Legal responsibilities in bullying from Australian and USA perspectives

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1 Legal responsibilities in bullying from Australian and USA perspectives Ralph D. Mawdsley, J.D., Ph.D. Cleveland State University Ohio USA J. Joy Cumming, Ph.D., J.D. Griffith University Queensland Australia Introduction This paper explores issues of bullying and legal and policy intervention in two nations: the USA and Australia. The policy and legal contexts of both countries are explored to examine how effective interventions, from a legal or policy direction, could be brought about to affect the incidence of school bullying in both countries. Additionally, the focus is on the rights of the individual who is the victim of bullying. Nearly two decades of educational research has demonstrated repeatedly that one of the most damaging and pervasive problems in our schools in bullying. Not only does bullying leave its victims with serious and often lifelong problems, i but bullies are more likely than their peers to commit felonies in their later lives. ii Although school officials have access to proven strategies to reduce the prevalence of bullying, they have failed to take advantage of those strategies. In most schools, bullying continues unabated. iii Bullying is a significant problem in American schools with as many as fifteen percent of all students being victims or perpetrators iv and one survey indicating that the percentage may be as high as twenty percent. v Although bullying is most prevalent in middle schools, it reaches into elementary and high schools as well. vi In the later section we show that similar statistics on bullying have been identified in schools in Australia. In the USA, when bullying issues reach the courts, available legal theories of common law tort (negligent supervision), constitutional tort (Fourteenth Amendment substantive due process ), federal statute (Title IX gender-based harassment), and even state anti - bullying statutes have been woefully inadequate in remedying the problems. What is therefore needed in this context is a new legal approach that realigns legal incentives and penalties so that schools are rewarded for implementing proven strategies for preventing bullying and penalized for refusing to do so. In Australia, federal laws do not come into play for bullying and only the legal theories of common law tort and statute law at the state levels are in play. However, as the discussion shows later, educational policies have been developed that are intended to remedy bullying practices in schools and reeducate school bullies. We examine later the effect of these policies in practice, and for the bullying victim. A Functional Definition of Bullying Bullying as defined in educational research is a persistent patter of intimidation and harassment directed at a particular student in order to humiliate, frighten, or isolate the Mawdsley Cumming ANZELA

2 child. vii It is sustained, cruel, and inescapable torment perpetrated by a child s peers. viii The ineffectiveness of the victim in stopping this treatment reflects the power imbalance in the school s authority system that rewards a bully by discounting the nature and/or seriousness of reported acts of bullying, in effect empowering the bully to further retaliate. ix Both boys and girls engage in bullying. Boys bullying has been characterized as more often involving physical intimidation while girls bullying takes on a psychological character of social alienation, intimidation, malicious gossip, note writing, and peer manipulation. x Whether perpetrated by girls or boys, bullying has three consistent characteristics: (1) Repetitive negative actions targeted at a specific victim; (2) Direct confrontation caused by a perpetrated imbalance of power, and (3) Effective manipulation of emotional responses such as fear and inadequacy. xi Research reveals that those students who are the victims of bullying carry the pain and humiliation with them past their school years. Those students unable to assert themselves in the face of bullying and thus gain self confidence suffer a serious erosion of selfconfidence and self esteem that lasts into adulthood. xii Whatever their psychological and emotional health was prior to bullying, those unable to cope with bullying find an inability to concentrate and experience problems with flashbacks of being bullied, as well other physical difficulties. xiii Peers of victims tend to avoid them so as to stay clear of the bully s attention with the result that the victim finds him/herself increasingly isolated and frequently begins to avoid school. xiv While one should caution against overgeneralization, some of those who have been victims of bullying have looked for protection in weapons, fighting, tough images, gang violence, and retaliation. xv Bullying not only has a devastating effect on the lives of individual students but can have deteriorating impact on the social climate of the school. While many students believe that they should aid a victim, most remain passive in the face of another s victimization, not wanting to engage the bully and become his next target. xvi In time, research has revealed that some bystanders begin to approve of the bullying by blaming the victim, eventually participating themselves in the bullying. xvii Although students would benefit from a teacher s role model in addressing bullying in schools, research reveals that teachers not only underestimate the prevalence of bullying, xviii but fear that intervening will exacerbate the problem by encouraging betterhidden retaliation against the victim. xix This head-in-the-sand approach has a doubly disastrous effect on the victim: bullying continues to flourish on a bed of secrecy, hidden from those who could help ; xx and, student victims tend not to trust adults because they perceive little chance of real help xxi and find discussing bullying in such a climate a humiliating admission of their own weakness. xxii In the USA, some writers have cautioned against making the term, bullying, synonymous with harassment or discrimination, arguing that these latter terms have special protections under the American civil rights laws. In effect, the reasoning is that applying the term, bullying, to sexual or racial harassment may dilute the discourse of rights by minimizing or obscuring harassment in favor of a focus only upon individual motivation. That Mawdsley Cumming ANZELA

3 dilution may encourage educators to ignore institutional reforms that are contributing to such harassment and erode the protections that now exist under civil rights laws. xxiii While this differentiation has some merit, one cannot stray too far from the reality that the same school culture that is a breeding ground for racial or sexual harassment also fosters and protects bullying. The proper approach to bullying is neither to sweep traditional notions of harassment into a definition that focuses only on individual motivations nor to avoid directly addressing bullying as a serious and pervasive threat to children. The school community should explicitly counter both individually motivated bullying and culturally motivated harassment and discrimination. Bullying in the USA: The Weakness of Current US Federal Law State compulsory attendance laws require that students attend schools and yet federal law has failed to provide any serious incentive for these schools to change their approach towards bullying. Title IX, the federal law prohibiting gender-based harassment (including bullying), has provided little relief because it provides damages only when school officials have been deliberately indifferent to known patterns of harassment a difficult claim to prove. Claims under section 1983 have been likewise ineffective in compensating victims or holding school officials accountable because of a variety of procedural barriers. The No Child Left Behind Act (NCLB) addresses violence in schools but offers little held to the child subjected to bullying, except to permit a child, where the bullying escalates into assault, to transfer to another schools. Title IX as interpreted by the U.S. Supreme Court in Davis v. Monroe County Board of Education, xxiv offers little incentive for schools to respond proactively to gender-based bullying. The Davis standard has two components that work against effectively addressing gender harassment: school administrators have no duty to act until they know of the harassment; and no liability attaches once administrators know of the harassment unless the response demonstrates deliberate indifference. Davis dealt with a female fifth grade student, LaShonda, who from December, 1992 to May, 1993 was continually harassed verbally and physically in the classroom by a male classmate. Despite repeated complaints to school personnel, including her teacher and principal, the student had to wait three months before her teacher even permitted her to change desks to separate her from her tormentor. Eventually the harasser was charged with sexual battery but in the interim while waiting for school personnel to respond, LaShonda s grades began to suffer and she wrote a note threatening suicide. Like other standards of liability, the Davis standard focuses on the school s response to specific instances of known harassment rather than on the school s response to an overall climate that allows such behavior to flourish. Thus, while the Davis standard imposes a duty on school administrators to act when they know of gender-based harassment, the standard fails for two reasons to impose an affirmative duty to anticipate such behavior and take effective steps to prevent it. First, because the standard imposes no duty to act until school administrators have knowledge of harassment, such a standard flies in the face of empirical research that victims generally are unwilling to report such harassment to their parents or school personnel because of the stigma attached and the risk of reprisals. Second, the Davis standard imposes no liability unless the actions of administrators rises to the level of deliberate indifference, which means an administrator s clearly unreasonable in light of the known circumstances. xxv Mawdsley Cumming ANZELA

4 Title IX is a nondiscrimination statute that is activated only for recipients of federal financial assistance which, in the United States, means all public school districts, and many nonpublic schools. Because liability under Title IX can be imposed only on the recipients, only school districts and not individuals within the district can be sued under the statute. As a result, the culpable misconduct must consist of an official decision by the recipient not to remedy the violation. xxvi The disingenuous nature of Title IX s approach to liability is that it assumes that school authorities do not know of harassment in their schools until specific examples are brought to their attention. To require actual notice of harassment and deliberate indifference is to turn a blind eye toward the facts of harassment in modern schools. xxvii Ironically, even though setting a high standard for school liability, the Supreme Court in Davis acknowledged that schools retain substantial control over the harasser and that the maintenance of discipline in the school requires not only that students be restrained from assaulting one another, abusing drugs and alcohol, and committing other crimes, but also that students conform themselves to the standards of conduct prescribed by school authorities. xxviii The argument by the dissenting justices in Davis, that limited resources of our schools must be conserved for basic educational services and that some schools lack the resources even to deal with problems of violence and are already overwhelmed with disciplinary problems of all kinds xxix mirrors the false dichotomy in education. Basic educational services do not just include classroom instruction and extracurricular skills. Providing an atmosphere where students are emotionally and physically safe is just as much an educational service as what is taught in the classroom or on the rugby pitch. Section 1983 Claims for Deprivation of Federal Rights Section 1983 of the Civil Rights Act of 1964 provides a damages private cause of action for violations of any rights, privileges, or immunities secured by the Constitution and [federal] laws. xxx Thus, at least theoretically a student experiencing harassment could sue under section 1983 for a violation of Title IX under due process or equal protection approaches. The difficulty is that, within each approach, courts have required conformity to judicially constructed theories that impose restrictive pleading and proof requirements. Under the due process approach, courts have acknowledged cognizable theories for substantive due process violations under the Fourteenth Amendment which provides that government cannot deprive a person of life, liberty, or property without due process of law. Students injured as a result of harassment in public schools have asserted constitutional torts under the liberty clause, alleging breaches of their rights to bodily integrity xxxi and personal security. xxxii However, the problem under the liberty clause as for any substantive right is crafting a constitutional duty on the part of school authorities to prevent injuries to students, in this case harassment. Plaintiffs have attempted to construct duties by school authorities to act based on two theories: state compulsory attendance laws that place students in custodial relationship with the school; and, a state-created danger theory that school authorities have created or increased the danger to students. Courts consistently have rejected the first theory and have limited the second to conscience-shocking actions by school authorities. The custodial or special relationship requires that the school have so limited the victim s freedom to seek help that he/she could not have protected themselves without Mawdsley Cumming ANZELA

5 intervention by the school. While not specifically on school bullying, in the leading US case on custodial relationship responsibilities, DeShaney v. Winnebago County Department of Social Services, xxxiii the Supreme Court concluded that Social Services could not be liable under section 1983 where it had returned a young child to his father despite repeated evidence that the father was abusing the child. After the father beat the child so badly that the child was brain-damaged and would be institutionalized the remainder of his life, xxxiv the Court found that Social Services could not be liable because the Due Process Clause does not require a government entity to intervene to prevent violence perpetrated by private actions, even though it knew of the danger. xxxv The Court determined that an affirmative duty to act would arise where: (1) a state takes a person into its custody and holds him there against his will; xxxvi and/or, [so] restrains an individual s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs e.g., food, clothing, medical care, and reasonable safety. xxxvii While plaintiffs in K-12 schools have argued that compulsory attendance laws are custodial in nature (and, perhaps students may perceive themselves as institutionalised), courts have not adopted this reasoning. Students are free to return home at the end of the school day, and can appeal for help to parents and law enforcement authorities. xxxviii Indeed, if peer harassment persists and school authority inaction continues, parents in all states have authority to change the venue of education to private schools, including home schools. The parent-choice factor seems critical since courts have recognized that state authorities have an affirmative duty to act where state agencies place children in foster homes. xxxix However, not all parents can afford to choose alternate educational sites for their children. If parents are not able to persuade school authorities or law enforcement of the harassing misconduct of other students, parents face truancy charges if their children refuse to return to school. The constitutional line drawn in DeShaney, as applied to schools, represents the difficult task that courts face in drawing lines of responsibility involving the actions of private actors. Such line-drawing is neither emotionally nor politically popular where taxpayers will most certainly expect a higher level of scrutiny of student misconduct than that required under DeShaney and the federal Constitution. However, the absence of a constitutional duty does not mean absence of penalties, since perpetrators are still accountable under state criminal and civil laws. The hard reality though is that criminal and civil penalties provide no assurance that the harasser will not be back in the same school and classrooms with the victim. Nonetheless, even considering this difficulty, to impose an affirmative duty to act involving misconduct of private actors, based solely on the physical presence of such actors in school buildings, runs the risk of extending liability to areas where schools would not want to accept liability, for example, afterschool meetings of student or community groups. To impose a constitutional duty to act is like the shot arrow impossible to recall. Citizens will find that public school facilities formally available to them will be closed because the federal Constitution imposes a duty to act that school authorities lack the time, energy, or capacity to satisfy. The state-created danger theory has fared little better in the courts than has the custodial relationship theory. Under this theory, for a court to find liability [t]he environment Mawdsley Cumming ANZELA

6 created by the state actors must be dangerous; they must know it is dangerous; and, to be liable they must have used their authority to create an opportunity that would not otherwise have existed for the third party s crime to occur. xl Federal courts in the US have refused to find liability under this theory unless school authorities action has increased or enhanced the danger to a student. In order to determine whether school authorities have a duty to act the Tenth Circuit Court of Appeals has formulated a six-part test: (1) whether plaintiff was a member of a limited and specifically definable group; (2) whether defendant s conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; (3) whether the risk to plaintiff was obvious or known; (4) whether defendant acted recklessly in conscious disregard of that risk; (5) whether the conduct, when viewed in total, shocks the conscience of federal judges; and (6) whether the charged state entity and state official created the danger or increased the danger in some way. xli The Third Circuit Court of Appeals has collapsed these six tests into four similar ones: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship, other than the special custodial relationship under DeShaney, between the state and the plaintiff; and, the state actors used their authority to create an opportunity that otherwise would not have existed for the third party s crime to occur. xlii As these tests suggest, more is required from school officials than an affirmative action that might have done something that makes injury at the hands of a third party more likely. xliii In the absence of evidence that the action or inaction of school authorities is conscience-shocking, court will not recognize liability. Thus far, courts have been reluctant to find conscience-shocking conduct by students, even when school personnel are involved. Representative of judicial attitudes towards finding school personnel not responsible for student bullying is Snelling v. Fall Mountain Regional School District. xliv In Snelling, a basketball player for four years, and his brother, were subjected to harassment that escalated from student comments characterised by the court as being said harshly and with hatred xlv to physical abuse that occurred in the presence of the coaches who did nothing. xlvi The coach joined in the bullying with verbal comments xlvii and one of the plaintiff-students, when he complained to the high school principal about an unpleasant nickname, was told that peers can be mean in high school, which is a part of growing up and to just accept [it] and move on. xlviii When another player retaliated for plaintiff s complaints to the assistant principal by repeatedly hitting plaintiff on the back of his head so that medical attention was required, the coach and athletic director standing twenty feet away did nothing. xlix Despite the inaction of the principal and coaches and despite the participation of the basketball coach in the bullying, the court refused to find the school personnel s conduct shocking: Taken in the broader context of the harassment the plaintiffs endured, [the coach s] remarks appear to be un professional, insensitive, and even cruel. The coach s apparent participation in the harassment may have emboldened others to continue or even increase their harassment of the plaintiffs. [The coach s] conduct, however, does not sink to the level of conscience-shocking behavior. l Other federal courts have reached similar results whether school authorities intervened to help or not. In Stevens v. Umsted, li the Seventh Circuit Court of Appeals determined that Mawdsley Cumming ANZELA

7 a boarding school superintendent s failure to intervene over a period of years to stop sexual assaults against a disabled resident, even though he was aware of the assaults, would not support a due process claim based on a theory of state-created danger. lii On the other hand, in Stevenson v. Martin County Board of Education, liii the Fourth Circuit Court of Appeals refused to find liability where a school had responded to beatings of a middle school student by suspending one attacker twice and two others once. Even though the beatings continued with renewed force when the attackers returned to school and the court referred to the beatings as frequent and brutal, the court opined that the school officials did not intentionally or recklessly [take] steps to contribute to the violence and therefore could not be held liable under a state-created danger theory. liv Except for the rare isolated exception, lv courts have usually concluded that any danger of peer-on-peer bullying and violence existing in the victim s school is not the fault of school officials, regardless whether officials response is inaction or participation in the bullying. In effect, the state has created a property interest in a free education and compelled students to participate in it, but then has no duty to protect students liberty interest in bodily integrity. Bullied students have been no more successful in presenting justiciable claims under equal protection. The Equal Protection Clause provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. lvi The only hope of stating a claim under equal protection is that school officials response to bullying constituted discrimination on the basis of membership in a definable class. The Equal Protection Clause does not guarantee that every individual will be treated alike; rather, [t]he gravamen of equal protection lies not in the fact of deprivation of a right but in the invidious classification of persons aggrieved by the state s action. lvii A plaintiff must prove that he/she received lower level of protection than persons outside his/her category and that the disparate treatment received was not merely negligently discriminatory, but rather was intentionally discriminatory or given with deliberate indifference to his rights because of his/her class status. lviii While emerging case law suggests an equal protection claim in some situations where bullying can be connected to a specific class, such as sexual orientation, most bullying victims will be hard-pressed to find a cognizable class. The problem with most plaintiffs who look for remedies in the federal Constitution is that the motivation behind most school authorities inaction is not the plaintiffs membership in an identifiable category, but inaction generally to bullying or their unwillingness or inability to recognize the seriousness of the plaintiff s plight. Ultimately, victims of bullying will find little help under constitutional theories of due process or equal protection. No Child Left Behind (NCLB) NCLB permits students in public school identified as persistently dangerous to transfer to a safe school with the school district. Thus far, this promise of deliverance for some students from dangerous settings has been illusory under this statute because each state controls the definition of what constitutes a persistently dangerous school. For the year 2004, only 26 of the nation s approximately 92,000 public schools earned that label, and all of those schools were in three states New Jersey, Pennsysvlvania, and South Dakota. lix Mawdsley Cumming ANZELA

8 This approach affords little help to the bullied student because it is based on broad categories of violence and not on the individual needs of victims. In addition, the statute provides the same remedy for the bully as for the victim and, thus, a victim that is able to escape his old school with its bitter memories of bullying may find that, if the bully follows him, he has simply changed bullying venue for another. While the new school may have a totally different approach to bullying and school climate, one has no reason to be optimistic. Merely transferring to a new school that is not persistently dangerous provides no protection at all for the bullying victim if bullying (and the attendant verbal and physical abuse) is not among the offenses the determine whether a school qualifies as persistently dangerous. Bullying and State Law in the USA At present, fifteen states have passed laws that require schools to develop anti-bullying policies. lx Most of the statutes begin with a definition of bullying that reaches fairly broadly and is consistent with the definitions found in anti-bullying literature. Washington state s definition is typical: Harassment, intimidation, or bullying means any intentional written verbal or physical act, including but not limited to one shown top be motivated by any characteristic in RCW 9A.080(3), or other distinguishing characteristics, when the intentional written, verbal or physical act: (a) Physically harms a student or damages the student s property; or (b) Has the effect of substantially interfering with a student s education; or (c) Is so severe, persistent, or pervasive that it creates an intimidating or threatening educational environment; or (d) Has the effect of substantially disrupting the orderly operation of the school. Nothing in this section requires the affected student to actually possess a characteristic that is a basis for the harassment, intimidation, or bullying. Not only do such state laws define bullying, but they also specify consequences, require that the policy be posted, and require that it be distributed to students and sent home to parents. In addition, the statutes generally require that school employees report suspected bullying to the principal and prohibit retaliation for reporting bullying. The Arkansas statute provides that: (a) The school board of directors in every school district shall adopt policies to prevent pupil harassment, also known as bullying. (b) The policies shall: (1) Clearly define conduct that constitutes bullying; (2) Prohibit bullying while on school property, at school-sponsored activities, and on school buses; (3) State the consequences for engaging in the prohibited conduct, which may vary depending on the age or grade of the student involved; (4) Require that a school employee who has witnessed or has reliable information that a pupil has been a victim of bullying as defined by the district shall report the incident to the principal; (5) Require that notice of what constitutes bullying, that bullying is prohibited, and the consequences of engaging in bullying be conspicuously posted in every classroom, cafeteria, restroom, gymnasium, auditorium, and school bus in the district; and (6) Mawdsley Cumming ANZELA

9 Require that copies of the notice of what constitutes bullying, that bullying is prohibited, and the consequences of engaging in bullying be provided to parents, students, school volunteers, and employees. Each policy shall require that a full copy of the policy be made available upon request. lxi Statutes vary as to other useful provisions. Some states required state departments of education to design model bullying policies for distribution to schools lxii while others require that schools report annually to the state the number of bullying incidents that have resulted in disciplinary action. lxiii Most statutes encourage or require training of school employees in how to identify and prevent bullying. lxiv Comparable to child abuse reporting statutes, the statutes include immunity for staff members who in good faith notify administrators of bullying incidents, lxv but at least one state also shields staff members from liability who fail to report. lxvi Whether these statutes will be effective depends on enforcement and, more importantly, on their adoption by the school culture. To the extent that school policies are adopted without the involvement of the entire community, including students, teachers, administrators, coaches, parents, and board members, lxvii nothing much will have changed. Without the time-consuming school-wide discussions that are the predicate to changing school climate, enforcement of a bullying policy will have to await the isolated complaint. Because most states require state boards of education to provide a model policy for schools, having the policy already created may serve as a disincentive for schools to engage in the discussions that might lead to cultural reform. The weakness of the state statutes is that they are based on the premise that bullying is easily discoverable and that all that needs to be done to resolve the problem is to encourage reporting and specify consequences. School Zero Tolerance Approaches Zero tolerance policies as adopted in school are strict liability approaches to a variety of kinds of student behaviors. The concept of zero tolerance in terms of schools and drugs owes its origin to the federal government s war on drugs in the 1980s that developed the mantra that all drug possession and distribution would result in criminal penalties. This zero tolerance approach was augmented by Congress passage in 1994 the Gun Free School Act. For schools that required, as a condition for receiving federal money, expulsion for bringing weapons on school grounds, although administrators were permitted to make exceptions on a case-by-case basis. Zero tolerance thus far has become uniformly applied to drugs and weapons, frequently with draconian results. lxviii Adopting policies punishing the possession and distribution or drugs is desirable but the entire approach becomes suspect when students have been expelled for giving a friend an aspirin or a cough drop. The risk of extending the zero tolerance approach to bullying is just as real. For example, one school in California has implemented a zero tolerance policy that targets teasing, taunting, or bullying for any reason. lxix Such approaches present worrisome substantive due process concerns because the policy lacks specificity as to what constitutes teasing, taunting, or bullying. Students should be entitled to know at the time they make statements whether they could reasonably fall within prohibited forms of speech and not wait for an administrator s after-the-fact interpretation. Indeed, one strains to construct a viable state interest that justifies teaching students that they can Mawdsley Cumming ANZELA

10 be punished for conduct even though they intended no harm and were unaware they were committing a violation of a school rule. lxx Zero tolerance policies, as the ultimate rejection of penal proportionality lxxi by focusing only on the result of the conduct at the exclusion of other factors, present to students the very worst of the balance between individual liberties and state interests. If the function of K-12 education is to prepare each generation for participation in democracy, the schools cannot achieve this purpose with policies that lack the basic fairness and rationality that should underlie all actions of the state. Subjecting students to such zero tolerance policies erodes the students respect for and understanding of fundamental legal principles that provide remedy for injustice and injury. Punishing students in lock-step fashion for violation of school rules does nothing to teach about rethinking the values and motivations that underlay unacceptable behaviors. Tort Liability Claims Although increasing numbers of students are suing school districts and their employees for negligent supervision, the success of such lawsuits must overcome a number of legal issues. The foremost obstacle to recovery is a state s immunity law. The amount of protection for school boards varies from complete protection to permitting liability only for certain kinds of actions, such as those that are ministerial or proprietary as opposed to discretionary. lxxii School teachers and administrators generally have a qualified immunity and are liable only when they engaged in actions that are reckless or grossly negligent. lxxiii Where providing supervision for students is considered by courts to be discretionary, administrators may avoid liability if they fail to assign adequate supervision lxxiv and teachers may likewise avoid liability if they fail to act upon reports of threats by one student of another, lxxv or even leave students unattended to participate in a meeting in another building. lxxvi Where, in order for teacher or administrator conduct to be gross negligence, it must be something less than the absence of slight diligence, or the want of even scant care, lxxvii the probability of a finding of liability is slight. Governmental immunity is justified as methods of protecting state treasuries and of freeing teachers from the fear of liability in undertaking the education of large numbers of students. Courts and legislatures have acted to insulate typically overburdened and undercompensated teachers from the second guessing of juries. lxxviii The weakness of immunity though is that it protects adults at the expense of students. Tort liability predicates responsibility only on breach of duties that are foreseeable. The legal fiction of in loco parentis that has shaped the reasonableness test in the past for teachers and administrators, assuring that students learn in a safe environment, is being replaced by a more common standard of conduct not involving willful or wanton misconduct. lxxix Thus, while courts still emphasize the necessity of schools reasonably protecting in their schools, they also emphasize that schools are not insurers of students safety. lxxx However, the duty to act has become an evolving concept. Some courts have found breach of duties where school officials failed to instruct relevant school employees about threats lxxxi or where an assault at school was preceded by another on campus two weeks earlier. lxxxii Such duties where third parties are involved are fairly limited though to specific threats and identified harm. Mawdsley Cumming ANZELA

11 Schools will be liable for negligent supervision only where the failure to perform a duty is the proximate cause of the injury. The actions of third parties almost always raise the issue of duty to supervise if the injury resulted from the third party s intervening acts. However, in Rupp v. Bryant, lxxxiii the Supreme Court of Florida found a student s injuries from an off-campus hazing event generated liability for the school where the school was aware of the hazing, had passed a rule prohibiting hazing, was aware that student organization conducting the hazing had a reputation for violating the rule, and the school sponsor absented himself from the hazing event knowing that the hazing was planned. In applying Rupp to bullying, schools are not likely to be liable for the actions of third party students under the foreseeability requirement unless school officials actually knew of a pattern of bullying by a specific perpetrator against a specific victim. Even if a court concludes that the student s action was foreseeable, the school may still not be liable if a court considers that the legal cause of the injury was not negligent supervision but the student s tortious conduct. In Castaldo v. Stone, lxxxiv a case based on the Columbine shootings, the court found that the attackers actions were foreseeable and thus the school had a duty to act, but plaintiff had failed to produce evidence demonstrating the school was the legal cause of the injury. The obvious disconnect in this case is that the court recognized under a separate section 1983 claim the pattern of student-on-student teasing, intimidation and bullying, found the school s failures reprehensible, but found those failures not to be conscience-shocking. lxxxv Aligning Reasonable Supervision with Educational Research The flaw in all legal approaches in the USA is that they ignore the educational research that bullying is almost certainly occurring in all schools. To continue to hold that schools cannot foresee injuries from bullying and that schools failure to implement effective prevention strategies is not a substantial cause of these injuries is to ignore reality and maintain a legal fiction that leaves victims to their own devices and schools with little incentive to change their ineffective practices. The duty for schools to act with regard to bullying is predicated on the consensus that bullying is both prevalent and damaging. Because students are within the control of school personnel, they possess the power to curb bullying and they know that identifiable standards exist to guide schools in providing precautions against bullying. To not impose a duty to act is to permit school officials to be rewarded for ignoring data on bullying. A school s failure in the USA to implement reasonable sullying prevention strategies should be viewed as the proximate cause of a bullying victim s injuries. In a school where effective prevention strategies are in place, the culture of the school will not permit bullying to take place. Students will be aware that bullying will not be tolerated, teachers will be trained to recognize and report bullying, and administrators will have the resolve and board support to address the misconduct firmly and fairly. Half-hearted announcements about bullying and efforts to alert teachers will be treated for what they are invitations for bullies to continue with their misconduct. In the end, in the USA, courts and legislatures must create clear incentives for schools to adopt effective anti-bullying strategies. The impetus for a change in schools can come from a variety of fronts funding, accreditation, and an aware judiciary that will align Mawdsley Cumming ANZELA

12 and reformulate definitions of reasonable supervision with what educational research ahs to offer. School bullying, policy and law in Australia It is always interesting to compare education law practices in Australia with the USA, to examine areas where they are so similar and yet so different. Bullying is an example. Bullying does take place in Australian schools. It is a concern. The statistics on school bullying appear similar to those reported in the USA. There is real concern in Australia that our high youth suicide rates are related to instances of bullying. Similarly, pathways to crime and recidivism are linked to bullying practice and bullying victimisation. lxxxvi It is a very serious concern at the school level. It is a more serious concern for victims of bullying. A definition often used in Australia for bullying involves three elements: the first is that needs to be a power imbalance although the act of bullying itself can eventually lead to a power imbalance; the second is that it generally needs to be a repeated activity a single event may be considered just an assault to maintain the power imbalance; third, although not necessarily consciously, the intent or the effect is to produce harm to the victim. The type of harm may be physical or mental. lxxxvii This section of the paper examines policy and legal claims around school bullying in Australia, and in particular, focuses on the area from the perspective of the victim. What venues are open to a school bullying victim to have the issue addressed? Federal law and intervention In the absence of a Bill of Rights Australians do not have clearly identified individual rights. Several of Australia s states and territories lxxxviii are developing such Bills and these may address this issue. Australia is signatory to sufficient international Bills and Treaties to ensure an underlying expectation that Australian individuals should have the right to live free from harm from others, in any form. However, the absence of a Bill of Rights means that there is no Constitutional framework to inform legal actions regarding bullying, as in the USA. Therefore, an individual is likely to have recourse only to statutory law, such as under the AntiDiscrimination laws, lxxxix to tort law, requiring negligence, or the Criminal Codes in various states. However, a major difference between Australian federal policy and US federal policy in the area of school bullying may be in the difference between the Australian Safe Schools Policy promoted through the federal Schools Assistance Act xc and the US laws of No Child Left Behind and IDEA. The parallels of the Schools Assistance Act and No Child Left Behind have been noted previously, xci and therefore it is no surprise that the Schools Assistance Act has a section on Safe Schools, paralleling the US section on dangerous schools that allows parental choice to remove a child from a school where they are being bullied, but also allows the possibility the bully may follow. The Schools Assistance Act has a different interpretation. The requirements to receive federal funding on all government and non-government schools who receive federal funding through the state agreements, are S 14 Agreement on conditions of financial assistance (i) a commitment by the state to put into effect, before 1 January 2006, the National Safe Schools Mawdsley Cumming ANZELA

13 Framework endorsed by the Ministerial Council on Education, Employment, Training and Youth Affairs; S 31 Provisions that must be included in agreements (i) a commitment by the relevant authority to put into effect, before 1 January 2006, the National Safe Schools Framework endorsed by the Ministerial Council on Education, Employment, Training and Youth Affairs... While the Schools Assistance Act carries standard sections about the financial implications of non-compliance, it would seem difficult to persecute a claim that an authority or state did not demonstrate commitment to a Framework and to order refund of monies. Further, compliance has to be demonstrated at the state level. The federal government has no redress with individual schools. Although there may be some requirement for national reporting by the State authorities on how commitment is being demonstrated, xcii no measures for performance indicators have yet been specified in the regulations that accompany the Schools Assistance Act. xciii Therefore the approach that appears to have been taken at the federal level is to influence policy and practice without a real possibility of financial penalty for failure to do so. The legislative framework in the USA that would allow direct punishment of schools, rather than individuals, for not addressing bullying matters does not exist in Australian federal legislation. The major import of the Australian federal law is the Safe Schools Framework and the commitment to its implementation. Safe Schools Framework While commitment to the Framework has been legislated, the framework itself represents a collaborative policy of the Ministerial Council of Employment, Education, Training and Youth Affairs (MCEETYA), bringing together both the federal and the state Ministers of Education. xciv The underlying principle of the Framework is one of developing inschool policy and practices to remove or minimise the possibility of bullying practices in schools. The approach is more restorative than punitive. xcv The Framework includes methods of best practice and has several guiding principles including: Guiding principles for the provision of a safe and supportive school environment 6. ensure that roles and responsibilities of all members of the community in promoting a safe and supportive environment are explicit, clearly understood and disseminated. Other guidance includes the need for schools to promote environments where parents, students and staff will identify and report bullying incidents as soon as possible, and also the need to provide support for students who have been bullied. In keeping with the restorative theme, the Framework focuses on restoring the wellbeing of students who have been affected by abuse or victimisation, through the provision of adequate social support and counselling while also focusing on restorative justice for those involved in harmful behaviour. xcvi The expectation of the Framework is that school activities address not only policy and professional development for teachers, but also address prevention and intervention through curriculum on bullying and role-playing activities for student. The Framework is accompanied by an Implementation Manual xcvii and other documents Mawdsley Cumming ANZELA

14 that provide guidance and links in these areas. The Manual suggests ways to develop school policies and to identify the nature and extent of bullying already present in the school. The recommended approach is for a school to undertake an audit on policies and activities, for example to ensure that there are commonly-understood definitions of bullying. Anonymous surveys to students and parents are advised, and proformas for the surveys provided. The Framework does of course go beyond school bullying and harassment and examines the area of child abuse and neglect, and school responsibilities. A key question posed in the Implementation Manual, of significance for later discussion, is: In relation to child protection, is the school actively implementing the requirements of child abuse reporting legislation, as appropriate; identifying the indicators of all forms of child abuse and neglect; developing teachers empathetic listening skills; and implementing support and monitoring strategies, both immediate and long-term? xcviii Zero tolerance, bullying and student exclusion While some talk occurs in the media and occasional political statements in Australia of zero tolerance, it is not a general principle in the provision of education. The present philosophy is that removal of a student from school should be the last resort, and that in principle all mechanisms for maintaining a student s presence in school should be explored before the student is fully excluded. Even then alternative schooling forms should be provided. In terms of the Safe Schools Framework, as we will show later through example, the principle is to work with intervention for a student before the final stages of suspension or exclusion. Summary The contrasts between the federal scenarios of the USA and Australia in the area of safe schools versus dangerous schools and bullying legislation and policy are clear. Australia does have an agreed focus on bullying and policy and intervention. It does not have a financial capability at this stage to penalise schools and presumably not states for noncompliance. There is no federal recourse for victims of bullying in terms of individual rights, although possibly under AntiDiscrimination law, although the requirement that states should monitor that schools have antibullying policies may provide an opening for a bullied student who wishes to challenge that this requirement has not been met. The wording of the compliance is so loose that a possible interpretation could be such looseness is to discourage a possible basis of legal action. However, it is evident that in Australia the types of policy and commitment that have been noted as needed in the USA do exist. Further, while the Framework, guidelines and links to additional resources are provided, the expectation is that schools will work to examine their own Safe School issues, undertake audits and engage in within school and community activities to develop their own Safe Schools Policy. The ownership that educational research would recommend is seen as integral. The following section examines the implementation of the Safe Schools Policy in one state, Queensland. It also examines legal responses to bullying and the rights of the victim in this state. Bullying in schools in Queensland Implementing the Safe Schools Framework Mawdsley Cumming ANZELA

15 Queensland has transferred the responsibility to implement the Safe Schools Framework through its own General Provisions Act. The new Education (General Provisions) Act 2006 (passed August 2006) refers to requirements for Behaviour plans for State schools including the provision of safe environments. xcix S 278 Implementation of plan A State school s principal must take reasonable steps to ensure the aproved behaviour plan for the school is implemented consistently, fairly and reasonably. The Department of Education and the Arts (Queensland) and the government school body Education Queensland are proactive in providing resources, curriculum materials, links, guides and policy assistance to schools on the matter of student behaviour, bullying and harassment. c Non-government schools are also active in promoting safe schools and behaviour management. ci However, while private schools in Australia may enter agreements with students and parents on a more contractual basis, the government schools are also expected to require parents and students to sign a Code of Behaviour agreement from July ciiciii Further there are clear guidelines of levels of responsibility in implementing the Safe Schools Framework and behaviour management plan. Schools are expected to: provide safe and supportive learning environments... Principals are expected to: play a strong leadership in implementing and communicating The Code in the school community ensure consistency and fairness in implementing the school s Responsible Behaviour Plan for Students Regional Executive Directors... are expected to: endorse the school s Responsible Behaviour Plan for Students that aligns with The Code and complies with legislation... civcv Queensland has also developed a policy dealing with the more recent phenomena of electronic bullying including by mobile phones cvi with the expectation schools will incorporate this in their behaviour plans and have ways to [e]nsure that appropriate action is taken against any student who photographs or films other individuals without their consent or who sends harassing or threatening messages. cvii The principles being endorsed in the policies, as noted, are Telling schools, encouraging students and parents to report inappropriate behaviour, lines of authority and restorative practices for the bullies. Here is a list of people who can be approached to discuss bullying and harassment issues. Class teacher Subject teacher or home group teacher, Year coordinator, behaviour management team or head of department The school's guidance officer The school's deputy principal The school's principal District office: senior guidance officer or manager of education services District office: district director. cviii The Education Queensland website provides model policies from schools. It is worth considering elements of one of these. This School s Responsible Behaviour Plan for Mawdsley Cumming ANZELA

16 Students Processes includes components for dealing with students exhibiting inappropriate behaviours including bullying and makes the statement that it is a Telling School where students are trained to assertively tell others that they are making them feel unsafe or unwell identify safe alternatives of action to ensure their own well being identify avenues of support from staff and other key persons understand their responsibilities as ACTIVE CITIZENS (original emphasis), and, develop strategies to use when confronted with situations that affect their wellbeing. cix Further, the document outlines various stages in dealing with bullies to change their behaviour with the most extreme, prior to suspension or exclusion, strategy to be: Students who engage in aggressive, bullying or assaulting behaviours on an ongoing basis despite various intervention strategies... may be required to take part in the Guided Play Group. cx Issues of appropriate policy developments with respect to schools in the USA were raised in the first section of the paper. This discussion indicates that the policies and school involvement are very evident in Australia, as demonstrated in Queensland. There is, however, room for concern in these policies. First, research consistently demonstrates, as noted earlier, that many will not want to tell about bullying behaviours for fear of becoming a further victim of the bully, if the behaviour cannot be stopped. It will take strong school community commitment to overcome this simple factor. Second, while the policies and masses of resources and curriculum guides are in place, they are just words. A further element of the research noted earlier is that those observing bullying often also come to view the victim with lower esteem, themselves becoming a part of the bullying syndrome. What is of concern in much of the documentation about the bullying policies and frameworks in Australia is that while on the one hand they seek to increase the self esteem and sense of power of the individual to take control of bullying contexts, the extracts from the school policy above show how easily this could be interpreted as implying that individuals are responsible for acts of bullying happening to themselves. There is a sense in many of these policies and resources that they may shift the legal responsibility on the part of the school and authority to ensure that bullying does not occur and to provide the safe environment for children. Most importantly, in the sample documents examined, there does not appear to be an emphasis on the provision of support, and remedy, for the individual that has been bullied. While this was a small but important focus of the original Safe Schools Framework endorsed by MCEETYA, concern for the individual once they become a victim of bullying does not appear addressed in policy, or in the responsibilities of those in charge. Bullying in schools in Queensland the victim s perspective Bullying does occur in Queensland schools as it unfortunately does in schools elsewhere in Australia and internationally. While some might argue that it is human nature, the educational and legal attitude is, for the reasons cited much earlier, that it is not acceptable behaviour. Despite recognition of the prevalence of bullying in Queensland schools, surprisingly or not surprisingly, examination of reported and unreported case decisions across Mawdsley Cumming ANZELA

17 Queensland s courts and tribunals cxi shows only one case involving student to student school bullying, to which we return later. cxii cxiii While this low incidence of court challenges may indicate that bullying does not exist, we know that this is not the situation. It is possible that such an action could occur under criminal law. The Safe Schools Framework notes that appropriate authorities should be involved in handling bullying and abuse cases, including the police. A student who bullies another student physically, or threatens another student in a way that makes them fearful that they will suffer physical harm may be found liable for assault under the Queensland Criminal Code Further, S 245 Definition of "assault " (1) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person's consent, or with the other person's consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person's consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person's purpose, is said to assault that other person, and the act is called an " assault". (2) In this section-- "applies force" includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort. S 339 Assaults occasioning bodily harm (3) If the offender does bodily harm, and is or pretends to be armed with any dangerous or offensive weapon or instrument or is in company with 1 or more other person or persons, the offender is liable to imprisonment for 10 years Such acts may lead to imprisonment for adults. Criminal punishment could occur even for children in middle years of schooling, as a child between the age of 10 and 14 years may be found responsible for their actions, and over 14 years may be charged as an adult. S 29 Immature age (1) A person under the age of 10 years is not criminally responsible for any act or omission. (2) A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission the person had capacity to know that the person ought not to do the act or make the omission. It is perhaps positive that criminal convictions of children for school bullying are not recorded, in keeping with a positive reform agenda. However, the impact on the victim may not be being considered. For example, financial restitution can be available to a victim of a crime for any injury suffered. cxiv Injury in this context goes beyond physical bodily assault and can include mental trauma. cxv Since the Criminal Code does not appear to have been a focus of school bullying actions in Queensland, the remaining options open to the victim are anti-discrimination law and tort law. The latter requires establishment of all the elements of negligence by a school s actions or inactions although it is understoond that schools can be held responsible if danger to a student was foreseeable if bullying behaviour had been known previously. cxvi Clearly schools are under expectations of law, not just under the Safe Schools Mawdsley Cumming ANZELA

18 Framework, that appropriate supervision will occur in schools and around schools. Failure to supervise properly may lead to negligence claims around school bullying. The schools cannot be held vicariously responsible for the bullying student s behaviour as they are not an employee of the school cxvii but they can be held responsible for failure to create a safe school environment. AntiDiscrimination legislation in Australia is strong. The AntiDiscrimination Act 1991 (Qld) should provide a safe haven for all students, free from unfair treatment and discrimination on the grounds of race, impairment, gender or other factors. The limitation to the Act for school bullying is that in general the individual student has to demonstrate that there was some inaction or inappropriate action by a school that condoned or failed to prevent the bullying of one student by another. Further, there is still an expectation that this failure occurred in a way that is somehow connected to a characteristic of the student, not just the status of being a student. This is best examined in the one case that has come to light in Queensland. The Anti-Discrimination Act 1991 (Qld) legislates that: S 39 Discrimination by educational authority in student area An educational authority must not discriminate (b) by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority; or (d) by treating a student unfavourably in any way in connection with the student s training or instruction. S 121 Act s freedom from associated objectionable conduct purpose and how it is to be achieved (1) One of the purposes of the Act is to promote equality of opportunity for everyone by prohibiting certain objectionable conduct that is inconsistent with the other purposes of the Act. (2) This purpose is to be achieved by (a) prohibiting certain conduct; and (b) allowing a complaint to be made against a person who has engaged in that conduct; and (c) using the agencies and procedures established to deal with the complaint. S 125 added a new (c) to s 121 making such conduct an offence. Such sections would appear to provide the opportunity for addressing matters of bullying. In N v State of Queensland, cxviii a mother brought a complaint on behalf of her son whom she claimed had been discriminated against at a government school. The court focus in this decision was on the extent to which the various matters raised by the mother were admissible in court. The focus of the mother s complaint had been the treatment of her child and accompanying inattention of the school to bullying matters. It is said that in 2002 and 2003 the child attended the Calamvale Community College where he experienced bullying, viz, pushing and shoving, taunting and tormenting and being called names. It is further said that the bullying did not cease despite numerous complaints by the child s mother to the school. It is said that in March 2003, on the advice of his paediatrician, the child struck a fellow student who was allegedly bullying the child. The child was suspended for a period of 4 days in consequence. It is said this punishment was too harsh. cxix Further the claim was made under the AntiDiscrimination Act 1991 (Qld) on the basis of Mawdsley Cumming ANZELA

19 the child s impairment and Apart from the allegations relating to suspension, the complaint is said to be one of indirect discrimination; the school failing to make proper accommodation or adjustments for children with impairments such as this child. The accommodations said not to have been provided are, a program to prevent bullying, additional supervision on the part of teachers and aids (sic) to monitor behaviour. Further it is said that the school failed to make accommodations such as imposing sanctions for bullying and taking a proactive approach to assist children to succeed in school without coming to harm through taunts and adverse behaviours and a practice of not unfairly suspending or punishing children who are responding to bullying. cxx As the mother was making the complaint herself, without legal assistance, the Tribunal assisted by asking for witness reports rather than pleadings. During the case, the Tribunal also noted that the Tribunal was not bound by the same rules of evidence as the courts and therefore could include statements of hearsay if considered of value to the matter, and was required to act with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms with the understanding that [I]n all Courts there is a well-known principle that matters will not be dismissed without a hearing on the merits unless the case is a very clear one. cxxi The respondent, Education Queensland, brought an application to have the complaint dismissed under s.215a of the Anti-Discrimination Act 1991 (the Act ) because it discloses no reasonable cause of action, is embarrassing, frivolous, vexatious, misconceived or lacking in substance. cxxii The Department claimed that several statements in the witness statements were not relevant to matters referred from the Commission to the Tribunal. The Tribunal went through the statement and noted paragraphs that were not to be considered, in line with this argument. However, as the mother s complaint was based on indirect discrimination, the Department further argued that the case was not clearly made out from the mother s statement and paperwork. The Tribunal rejected that argument. Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose a term (a) with which a person with an attribute does not or is not able to comply; and (b) with which a higher proportion of people without the attribute comply or are able to comply; and (c) that is not reasonable.... In this case the letters of complaint to the Commission say, the alleged term or condition is as follows: Insufficient accommodations are provided by Calamvale Community College in the form of supervision of all children to prevent bullying and abusive behaviour from the other students. While the wording is not elegant I think it is sufficiently clear from the complaint to the Commission that the complainant s case is that in failing to provide supervision, monitoring and sanctioning for bullying behaviour at the school, the school imposed a term that children who were disabled, and thus subject to bullying, could not attend the school without being subject to significant bullying. cxxiii The Tribunal then rejected the Department s application in general noting I do not accept the submission that the witness statement does not draw any relationship between the attribute alleged and the bullying behaviour exhibited by other students at the Calamvale Community College. That evidence may be weak but it is not so weak that I would dismiss the case. Further, it is obviously the complainant s case that the term imposed by the Calamvale Community College is unreasonable. There is sufficient evidence in the witness statement failure to respond to Mawdsley Cumming ANZELA

20 complaints of bullying etc for the complainant to make out a prima facie case. Unreasonableness is just a question of fact. cxxiv Further the Tribunal ordered that the mother be allowed to provide additional information including information regarding the nature of the child s impairment and its link to the claim of indirect discrimination. Such information was likely to be the turning point for the mother s challenge. It echoes a case in New South Wales decided in cxxv In this case, the New South Wales (NSW) Department of Education and Training (DET) appealed the decision by the AntiDiscrimination Tribunal (NSW) to award $10,000 damages to a Korean girl. The award had been made on grounds that the girl had been bullied on the grounds of race and that the Department and school had failed to implement an effective antibullying policy on grounds of race. Polices and practices were in existence to target bullying but none were said to address race. The grounds of the appeal were that the claim was originally made on grounds of direct discrimination and the finding had been for indirect discrimination. Following the rules of natural justice, the Department argued it had not had the chance to rebut this claim. The Court examined the issues of natural justice, and, as above, the discretion of the Tribunal to go beyond the boundaries of court evidence rules. However, the Court s conclusion was that the appeal was valid and the finding of indirect discrimination would not be able to stand. Although there had been some adjustment to claims during the case, this was not found to be sufficient basis for considering that the accused party had sufficient notice. The Department had therefore been denied natural justice. However, the Court in this case went beyond this conclusion to examine the basis of the original decision and in effect overturned the original finding of indirect discrimination on the following grounds. The Tribunal also fell into error in its application of the statutory definition of indirect discrimination in s 7(1)(c) of the AD Act to the facts which it had found. The Tribunal identified the requirement as "to receive the full benefit of an effective anti- bullying program, a student 's race could not be an actual or possible factor in their being subject to bullying". A requirement or condition must be neutral on its face and must be one with which the entire group to which it is directed must comply (see e.g. Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at (per Dawson J)). The requirement formulated by the Tribunal divides students between those actually or possibly subject to racist bullying and those not subject to such bullying. In other words it splits the group on the basis of race. Presumably, all those students who are members of a minority racial group cannot comply with the requirement, while all those students who are members of the majority racial group can comply. A facially neutral requirement would not generally exclude all the members of a minority group. It would merely have a disproportionate impact on those members as compared with people who are not members of the minority group. For these reasons, the Tribunal has not identified a valid "requirement or condition" for the purposes of s 7(1)(c). cxxvi The Department could only be found liable for failure to act, not the behaviour of the bullying student. The test to determine discrimination required two parts. In broad terms the law requires that there be a comparison of the way in which people were treated, followed by an examination of the reasons for any difference in that treatment. The first part of that process, described in Aldridge as `differential treatment', requires a comparison to be made of the treatment afforded to the alleged victim with the treatment afforded to another person of a different race. The object of this comparison is to determine whether the treatment of the alleged victim was Mawdsley Cumming ANZELA