The following was included in TCTA's 2018-19 Survival Guide, the ultimate reference tool for Texas educators, and is current as of September 2018 but is subject to change. The information below is for information purposes only, and is not intended to substitute for advice from an attorney.

When a peer-to-peer student relationship crosses certain boundaries, students may face severe disciplinary action or criminal penalties. The Texas Education Code imposes requirements on districts for dealing with students who sexually assault, harass or bully other students. Legislation passed during the 2017 regular session, commonly known as “David’s Law,” expands a school district’s role in off-campus cyberbullying and requires school districts to adopt certain practices and procedures to prevent bullying and cyberbullying. Teachers should be aware of their responsibilities and liabilities in these situations.

Bullying

David’s Law defines “bullying” as a single significant act or pattern of acts by one or more students directed at another student that exploits an imbalance of power and involves engaging in written or verbal expression or conduct that will have the effect of physically harming a student, damaging property or placing a student in fear of harm to him/herself or his/her property, or is severe enough to create an intimidating, threatening or abusive educational environment.

The definition of bullying includes cyberbullying and specifically states that it applies to conduct that occurs at school or a school-related activity, on a school bus, or off school property if the conduct interferes with the student’s educational opportunities or substantially disrupts the operations of the school. It also requires that a school district adopt a policy that includes procedures for a student to anonymously report an incident of bullying and for providing notice of an incident of bullying to a parent or guardian of an alleged victim on or before the third business day after the incident is reported. The parent or guardian of the alleged bully must also receive notice within a reasonable time after the incident.

State law mandates that districts’ student codes of conduct prohibit bullying, harassment and “hit lists”; ensure that employees enforce the prohibitions; and provide methods for managing bullying and disciplining students. For example, a district must transfer a bullying victim, upon parental request, to a different classroom or campus. Also, a special education student may not be disciplined for such conduct until an ARD meeting has been held to review the conduct.

A student may be placed in a disciplinary alternative education program (DAEP) or expelled for engaging in bullying that encourages a student to commit or attempt to commit suicide or by inciting violence against a student through group bullying.

Sexual assault

A student who is the victim of sexual assault or aggravated sexual assault by another student at the same campus must, upon parental request, be transferred to a different campus than the offender or to a neighboring school district. If the victim chooses not to transfer, the board must transfer the offender to a different campus, or an alternative education program (AEP) or juvenile justice alternative education program (JJAEP), if there is only one campus in the district at that grade level.

Sexting

Electronic transmission of certain visual material depicting a minor via a practice commonly referred to as “sexting” is a criminal offense. A minor commits an offense by knowingly possessing or promoting by electronic means to another minor, visual material that depicts a minor engaging in sexual contact (which is broadly defined and may include some forms of nudity), if the actor produced the visual material or knew that another minor produced it.

A school administrator who possesses the visual material in good faith due to an allegation of the offense of electronic transmission of material depicting a minor has a defense to the crime of possession of child pornography. To rely on that defense, the school administrator must allow law enforcement or other school administrators to access the material only as appropriate and take reasonable steps to destroy the material within an appropriate period. Since the defense applies only to administrators or law enforcement officials, teachers and other employees should avoid taking custody of such material and should call an administrator to deal with the material or device.

The law also requires the development of programs that districts can use to address the legal, professional and social consequences of sexting and make available to parents and students in a grade level the district considers appropriate.

A student may be placed in a DAEP or expelled for releasing or threatening to release intimate visual material of a minor or of an adult student without the student’s consent.

Reporting requirements related to electronic communications

An employee designated by the principal, other than the counselor, may make a report to the school district police department or local law enforcement if, after an investigation is completed, the principal has reasonable grounds to believe that a student has engaged in conduct that constitutes an assault or criminal harassment by repeated electronic communications. A reporting person may include the name and address of each student the person believes may have participated in the conduct. A person who makes this report is immune from civil or criminal liability or discipline resulting from the report.

Sexual harassment

The law pertaining to student-to-student sexual harassment states that sexual harassment is a form of gender discrimination.

A parent may sue a school district under Title IX for student-to-student sexual harassment if severe, persistent and highly offensive sexual misconduct impedes a student’s access to the benefits of an education, and the school district, with actual knowledge of the harassment, acted unreasonably in failing to stop the misconduct. Because of this, school employees should pay attention to the following:

  • School district policies prohibiting peer sexual harassment require that employees who have knowledge of non-minor sexual harassment must report the conduct to a principal or to the district’s Title IX coordinator. Most policies do not distinguish “minor” from “non-minor” misconduct. Therefore, if any question exists, an employee should report as required to a principal or preferably to the Title IX coordinator.
  • Sexual harassment can occur among students of the same or opposite gender. Some district policies define sexual harassment to include sexual misconduct directed at a student solely on the basis of orientation.
  • An educator is required to report sexual harassment, even if the victim asks the educator to not report it.

If peer harassment rises to the level of child abuse, failure to report such abuse to Child Protective Services within 48 hours by calling 800-252-5400 may put a teacher in legal and employment jeopardy. Even failure to report as required by district policy could expose a teacher to a reprimand, or worse.

Dating violence

Each district must adopt and implement a dating violence policy as part of its district improvement plan. The policy must contain a definition of dating violence that includes intentional use of physical, sexual, verbal or emotional abuse to harm, threaten, intimidate or control another person in a dating relationship. The policy must address safety planning, enforcement of protective orders, alternatives to protective orders, training for teachers and administrators, counseling for students and awareness education.

The law allows a juvenile court to defer criminal adjudication proceedings in a case of dating violence to allow the juvenile to attend a 12-week teen dating violence court program designed to educate children who engage in dating violence and encourage them to refrain from the conduct.

Professional development and mental health resources

Continuing education requirements for teachers and principals may include instruction regarding how grief and trauma affect student learning and behavior and provide strategies to support the academic success of students affected by grief and trauma. It also requires that TEA establish and maintain a website to provide resources for school district employees working with students with mental health conditions.

The law also requires a school counselor to serve as an impartial, non-reporting resource for interpersonal conflicts involving two or more students, including accusations of bullying.

TCTA members being harassed, aware of harassment, or who have questions on the requirements related to bullying or sexual assault can call the TCTA Legal Department at 888-879-8282.

See also:

Online Contact With Students

Professional Boundaries with Students

Tips for New Teachers

Classroom Discipline