By Nora Tooher
The Daily Record Newswire
BOSTON, MA -- Lawsuits targeting school districts for allowing students to be bullied by other students are on the rise.
"This is certainly an issue that has an extremely heightened awareness now, not only in schools, but across the country and among the public," said Sonja Trainor, senior staff attorney at the National School Boards Association in Alexandria, Va. "I think we have to say there's more of these suits being filed."
Since the beginning of this year, bullying lawsuits filed against school districts include:
-- A suit filed in January in state court in New York by a mother who alleged that the Trumansburg Central School District failed to protect her son, a special needs elementary school student, from bullying that took place on a school bus.
-- A $10 million wrongful death claim filed in state court in Virginia by the mother of Christian Taylor, a high school freshman who committed suicide on May 31. The suit claims that school officials ignored repeated bullying of Taylor by another student and failed to protect Taylor's safety.
-- A $10 million suit filed in state court in Maryland in April by a grandmother who alleged that Baltimore school officials ignored her grandson's repeated complaints about bullying until the boy became so distraught he tried to hang himself at school.
-- A suit filed in federal court in Wisconsin by the mother of a high school student who was rendered quadriplegic after a suicide attempt because of repeated bullying. The suit alleges Chequamegon School District and officials failed to respond to repeated bullying, threats and sexually aggressive taunting by the girl's classmates.
-- In Massachusetts, the case of Phoebe Prince -- a high school freshman who killed herself Jan. 14 because of alleged bullying -- has drawn national attention because of criminal charges filed against nine students.
Her family has hired an attorney, but no civil suit has been filed as of yet.
Search for legal grounds
So far, 44 states have enacted anti-bullying statutes. The statutes detail procedures and responsibility for dealing with bullying. But they still provide school districts and officials with immunity from causes of action for damages.
"None that I've seen provide for a private right of action," Trainor said.
Bullying suits are brought under state tort laws, federal statutes or constitutional theories such as equal protection or due process.
"I have seen them all," Trainor commented. "Some include allegations under several theories at once."
Negligence suits filed in state courts argue that the schools had a duty of care that was breached. But those claims are difficult to prove, according to Trainor, because "there's recognition in the courts ... that it's not our duty to protect one kid against the mean act of another kid unless it's brought to our attention, so those negligence cases usually don't go very far."
In Ohio, a lawsuit against a student accused of sexually assaulting another student was settled in July with the family of the alleged bully, one day after a state court judge dismissed claims against the school district and a teacher.
The case involved an alleged sexual assault of a ninth-grade basketball team member by another student.
The claims against school officials alleged hazing and failure to supervise.
"The severe challenge we had was defeating sovereign immunity, but we had testimony that the coach was present during most of the conduct. We think that demonstrates knowledge," said Joseph Braun, a partner at Strauss & Roy in Cincinnati who represented the victim's family. Braun said he intends to appeal the judge's decision.
Because of the difficulties in bringing bullying suits in state courts, many of these cases are filed as racial or sexual harassment cases in federal court, alleging Title VI or Title IX violations, according to several plaintiffs' lawyers.
"Those cases have a different standard of liability," Trainor noted, "so if [the plaintiffs] can show the school acted with deliberate indifference and that the harassment was severe ... then they have a case."
In March, the Mohawk Central School District in New York and a 15-year-old former student agreed to the settlement of a federal civil rights lawsuit. The suit, filed in 2009 by the New York Civil Liberties Union in U.S. District Court for the Northern District of New York, alleged that the school district was deliberately indifferent to harassment of a student based on sexual orientation and failed to take steps to protect the student from harassment.
"There was a pattern of harassment both on gender non-conformity and sexual orientation. It wasn't just name-calling. There was physical violence and threats," said Corey Stoughton, a senior staff attorney at the NYCLU.
Rulings, verdicts mixed
But some bullying incidents don't rise to the level of sexual harassment.
In a recent decision, the 2nd Circuit held that a school district in Westchester County. N.Y. did not violate Title IX by allegedly failing to protect a student from peer-on-peer sexual harassment.
The student, known only as S.S., and her parents alleged that the Hastings-on-Hudson Union Free School District did not properly respond to three profane, sexually suggestive e-mails sent to her by a classmate. The alleged sender claimed that he didn't send the e-mails and that another student had gained access to her account.
The 2nd Circuit agreed with a U.S. District Court finding that there was insufficient evidence that the harassment was so severe and pervasive that it denied S.S. access to educational resources and anxiety.
"The trio of offensive e-mails here at issue ... falls well short of the kind of harassment found actionable under Title IX," the court said.
Jury verdicts have been mixed.
In two recent cases, federal juries returned opposite verdicts. In Michigan, a federal jury in March returned an $800,000 verdict against Hudson Area Schools. U.S. District Judge Lawrence Zatkoff overturned that verdict early in July, but the school district -- just one day earlier -- agreed to settle the suit for an undisclosed amount.
In May, a federal jury in Arkansas returned a verdict in favor of Fayetteville School District in a Title IX peer sexual harassment suit.
'Lawsuits take so long'
Edward Olds, a civil rights lawyer and head of Mt. Royal Law in Pittsburgh, said he turns away more bullying cases than he accepts.
"I get calls, but they are very difficult cases, unless you can tie it to Title IX, for instance," he said.
Olds recently settled a lawsuit filed in federal court in Pittsburgh by the mother of a sixth-grader who allegedly became anorexic due to teasing by classmates.
"I characterized the motive for the bullying as sexual harassment, so it was brought under Title IX," he said. "There was a bunch of boys tormenting a girl, calling her fat, so we were able to assert that it was a sort of sexual harassment."
In addition to the legal hurdles, there are practical difficulties with bullying cases, according to Olds.
"It's very difficult for minors to be involved in lawsuits, and lawsuits take so long," Olds remarked. "If someone is concerned about [bullying] when they are 10, by the time they are 15 or 16 and the case gets to trial they are a different person."
But Trainor said she doesn't see any sign of the bullying lawsuits abating.
"Is it awareness making the cases be filed, or the cases bringing the awareness?" she questioned. "But I do think there are more suits."
Published: Wed, Aug 25, 2010