Can you be accused of over reliance on restorative practices?

A lawsuit over bullying in Wisconsin is particularly timely as more and more schools pursue restorative disciplinary practices.   The case makes two important points. First, schools are not legally liable just because the bullying never ended. Second, some parents will push back against restorative practices. The court ruled in favor of the school district and two principals despite acknowledging that the plaintiff, a student with Asperger’s, was “severely bullied by his classmates throughout middle and high school.”  The court observed that:

The facts of this case are deeply disturbing, and what happened to Connor at the hands of many of his classmates was shameful. 

But there was no liability imposed on the district or the principals.  The school’s liability turns on whether or not it was “deliberately indifferent,” not whether or not the bullying ended.  The court dismissed the suit because of lack of evidence of deliberate indifference.  Plaintiffs did not dispute the fact that the school investigated every reported incident and took corrective action whenever bullying was confirmed. Their argument was that the school was “deliberately indifferent” and should be held liable because the bullying never ended. But as the court noted, that is not the standard for liability. 

It’s apparent from reading the decision that the school district was addressing the bullying through restorative practices.  Many of you know that the Dawg is a big proponent of restorative practices as an alternative to traditional, exclusionary forms of discipline.  But the parents of a kid who is being bullied might not look so favorably on this.  They might prefer a less enlightened, more old school response.  The parents in this case argued that the school inappropriately favored counseling over harsher forms of disciplinary action.  The court noted that:

Defendants certainly favored counseling over other, more severe types of discipline, but it appears to have worked, at least in some instances.

Moreover, the judge expressed reluctance to second guess disciplinary decisions of school administrators:

Continued counseling of a handful of students after numerous instances of bullying might be clearly unreasonable, but the evidence does not indicate that that’s what happened here.  To call these kinds of measures clearly unreasonable would be to engage in the kind of second-guessing of school administrators’ disciplinary decisions that the Supreme Court and the 7th Circuit have instructed district courts to avoid.

The case of Bowe v. Eau Claire Area School District was decided by the federal court for the Western District of Wisconsin on February 7, 2018. We found it at 71 IDELR 168.


Tomorrow: did the teacher accuse a student of racism?