An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

a. Cyberbullying Cyberbullying is now the more dominant form of bullying. It typically takes place off-campus, during off-hours and on personal devices and social media. Although high school students in private schools have a limited right to free speech, the School may discipline them for off- campus speech depending on the type of speech and its effects on the School community. Courts analyzing this issue in the public school context have looked to whether the speech materially and substantially disrupts the work and discipline of the school environment. For private high school students, some cyberbullying may qualify as protected speech under the California Education Code. 940 Schools must therefore take a cautious approach when disciplining high school students for unpopular or seemingly improper speech. Schools should make clear in their anti-harassment and discrimination and bullying policies that language that violates the policy will not be tolerated and may subject the student to discipline. b. Bullying vs. Harassment Bullying and discriminatory harassment are distinct, yet often interconnected concepts. Bullying may rise to the level of discriminatory harassment if the bullying conduct is based on the victim’s membership in a protected class, i.e. race, ethnicity, national origin, sex or disability. A school may be liable to a victim for discriminatory harassment for creating a hostile environment if the harassment is sufficiently severe, pervasive or persistent as to interfere with or limit a student’s ability to participate in or benefit from the school’s services, activities or opportunities; and the school official knew or should have known of the harassment and responded with indifference. 941 Because bullying in schools often touches upon a victim’s membership in a protected class, it is important for school administrators to take immediate and appropriate action to investigate and, if harassment has occurred, take prompt and immediate steps to end the harassment and prevent it from reoccurring. LCW Practice Advisor

While not required of private schools, adopting an anti- bullying policy is highly recommended. The California Department of Education has developed a sample anti-bullying policy for public schools which can be modified for private schools. It is available at: http://www.cde.ca.gov/ls/ss/se/samplepolicy.asp.

Section 8 R ETALIATION All of the applicable anti-discrimination laws contain provisions that protect students, applicants, and employees who report or oppose discrimination or harassment, including those who participate in the investigation process. To protect against claims of retaliation, schools should take a pro-active and preventative approach that lets employees know the school will not tolerate retaliation and encourages employees to report perceived unlawful activity. By doing so, schools gain the opportunity to rectify problems before they turn into litigation.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 229