Student-on-Student Harassment: A Survey

Question Presented

What are the legal remedies and causes of action available in Illinois

on behalf of a student who is being ‘Bullied’ at school?

Brief Answer

There are several possible causes of action available to a victim depending on the circumstances. The causes of action vary in their likelihood of success. These include claims in violation of: Title IX , Title VII, 42 U.S.C. § 1983 and also willful and wanton misconduct, and miscellaneous other claims.

I. Introduction

‘Bullying’ occurs when one student or a group of students says or commit acts that are unpleasant to another student. Acts such as repetitive teasing in a way the victim does not like, and asks that the conduct cease, are also considered to be ‘bullying’. When two students of equal strength quarrel or fight such behavior is not categorized as bullying. 285 Journal of Am. Med. Assoc. 2094, 2095. Bullying is measured subjectively by a victim according to the standard of a “reasonable” child. 1 Ed. Insight 1 April 2001.

In an analysis of data from 15,686 students from grades 6 through 10 in public and private schools throughout the United States it was discovered that 29.9% of the sample reported moderate or frequent involvement in bullying, as a bully (13.0%), one who was bullied (10.6%), or both (6.3%). Males were more likely than females to be both perpetrators and targets of bullying. The authors of the study concluded that the prevalence of bullying among “US youth is substantial” meriting “serious attention”. 285 Journal of Am. Med. Assoc. 2094.

II. Analysis

Legal claims filed in cases of student-on-student harassment vary widely and are extremely fact specific. The current trend in bullying claims is the use of claims of violations of the Title IX. However, the recent ruling by the Supreme Court in Davis v. Monroe County Board of Ed. and its subsequent clarification of Title IX violations may change to number of future claims. Davis v. Monroe County Board of Ed. 526 U.S. 629 (1999). Other legal claims have included violations against Title VII, 42 U.S.C. § 1983. In addition, personal injury claims of willful and wanton misconduct, personal liability and emotional distress may be available in certain egregious fact scenarios.

A. Title IX Violations

Title IX prohibits sex discrimination in education programs receiving federal financial assistance. It states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

20 U.S.C. § 1681(a) (1994). Once an educational institution has notice of a hostile educational environment created by peer-on-peer sexual harassment it must take steps to remedy the situation. Cf. Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir.1994).

A Title IX claim requires proof of six elements:

1. That the victim was a member of a protected group.

2. That the victim was subject to unwelcome sexual harassment in the form of conduct or comments.

3. The harassment was based on gender.

4. The harassment unreasonably created an intimidating, hostile, abusive or offensive educational environment.

5. The School District had actual notice of the sexual harassment conduct (the notice element).

6. The School District failed to take corrective action to remedy the discriminatory conduct and hostile learning environment.

A school where a hostile environment is found that also lacks a sexual harassment policy and grievance procedure will be in violation of Title IX because “a student does not know either of the school’s interest in preventing this form of discrimination or how to report harassment so that it can be remedied.” Sexual Harassment Guidance, 62 Fed. Reg. 12034, 12040 (1997).

1. Davis v. Monroe County Board Of Education, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).

In a 5: 4 decision, the Supreme Court held that school authorities are liable for failure in addressing student-student harassment under Title IX of the Education Amend­ments of 1972. A female fifth grade student complained numerous times about incidents of unwanted touching and inappropriate comments by a male student. Each case of harassment was reported to both the student’s teacher and mother. Her mother attempted to have the school take measures to stop the unwanted behavior and protect the student. The perpetrator was not disciplined by school officials nor was the victim permitted a new seating assignment away from her harasser. The victim’s previously high grades began dropping. When the incidents escalated, the victim and her mother filed charges against the perpetrator who was charged and pled guilty to sexual battery.

The victim’s mother filed suit on behalf of her daughter in federal district court alleging that the fail­ure of the school officials to stop the sexual harassment violated her daughter’s rights to be free from sexual dis­crimination under Title IX of the Education Amend­ments of 1972 [20 U.S.C.A. § 1681(a)].

The victim sought injunctive relief and compensa­tory damages. The district court dismissed the case and the victim’s mother appealed. The Eleventh Circuit Court of Appeals reversed in favor of the victim. 74 F.3d 1186 (11th Cir. 1996). Then, the appellate court sitting en banc vacated that judgment and af­firmed the district court’s dismissal of the claims 120 F.3d 1390 (11th Cir. 1998). The victim then appealed to the United States Supreme Court.

The court held that public school districts could only be held liable under Title IX for their own conduct, not the conduct of a third party. Here the district was liable for its inaction. It was ruled that the Davis County School District had “adequate notice” and could therefore be held liable for the improper school conduct.

The Court concluded that its earlier ruling in Gebser controlled liability in cases of student-to-student harassment. Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998). Therefore, a private cause of action under Title IX against a school district could only be successful if school officials had actual knowledge of the harassment and responded to that knowledge with deliberate indifference since school officials have significant disciplinary au­thority over any student’s inappropriate behavior.

The Court limited the scope of its judgment stating that the standard does not extend to minor incidents of childish behavior to which American educators appear to have overreacted in recent years. The Court clarified this point by stating, “the behavior [must] be serious enough to have the systemic effect of denying the victim equal access to an educa­tional program or activity” (slip op. at 11). The Court went on to explain that although conceivable, it is un­likely that a single isolated event would constitute exclu­sion from an educa­tional program. A series of misbehaviors would therefore be necessary to substantiate a claim. The court concluded that funding recipients are liable for damages only “where they are de­liberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, perva­sive and objectively offensive that it can be said to de­prive the victims of access to the educational opportunities or benefits provided by the school” (slip op. at 11, emphasis added). The Court held that the plaintiffs should be given the opportunity to present evidence and thereby remanded the case back to the lower court.

The dissent argued that funding recipients would now be held accountable for behaviors of which Congress through Title IX had not given them proper notice and predicted a flood of litigation for “merely childish” behavior.

2. The Condensation of The Davis Decision into a Legal Standard

(a) Reese v. Jefferson School District No. 14J, 208 F.3d 736 ((Or.), 2000.)

Four days after the last day of classes, a group of female high school students hid in the bathroom stalls of the boys’ bathroom and ambushed a group of senior boys by throwing water balloons at the boys in retaliation for previous alleged incidents perpetrated by the male students. The students had been warned that any misbehavior would jeopardize their participation in commencement ceremonies. The vice-principal suspended the female students. The female students filed claims under Title IX and 42 U.S.C. § 1983, alleging that the school district was liable for previous harassment committed by male students and for excluding the plaintiffs from commencement. Reviewing de novo, the district court entered a summary judgment in the school’s favor.

Under Title IX the court articulated the Davis standard from Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). This was the first application of Davis criteria to a case of student-to-student harassment. The four requirements for school district liability under Title IX for student-on-student harassment were:

(1.) A school district must have substantial control over both the victim and the harasser.

(2.) The sexual harassment must be severe, pervasive, and objectively offensive. The court noted that schools are not adult workplaces and the standard for measuring behavior is not similar. Acts of teasing and name-calling based upon gender differences would not be enough to constitute a violation

(3.) A school district must have “actual knowledge” of the harassment. That is, through an official “who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination.” Gebser, 524 U.S. at 290, 118 S.Ct. 1989.

(4.) A school must be deliberately indifferent to the harassment and thereby causing a victim to undergo harassment or to be vulnerable to it. “Deliberate indifference” occurs where the school’s response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances

Under the articulated standard the court held that the Jefferson School District was not liable for previous harassment of female students because it was not “deliberately indifferent” to sexual harassment since there was no “actual knowledge” until after the female pupils were threatened with suspension. The court also held that there was insufficient evidence of harassment “so severe as to deprive the Plaintiffs of educational benefits.”

In addition, the court held that the school district did not violate the Equal Protection Clause of the Fourteenth Amendment by punishing the female plaintiffs without punishing the male students accused by the plaintiffs. The female students failed to prove that the defendants acted in a discriminatory manner and that the discrimination was intentional. There was neither direct evidence of gender animus, nor evidence of system-wide disparate impact in punishments between genders and in fact there were anti-harassment policies and a proper record of enforcement of those policies.

The school district had timely notice of the plaintiffs’ infraction, yet had no notice of alleged misconduct by the boys until the plaintiffs were threatened with suspension. This difference in notice supports the conclusion that the differences in discipline were not unconstitutionally discriminatory.

(b) Adusumilli v. Illinois Institute of Technology 191 F.3d 455 (Ill. 1999.)

In this case a court concluded that several separate incidents of harassment were not “pervasive” and “offensive” thereby affirming the district court ruling that a Title IX claim of discrimination was properly dismissed.

A female student sued her school under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 for gender discrimination alleging that on twelve separate occasions, four male professors and six male students harassed her and that professors had retaliated by giving her “unfair grades.” The acts involving professors included “ogling” and “unwanted touching” of her arm and back. Eight of the student acts involved touching of the hand, shoulder, back and leg. One incident involved a kiss on the cheek at graduation. The other two incidents respectively involved touching the top and bottom of Adusumilli’s breast. Adusumilli, however, alleged that she complained about only two of these incidents to school officials: the touching of her right shoulder by a student named “Sam,” and the touching of her breast by another student.

The court held that the complaints were isolated incidents perpetrated by different individual student and did not constitute severe, pervasive, and objectively offensive harassment depriving the student of access to the educational opportunities or benefits provided by the school. In addition, the court found that the harassment was not “severe and repeated,” nor did it have a “systemic effect” as articulated in Davis at 1673,1677 & 1676. The court stated that these single incidents of student misconduct were unlikely to have such an effect and pointed out that in each instance the conduct ceased as soon as it occurred, and was not repeated.

B. Title VII Claims

Title VII of the Civil Rights Acts of 1964 and 1991, prohibits gender discrimination and sexual harassment in the workplace and includes specific enforcement regulations. Title VII standards for establishing a hostile work environment claim apply to hostile learning environment claims brought under federal statutes prohibiting discrimination against persons with disabilities. Rehabilitation Act of 1973, § 504(a), 29 U.S.C.A. § 794(a); Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000 et seq.; Americans with Disabilities Act of 1990, § 302, 42 U.S.C.A. § 12182. Guckenberger v Boston Univ. (1997, DC Mass) 957 F. Supp. 306, 21 ADD 243, 6 AD Cas 746.

1. Oona R. -S. – by Kate S. v. McCaffrey, 143 F.3d 473 ((Cal.), 1998.)

A Court of Appeals held that school officials’ motion for qualified immunity was correctly decided by the district court and a petition for rehearing en banc was rejected. A female student filed a suit claiming school officials permitted sexual harassment by failing 1) to take steps to remedy inappropriate conduct by a student teacher and 2) addressing the hostile environment created by the male students in her class. The student teacher allegedly fondled, kissed, straddled, called her “Oona Noodles” and otherwise inappropriately touched the student. The school principal had refused the parent’s demand to remove the student teacher. Harassment from male students included the use of slang terms and other types of offensive behavior. One allegation included a boy striking her in the face and telling her to “Get used to it”. The parents removed her from the school at the end of the school year.

The student brought a civil rights action against school officials for violations of the equal protection clause, due process clause, and Title IX, alleging that officials were responsible for permitting sexual harassment by the student teacher and by boys in her class. The court held that at the time of alleged injury the rights asserted by student under equal protection clause and Title IX were clearly established and that Title VII standards apply to hostile environment claims under Title IX.

2. Doe v University of Illinois, 138 F.3d 653 (Ill., 1998).

A fe­male student alleged that a group of male students touched her, used epithets, and in one incident a student deliberately exposed himself. The student and her parents had complained several times to school officials. She claimed the school had not done enough to punish the conduct and to prevent further occurrences by suspending one student and transferring another. Her parents removed her from the school due to the harassment.

The U.S. Court of Appeals for the Seventh Circuit reversed the District Court dismissal of Doe’s Title IX claim. The court held that a Title IX funding recipient might be liable for failure of prompt and appropriate action in cases of stu­dent-on-student sexual harassment during school activities under the supervision of school employ­ees when school officials knew of the harass­ment. The court looked to Title VII case law and found no reason why students should receive less protection from hostile environment discrimination than adult workers who are reg­ulated by Title VII.

Using the Title VII direct liability standard, the court held that a school could be liable for harassment by its students even though students are not agents of the school. The failure of action, rather than the school’s liability through agency theory, provides the basis for liability.

C. Willful And Wanton Misconduct: An Introduction

The Illinois School Code 105 ILCS 5/1-1 et seq. and the Local Governmental and Governmental Employees Tort Immunity Act 745 ILCS 10/1-101 et seq. grant immunity to teachers and certified employees for ordinary negligence that occurs when they fail to supervise educational activities. However, such employees are liable for willful and wanton failure to act. Willful and wanton conduct is an action that shows an actual or deliberate intention to cause harm, which, if not intentional, shows an “utter indifference to or conscious disregard for the safety of others and their property”. A court will establish what conduct, other than intentional conduct, is willful and wanton.

The Illinois Supreme Court has held that willful and wanton conduct includes: (1) a failure, after knowledge of impending danger, to use ordinary care or (2) a failure to discover the danger through carelessness when it could have been discovered through the exercise of ordinary care. Ziarko v. Soo Line Railroad, 161 Ill.2d 267, 273 (Ill. 1994).

The determinative issue is whether the school district had sufficient knowledge of an impending danger to be held liable, and whether it responded adequately to that knowledge. Courts rarely presume that a school had adequate knowledge or that school officials had such knowledge through awareness that a group of children will be gathering together. In the absence of prior complaints or actual events of injury, courts appear much less likely to presume that school officials have such knowledge. If the school district knows of a dangerous condition, then the question becomes whether actions were taken to correct the situation. Courts are unlikely to impose liability when a school district has made reasonable efforts.

1. Clay v. Chicago Board of Education, 22 Ill.App.3d 437 (Ill.App.1 Dist. (1974.)

A grade school pupil brought an action against the board of education and another pupil for injuries sustained as result of her being struck by the other pupil in an elementary school classroom. The Appellate Court held that the complaint failed to state a cause of action for willful and wanton negligence because the facts alleged did not create a duty or prove that the omission of any duty resulted in injury. The suit was barred by the board’s immunity.
The victim was injured when a fellow student acting without provocation struck the plaintiff in the face, causing injuries while the teacher was absent from the classroom. The plaintiff asserted that the defendant knew or should have known about the perpetrator’s tendencies toward violence and should not have allowed a yardstick to be left near or in the hands of the children.

The court articulated the standard from Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583 (Ill. 1946)., as:

‘A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.’

The court concluded that the board of education would be immune from suit for personal injuries sustained when one pupil struck another pupil in a classroom if mere negligence was alleged.

2. Templer v. Decatur Public School District No. 61, 182 Ill.App.3d 507 (4th Dist. 1989).

The Appellate Court held that a school district did not engage in wilful and wanton misconduct so as to be liable for a girl’s injury affirming the Circuit Court’s decision for a directed verdict. An action was brought against the school district on behalf of a nine-year-old girl who was hit in the eye by a neighborhood boy.

A boy allegedly harassed a third grade student on numerous occasions by rock throwing, hitting, hair pulling, and name calling at the bus stop area. The school responded by separating the two by picking them up and dropping them off at separate bus stops. As the female student waited for the school to open, the boy hit her in the right eye with his fist knocking her down. The boy muttered that he hit her in the eye because she caused the change of his bus pickup point. The court held that the school was not liable for wilful and wanton misconduct in this instance.

D. Violations of 42 U.S.C. § 1983 -An Introduction

The first issue in a § 1983 action is whether plaintiff sufficiently alleged a deprivation of any right secured by the Constitution. D.R., 109 F.3d at 1367. There are three claims that can be made in a § 1983 action. First, a special relationship existed between parties. Second, the state created a danger and is liable for the consequences of that danger. Finally, the school deprived the student of a constitutional right by actively or passively promulgating a de facto custom, policy, and/or practice of failing to properly safeguard its students, assuming the unlawful acts alleged were committed under the color of state law.

1. Special Relationship Theory

A claim under the special relationship theory exists where the state enters into a “special relationship” with a particular citizen and fails to protect the health and safety of the citizen to whom it owed an affirmative duty. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3rd Cir.1997). A “special relationship” exists only in circumstances where the plaintiff is essentially in the defendant’s custody. Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995). There is no affirmative duty on the part of the state to protect individuals against invasion by other parties. The Supreme Court held that there was no denial of constitutional liberty under due process therefore dismissing liability of defendant social services to intervene in a case of child abuse. DeShaney v. Winnebago County Dept. of Social Services,
109 S.Ct. 998 (Wis. 1989).

2. D.R. v. Middle Bucks Area Vocational and Technical Sch., 972 F.2d 1364 (3rd Cir. 1991).

In D.R., the Third Circuit Court of Appeals refused to apply the special relationship theory. Students who were sexually abused by other students brought a § 1983 action against their school, school district, and individually named teachers and officials. The circuit court held that this was not a circumstance where the state held the students in custody against their will. The court considered the whether:

(1.) Parents decide whether their children will be educated in public schools;

(2.) Parents remain the primary caretakers of their children even when their children are at school;

(3.) The plaintiffs still resided in their respective homes and therefore had access to sources of assistance other than the state; and

(4.) The plaintiffs did not depend on the school or the state for the satisfaction of their basic human needs.

D.R., 109 F.3d at 1367.

3. State-Created Danger

In Kneipp v. Tedder, a court adopted a four-part test whereby liability may be imposed. Liability was grounded upon the state’s affirmative acts that “work to plaintiffs’ detriment in terms of exposure to danger.” Kneipp v. Tedder, 95 F.3d 1199, 1211 (3rd Cir.1996). The test included that:

(1.) The harm ultimately caused was foreseeable and fairly direct;

(2.) The state actor acted in willful disregard for the safety of the plaintiff;

(3.) There existed some relationship between the state and the plaintiff; and

(4.) The state actors used their authority to create an opportunity that otherwise would not have existed for the third party’s crime to occur. Id. at 1208.

Section 1983 liability under the state-created danger theory is predicated on a state’s affirmative culpable acts that deprive plaintiff of a right protected by substantive due process. D.R., 972 F.2d at 1368. Courts consider whether the involved state actors affirmatively acted to create plaintiff’s danger or to make her more vulnerable to such danger. Id. at 1373.

4. Policy, Practice or Custom

Under the color of state law following established custom, practice, and policy of the defendant must deprive the Plaintiffs of a right secured by the Constitution in violation of §1983. Such policies must also exhibit deliberate indifference to the constitutional rights affected by that policy, custom, or practice. Beck v. Pittsburgh, 89 F.3d 966, 972 (3d Cir.1996).

(a) Stevenson ex rel. Stevenson v. Martin County Board of Education, 243 F.3d 541 (Table)(N.C. 2001.)

Stevenson alleged that the county board of education violated his liberty interest in bodily integrity and his property interest in a public education when they allowed his classmates to physically assault him at school over a period of several weeks. The United States Fourth Circuit Court of Appeals affirmed the dismissal of the federal claims finding that the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over the state law claims.

The court rejected all three § 1983 claims; first, that school officials deprived him of his interest in a public education because the continued attacks forced him to leave Williamston Middle School; second, that school officials deprived him of his bodily integrity by failing to stop the attacks by his fellow students; and third, that the Martin County Board of Education contributed to the violence by failing to develop safety plans and training its school personnel in how to respond to violent students. The Court stated that the “failure to protect by itself is not sufficient to trigger constitutional liability in this situation.”

(b) Elliott V. New Miami Board Of Education, 799 F.Supp. 818 (S.D.Ohio 1992.)

A District Court dismissed a § 1983 claim in a case where a high school freshman was repeatedly harassed and assaulted at school. The school principal and teachers witnessed several attacks yet made no effort to stop the harassment.

The court held that the State of Ohio compelled Elliott to attend school, but did not restrict her freedom as in the case of prisoners or patients in mental institutions. The court noted that students return home at the end of the school day and are free to act as people in society, unlike prisoners and patients of mental institutions. The state is not the primary caretaker of school children as in the case of prisoners and patients of mental institutions, therefore there is no special relationship under § 1983.

The court held that since Elliott’s classmates were operating as private actors when they committed the underlying acts and not the state of Ohio, the Court refused to impose liability on the school for its policies, customs, or practices.

(c) Murrell v. School District No. 1, Denver, Colorado, 186 F.3d 1238 (10th Cir. 1999)

Jones was a student born with spastic cerebral palsy who functioned at the level of a first-grader both intellectually and developmentally. When enrolled in school her mother informed the principal and special education teachers of her vulnerability to assault.

“John Doe,” another special education student who had a history of disciplinary and behavioral problems, including sexually inappropriate conduct, sexually assaulted Ms. Jones on multiple occasions. Although teachers knew Jones had been battered and may have known she was sexually assaulted, they only informed Jones’ mother of the non-sexual battery. Jones began exhibiting self-destructive and suicidal behavior, left school, and entered a psychiatric hospital.

The principal declined to investigate the incident and responded by suspending only Ms. Jones for “[b]ehavior that is detrimental to the welfare, safety, or morals of other pupils or school personnel.” The District neither notified appropriate law enforcement officials nor disciplined Mr. Doe.

The court affirmed the district court’s order dismissing the §1983 equal protection claim against the School District. The court held that the harassment was directed solely at Jones and did not demonstrate a custom or policy of the School District to be deliberately indifferent to sexual harassment as a general matter. See Monell v. Department of Social Services of City of New York, 436 US 691 (1978).

The court reversed the district court’s order dismissing Ms. Murrell’s Title IX claim, as well as its order dismissing Ms. Murrell’s Section 1983 equal protection claim as to the individual defendants remanding it to the lower court. The court held that Murrell properly alleged that the principal and the teachers in their supervisory role over the students met the harassment with deliberate indifference, and because they were not entitled to qualified immunity.

E. Claims of Emotional Distress

Claims of emotional distress are usually supplementary to another claim. However in some circumstances they can be a claim unto themselves if the circumstances merit the cause of action.

1. Cavello v. Sherburne-Earlville Central School District, 494 N.Y.S.2d 466 (N.Y. 1985)

The Supreme Court, Appellate Division affirmed a lower court’s dismissal holding that students could not recover for lost education and training due to school’s negligence in supervising other students nor could parents recover damages for their emotional distress caused by negligent supervision of other students. However, when a school breaches its duty of supervising student activity it is liable for emotional harm even though physical harm is lacking.

A female student was “ceaselessly badgered” by another female student. The harassment included incidents of verbal abuse, foul language, death threats and the brandishing of a knife, these incidents lasted nearly a year. Her brother was subjected to similar but less severe harassment. The female student reported these incidents of harassment to school officials including counselors, the dean of students and the school superintendent.

The court concluded that the school has a duty to its students and “a breach of that duty resulting directly in emotional harm that is compensable even though physical harm is lacking ” (Kennedy v. McKesson Co., 58 N.Y.2d 500 (N.Y. 1983) The court pointed to several cases indicating that a school district must adequately supervise student activities. (Wheeler v. Stevensville Hotel & Country Club, 479 N.Y.S.2d 792 (N.Y. 1984); Lauricella v. Board of Educ. of City of Buffalo, 52 A.D.2d 710 (N.Y. 1976); Cioffi v. Board of Educ. of City of N.Y., 278 N.Y.S.2d 249 (N.Y. 1967).

The court limited the scope of its decision stating that the school is not “an insurer of student safety”, and is not liable in damages for a “foreseeable injury proximately related to the absence of supervision” citing Lauricella v. Board of Educ. of City of Buffalo, 381 N.Y.S.2d 566 (N.Y. 1976)

F. Miscellaneous Claims Against School Officials

In some cases a single official can be held personally liable for their actions or inactions. These scenarios usually contain particularly egregious set of circumstances where a one official made unacceptable errors. The probability of success of such claims and amount of damage awards usually is determined by how sympathetic a jury is to a victim.

1. Kendall, III, v. West Haven Department Of Education, 2000 WL 1827535 (Conn. Super., 2000)

The Superior Court of Connecticut found an assistant principal negligent in accordance with Conn. Gen. Stat. § 7-465(a) for failing to protect the victim breaching a “certain duty of care” to protect students from dangers that may be reasonably anticipated.

A special education student was harassed and bullied by another student who informed his parents and school officials. The assistant principal was informed of the use of racial epithets, spitting and pushing but took no action and did not warn other school officials. Later the victim was attacked by the same student, fracturing his jaw and knocking out his two front teeth.

The court established that the assistant principal “did nothing” to prevent the harm yet had reason to anticipate future dangerous actions based on previous attacks. In fact, the official left work early on the day in question. The court held that the assistant principal had an affirmative duty to prevent further attacks and her inaction was not shielded by governmental immunity. She knew of “likely imminent harm to an identifiable person,” and was therefore liable for negligence. The court awarded the parents more than $67,000 in damages.

2. O’Hare v. Colonial School District, 1999 WL 773506 (E.D. Pa. 1999).

A female student argued that her constitutional and statutory rights were violated when a male student repeatedly sexually assaulted her in a photography darkroom. The plaintiff alleged that the school did not implement and enforce a safety policy, further violating the student’s constitutional and statutory rights.

The Court denied a Motion to Dismiss the § 1981 and § 1982 claims pointing to the liberal notice pleading requirements of Federal Rule of Civil Procedure 8(a). The § 1981 claim was based upon the Plaintiff’s right to ‘full and equal benefit of all laws and proceedings for the security of persons and property’ in the right to access to free public education and a non-hostile environment. The § 1982 claim was based upon the right of all citizens of the United States to have same rights, in all States to inherit, purchase, lease, sell, hold, and convey real and personal property.

What Do the Cases Teach Us?

Cases of bullying or harassment are governed by strict standards that require a claim to fulfill all of the revised elements. Courts seem unwilling to flexibly interpret these tests, and require the facts of the case to correspond accordingly. Unfortunately, in cases that do not exhibit a clear pattern of abuse but are equally damaging to the victim there is only minimal hope of remedy. Courts seem to look for a pattern of harassment as the basis for any claim. The exception to this trend might be the individual school official who is held liable for negligence and willful and wanton misconduct. However, the more rigorous standard makes such cases difficult to prove.

Generally schools should:

  • Have a written harassment policy that results in an effective and unbiased investigation of each and every allegation of harassment.
  • Ensure that reports are made to administrators who have the authority to make changes that maximize the safety of an alleged victim.
  • Ensure that administrator conduct capable of interpretation as “deliberately indifferent” is stopped immediately and that a “blame the victim” approach is not the rule in any building