WHT Law

Bullying and School Liability Case Summaries

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Bullying and School Liability Case Summaries

Introduction

Bullying and student-on-student harassment is a pervasive problem in the U.S. and has reached schoolchildren of all ages, genders, and races. According to an Associated Press report in Education Week, a study was conducted by the Josephson Institute of Ethics of 43,000 high school students, in which 43% of students reported being bullied in the past year and 50% reported bullying someone else.[1] In that same article’s Editor’s Note, another survey conducted by the Olweus Bullying Prevention Program reported that 17% of boy and girl students report being bullied two to three times a month or more within a school semester.[2] Schools are in a unique position to protect the lives of these young victims. School officials have a “comprehensive authority…, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.”[3] The Supreme Court has in the past recognized “that the nature of [the State’s] power [over public schoolchildren] is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.”[4] Some student misconduct, regarded as bullying, which goes unaddressed may put schools in violation of federal anti-discrimination laws and may lead to school liability.

Case Summaries

Public School Liability

Gebser v. Lago Vista Independent School District (1998)[5]

The Supreme Court, in 1998, defined the standard of liability for cases involving sexual harassment of students by a school employee. This case involved the alleged sexual harassment of a student by a school teacher off-campus. The student brought suit against the school, and the Supreme Court determined that liability could only be imposed if the school official, someone who has at minimum the authority to address the discrimination, was “deliberately indifferent” to the harassment. While the Supreme Court concluded that a school could be liable for damages to a student due to such harassment by a teacher, in this case it found that the school was not liable.

Davis v. Monroe County Board of Education (1999)[6]

The Supreme Court in Davis determined that private damages action could lie against a school board, as a recipient of federal funds, in instances of student-on-student harassment, when it acts with “deliberate indifference” to known acts of harassment in its programs or activities. However, this is only true for harassment that is so “severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” The Davis case defines standards by which it would be determined whether a school board will be held liable for private damages in instances of student-on-student harassment and not standards by which a school and its administrators should address bullying and harassment.

Based on the Davis case, the following five-part harassment test was developed to determine if public school liability may exist, based on Title IX of the Education Amendments of 1972, which prohibits gender discrimination in federally funded educational programs:

(1) The student is a member of statutorily protected class (gender, race, disability)

(2) The peer harassment is based upon the protected class

(3) The harassment is severe, pervasive and objectively offensive

(4) A school official with authority to address the harassment has actual knowledge of it

(5) The school is deliberately indifferent to the harassment

Tinker v. Des Moines Independent School District (1969)[7]

This case involved an action against a school district to obtain an injunction against the enforcement of a school regulation prohibiting students from wearing black armbands while on school facilities to exhibit their disapproval of Vietnam hostilities. The Supreme Court concluded that public schools have a compelling interest in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying. However, in this particular case, the Supreme court held that in the absence of demonstration of any facts that might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, or any showing that disturbances or disorders on school premises actually occurred, regulation prohibiting wearing the black armbands and issuing suspensions to those students who refused to remove them was an unconstitutional denial of the students’ right of expression and free speech.

T.K. and S.K. v. New York City Department of Education (E.D.N.Y. April 2011)[8]

The federal district court applied a broad standard of liability to the New York public schools in this case, finding that a disabled student had stated a valid claim that she had been denied a free appropriate public education under the federal Individuals with Disabilities Education Act, due to school officials’ failure to remedy peer-bullying and harassment based on her disability. Note that the court in this case incorporated the standard set out in the Office of Civil Rights “Dear Colleague Letter” from October 2010.[9] Based on the letter, the Court concluded that schools should take prompt and appropriate action when responding to bullying that may interfere with a special education student’s ability to obtain an appropriate education.

DeGooyer v. Harkness (S. Dakota 1944)[10]

This was the very first hazing case in a non-postsecondary setting. In this case the South Dakota Supreme Court affirmed a jury verdict that found the high school athletic coach liable for his active participation in the initiation rights of the school’s lettermen club that led to the wrongful death of a student. The particular initiation employed in this case was to administer an electric shock via a device, with the coach present and assisting. The court found that the coach was charged with the “highest degree of care that skill and vigilance could suggest,” and that he failed to observe the duty owed to the student being initiated, and thus was liable for the student’s wrongful death.

Gendelman, et al. v. Glenbrook North High School, et al. (N.D. Ill. May 2003)[11]

This case was on the international media and involved an annual “powder puff” high school hazing event, where five students ended up being hospitalized. The school district responded by giving 10-day suspensions to 32 students, and all faced potential expulsions. Most students suspended were seniors who were set to graduate in a few weeks. Two such seniors brought an action in the federal court to enjoin the school district from preventing their graduations. The Northern District of Illinois denied their request for the temporary restraining order. Parenthetically, the discipline was based on a little known school district prohibition against “secret societies” even though everyone in the school, for many years, knew of the event.

Golden v. Milford Exempted Village School District (Ohio Ct. App. Oct. 2011)[12]

This case involved an attack on a member of the freshman basketball team by several fellow team members, but particularly one student who had engaged in aggressive sexual behavior toward other team members throughout the season. The student-aggressor targeted the freshman while other members of the team held the student down while waiting to board a bus to travel to basketball practice. No adults were supervising the students as they waited for the bus. When the word of the attack got out, the school district conducted an investigation. The student-victim and his parents filed suit against the student-aggressor and the school district and basketball coach. Claims against the school district and coach included civil hazing and negligent supervision. The court determined that the acts that occurred were not acts of “civil hazing” and could rather be considered “bullying”. Accordingly, the school district was not held liable under the civil hazing statutes of the state. With regard to the claim of negligent supervision, the Court found that while it was the basketball coach’s duty to supervise the team, there was no evidence that the coach acted in a manner that would be considered reckless, or willful and wanton that would lead to liability and overcome the qualified immunity provided to governmental employees.

Public Schools, The First Amendment and Bullying

Kara Kowalski v. Berkeley County Schools, et al. (4th Cir. July 2011)[13]

In a case involving cyber-bullying, a student sued the school district for limiting her First Amendment free speech rights by suspending her for creating a hate website against another student at school. The Fourth Circuit determined that the speech created actual or reasonably foreseeable “substantial disorder and disruption” at school; therefore, this was not the “speech” a school is required to tolerate and did not merit First Amendment protection.

T.V., M.K. v. Smith-Green Community School Corporation, et al. (N.D. Ind. Aug. 2011)[14]

This was the first case to address in a comprehensive manner whether and to what extent the First Amendment’s Free Speech Clause would apply to “sexting”. Students brought an action against their school district and principal alleging that their First Amendment rights were violated when the school suspended them from extracurricular activities for posting provocative and suggestive photographs on a social media website. The court held that the students’ conduct was speech within the realm of the First Amendment. In addition, the court found the “off campus” conduct to be protected “expressive” conduct that did not substantially interfere with requirements of appropriate discipline in the operation of the school. Accordingly, the court found the punishment imposed to be a violation of the First Amendment. Additionally, the portion of the student handbook providing that, “If you act in a manner in school or out of school that brings discredit or dishonor upon yourself or your school, you may be removed from extra-curricular activities for all or part of the year,” was found to be impermissibly overbroad and vague under constitutional standards.

J.S. v. Blue Mountain School District & Layshock v. Hermitage School District (3rd Cir. 2011)[15]

Both cases concern students engaging in off-campus behavior involving the posting and creation of fake profiles of each of the students’ principals on social networking sites. Parents of both high school students brought actions against the school district alleging that disciplining the students was a violation of their First Amendment rights. The Third Circuit ruled that the school district did not have authority to punish these students for their off-campus expressive conduct. In Layshock, the Court stated “the First Amendment prohibits the school from reaching beyond the schoolyard to impose what might otherwise be appropriate discipline.”

D.J.M. v. Hannibal Public School District #60 (8th Cir. Aug. 2011)[16]

In this case, a high school student brought § 1983 civil rights action against his school district alleging that his suspension, which was based on alleged threats the student made to shoot other students, violated his First Amendment freedom of speech rights. The Eighth Circuit found that the student’s statements were not protected speech under either “true threat” or substantial disruption analysis. A “true threat” is a statement that a reasonable recipient would interpret as a serious expression of intent to harm or cause injury to another and is intended to be communicated to another by the speaker. Such a statement is not considered protected speech. The student communicated his statements to a friend via “instant messaging”, who then shared “something serious” with an adult, who informed the school principal and superintendent. Furthermore, the student’s conduct was that which might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities, and thus is not protected by the First Amendment.

Private Schools and Liability

Illinois Bullying Prevention Law

Section 27-23.7of the Illinois School Code, which concerns ‘Bullying prevention’ is applicable to private non-sectarian schools. Specifically, the relevant sections of the statute state as follows:

Because of the negative outcomes associated with bullying in schools, the General Assembly finds that school districts and non-public, non-sectarian elementary and secondary schools should educate students, parents, and school district or non-public, non-sectarian elementary or secondary school personnel about what behaviors constitute prohibited bullying.

Bullying on the basis of actual or perceived race, color, religion, sex, national origin ancestry, age, marital status, physical or mental disability, military status, sexual orientation, gender-related identity or expression, unfavorable discharge form military service, association with a person or group with one or more of the aforementioned actual or perceived characteristics, or any other distinguishing characteristic is prohibited in all school districts and non-public non-sectarian elementary and secondary schools. . . .

* * * *

(d) Each school district and non-public, non-sectarian elementary or secondary school shall create and maintain a policy on bullying, which policy must be filed with the State Board of Education. Each school district and non-public, non-sectarian elementary or secondary school must communicate its policy on bullying to its students and their parent or guardian on an annual basis. The policy must be updated every 2 years and filed with the State Board of Education after being updated. . . .

* * * *

(e) This Section shall not be interpreted to prevent a victim form seeking redress under any other available civil or criminal law. . . .

105 ILCS 5/27-23.7(a), (d), (e) (Emphasis added.)

Cotton v. Catholic Bishop of Chicago (1st Dist. Ill. June 17, 1976)[17]

A student brought suit to recover for the injuries he sustained when he was assaulted by a fellow student in a gymnasium of his private school. The Appellate Court of Illinois held that the Illinois school code provision imposing a “willful and wanton” standard for injuries arising out of the school-pupil relationship applies to private as well as public schools. The complaint alleged a failure to supervise certain gymnasium activities and claimed ordinary negligence against the private school. Similar to lawsuits against public schools for mere negligence in student supervision or maintenance of discipline cases, private schools and their teachers have status of a parent or guardian to all students (in loco parentis) and the liability of a parent to a child does not attach absent willful and wanton misconduct. Thus, a private school may only be liable in a negligence suit if it acted willfully and wantonly (definition below).

Note: In Haymes v. Catholic Bishop of Chicago (Ill. 1968), the Supreme Court of Illinois held unconstitutional a provision that limited recovery in tort actions against private schools to $10,000.

Iwenofu v. St. Luke School (Ct. App. Ohio Feb. 16, 1999)[18]

This case involves an eighth-grade student at parochial school who was disciplined for engaging in behavior involving inappropriate touching of female classmates. The school suspended the student for three days and required him to engage in counseling before he returned. Subsequently, the student and his parents sued the school principal, school, and diocese based on various claims related to the discipline of the student and the juvenile court proceedings brought against the student by the diocese, which was resolved in favor of the student. The parents argued that the school breached its contract with them because the school did not follow its handbook in handling the matter, that the students constitutional rights were violated because no due process was afforded in the discipline proceeding, and that the school committed various torts against the student. The Court found that the actions taken by the school were within their discretion. Further, the Court found that private schools are vested with broad discretion in the manner in which they discipline students. “Private schools have broad discretion in making rules and setting up procedures to enforce those rules.” Moreover, to uphold a claim that the private school breached its contract, parents would have to prove that the actions of the school violated the school handbook and that the handbook in fact created contractual rights between the parties.

Query: Do you have an incorporation provision in your yearly contracts?

Doe v. Williston Northampton School (D. Mass. Feb. 28, 2011)[19]

This case involved a student and her parents bringing an action against her private school and teacher for sexual harassment and sexual assault. The Court found that the private claim against the private school was actionable under Massachusetts statute making sexual harassment by any educational institution an “unfair educational practice.”

Bloch v. Hillel Torah North Suburban Day School (1st Dist. Ill. Sept. 9, 1981)[20]

This older case involves a student and her parents suing a private school for the student’s wrongful expulsion. The Appellate Court of Illinois found that Illinois law recognizes the availability of a remedy for monetary damages for a private school’s wrongful expulsion of a student in violation of its contract. The court reasoned that in the case where a contract is one that establishes a personal relationship, like one between a student and his/her school, and calls for “the rendition of personal services, the proper remedy for a breach is generally no specific performance but rather an action for money damages.”

Merrill v. Catholic Bishop of Chicago (2nd Dist. Ill. Dec. 11, 1972)[21]

This case involved an action against a nonprofit private school and its staff for injuries sustained by a student who was directed to cut a length of wire from a coil. The Appellate Court of Illinois held that the (public) School Code provision that schools stand, in all matters relating to discipline and conduct, in a relation of parents and guardians as to all activities connected with school programs applies to private schools. Accordingly, the Court relieved the private school of liability for alleged negligence.

Immunity

Private schools are not afforded all of the same immunities as public schools. The Tort Immunity Act, 745 ILCS 10/1-101 et seq. provides for the protection of “local public entit[ies]” (which includes public school districts and school boards) from liability arising from such claims. 745 ILCS 10/1-101.1(a), 745 ILCS 10/1-206. However, the Tort Immunity Act does not protect private schools.

Private schools may only enjoy immunity against school liability under Section 24-24 of the School Code. Section 24-24 confers on teachers in loco parentis status involving all matters relating to the supervision of students in school activities. 105 ILCS 5/24-24. The statute grants educators the immunity that parents enjoy with respect to suits by their children. Templar v. Decatur Public Sch. Dist. 61, 538 N.E.2d 195, 198 (4th Dist. 1989). As such, Section 24-24 immunizes educators and certain other educational employees from acts involving ordinary negligence, but not from acts involving willful and wanton misconduct. Id. “Willful and wanton conduct” is that which is either intentional or committed with reckless disregard or indifference for the consequences when the known safety of other persons is involved. To prove willful and wanton misconduct, one must show that the defendant has actual or constructive knowledge that the conduct posed a high probability of serious harm to others. As long as the actions of private school personnel are not considered willful and wanton misconduct, the immunity will apply and the private school will likely be protected.

Board of Directors of Private Schools

Pursuant to the General Not For Profit Corporation Act of 1986, 805 ILC 105/101.01 et seq., a non-profit board of directors serving without compensation shall not be liable and “no cause of action may brought, for damages resulting from the exercise of judgment or discretion in connection with the duties or responsibilities of such director or officer unless the act or omission involved willful or wanton conduct.” 805 ILCS 105/108.70(a). However, nothing in Section 108.70 is intended to bar any cause of action against the non-for-profit corporation arising out of an act or omission of any director exempt from liability for negligence. See 805 ILCS 105/108.70(e).

 


[1] Associated Press (AP). Education Week. “New study reports 50% of high school students admit to bullying in the past year.” (October 27, 2010).

 

[2] Id.

[3] Davis v. Monroe County Board of Education, 526 U.S. 629, 646 (1999) (citing Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 507 (1969)).

[4]Veronia School District 47J v. Acton, 515 U.S. 646, 655 (1995). See also New Jersey v. T.L.O., 469 U.S. 325, 342, n. 9 (1985) (“The maintenance of discipline in the schools 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.”).

[5] Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S. Ct. 1989 (1998).

[6] Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S. Ct. 1661 (1999).

[7] Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).

[8] T.K. and S.K. v. New York City Department of Education, 779 F. Supp. 2d 289 (E.D.N.Y. 2011).

[9] See Handout, Pgs. __ – __.

[10] DeGooyer v. Harkness et al., 13 N.W.2d 815 (S. Dakota 1944).

[11] Gendelman v. Glenbrook North High School, No. 03 C 3288, 2003 WL 21209880 (N.D. Ill. 2003).

[12] Golden v. Milford Exempted Village School District Board of Education, No. CA2010-11-092, 2011 WL 4916588 (Ohio App. 12th Dist. Oct. 17, 2011).

[13] Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011).

[14] T.V. ex rel. B.V. v. Smith-Green Community School Corp., No. 1:09-CV-290-PPS, 2011 WL 3501698 (N.D. Ind. Aug. 10, 2011).

[15] J.S. ex rel. Snyder v. Blue Mountain School District, 650 F.3d 915 (3rd Cir. 2011); Layshock v. Hermitage School District, 650 F.3d 205 (3rd Cir. 2011).

[16] D.J.M. v. Hannibal Public School District #60, 647 F.3d 754 (8th Cir. 2011).

[17] Cotton v. Catholic Bishop of Chicago, 39 Ill. App. 3d 1062, 351 N.E.2d 247 (1st Dist. 1976) .

[18] Iwenofu v. St. Luke School, 132 Ohio App. 3d 119, 724 N.E.2d 511 (Ct. App. Ohio 1999).

[19] Doe v. Williston Northampton School, 766 F. Supp. 2d 310 (D. Mass. 2011).

[20] Bloch v. Hillel Torah North Suburban Day School, 100 Ill. App. 3d 204, 426 N.E.2d 976 (1st Dist. 1981).

[21] Merrill v. Catholic Bishop of Chicago, 8 Ill. App. 3d 910, 290 N.E.2d 259 (2nd Dist. 1972).