying when it is based on protected classifications , and to implement procedures for filing and investigating complaints of bullying ( EC 234-234.5 ).
The SPLA does not contain its own definition of bullying , but both the California Department of Education and United States
Department of Education have published guidance on how bullying might be defined under applicable discrimination laws .
The CDE has explained that : “ School staff must be aware of children ’ s taunts that occur from time to time and acknowledge injured feelings and issues in dispute . Bullying becomes a concern when hurtful or aggressive behavior toward an individual or a group appears to be unprovoked , intentional and ( usually ) repeated ” (“ Bullying at School ,” 2003 ).
Characteristics of bullying
The CDE has identified some characteristics of bullying , and has noted one researcher ’ s determination that a bullying act consists of the following elements : 1 ) a desire to hurt ; 2 ) a hurtful action ; 3 ) a power imbalance ; 4 ) repetition of hurtful actions ( typically ); 5 ) an unjust use of power ; 6 ) evident enjoyment by the aggressor ; and 7 ) a sense by the victim of being oppressed .
In its most recent FAQs on bullying , the CDE defined bullying as : “ Exposing a person to abusive actions repeatedly over time .” Notably , the CDE ’ s guidance does not refer to or rely upon the definition of bullying that is used for purposes of student discipline .
The U . S . DOE has issued similar , but not identical , guidance when compared to the CDE ’ s publications . While there is no federal statutory definition , the DOE has described bullying as “ unwanted , aggressive behavior among school-aged children that involves a real or perceived power imbalance .
In its most recent FAQs on bullying , the CDE defined bullying as : ‘ Exposing a person
The behavior is repeated , or has the potential to be repeated , over time .”
For both the U . S . DOE and CDE , bullying consists of behavior that : 1 ) is aggressive ; 2 ) includes an imbalance of power ; and 3 ) includes repetition , depending upon the severity of behavior . For purposes of defining bullying under the SPLA , school board policies , including the California School Boards Association model policy , incorporate some variation of the elements used by the CDE and DOE to describe an act of bullying .
Standards and processes
to abusive actions repeatedly over time .’
There are subtle but important distinctions to consider when discussing bullying as a basis for student discipline , under the SPLA or under a general student conduct code . Briefly , districts should remember that bullying under the SPLA requires an act motivated by protected characteristic , such as race , sex , gender identity or disability , while bullying under student discipline standards does not .
And while an investigation of bullying under the SPLA is subject to the district ’ s uniform complaint procedure ( UCP ) with a right to appeal to the CDE , a finding of bullying for student discipline purposes does not follow the UCP appeal process unless it also involves a protected characteristic .
Districts should also be mindful of the differences in using “ subjective ” criteria vs . “ objective ” criteria when evaluating a bullying claim . For discipline purposes , Section
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