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Can Schools Be Held Liable for Bullying? Suits Face a High Legal Bar

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By Mark Walsh. Cross posted from the School Law blog.

Even as a new lawsuit seeks to hold the New York City school district liable for failing to reduce violence and bullying in schools, recent court decisions show how difficult it is for plaintiffs to win on claims related to bullying.

A group of parents and other guardians of students backed by an organization called Families for Excellent Schools is seeking class action status for their suit against the New York City system. The suit in Doe v. New York City Department of Education, filed April 6 in U.S. district court in Manhattan, alleges that the school system is not adequately responding to in-school violence, harassment, and bullying.

The suit says the alleged pattern of "acts and omissions" by the New York City system "reveal a custom and practice of deliberate indifference to in-school violence, creating a culture of indifference to continued, violent assaults against named class plaintiffs and others similarly situated."

The suit's claims are based on the 14th Amendment's due process and equal-protection clauses, as well as New York state constitutional and statutory claims.

The New York City district has not yet responded to the suit.

Meanwhile, two federal appeals court decisions in recent weeks rejected efforts by students and families to hold school systems legally responsible for bullying by students.

On April 8, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled unanimously that a Maryland school district could not be held liable for the alleged bullying of a student with disabilities by other students.

A student at Aberdeen (Md.) High School identified as S.B. had attention deficit hyperactivity disorder and learning disabilities, and he was often bullied, "sometimes severely," the appeals court said.

But school administrators and officials of the Harford County district investigated complaints made by S.B.'s parents and disciplined the offenders, court papers say.

The parents sued under the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990, alleging that the district failed to prevent the bullying.

Both a federal district court and the 4th Circuit court agreed that the Harford County district did not respond to the bullying with "deliberate indifference," the standard required under U.S. Supreme Court precedents to hold it responsible.

"While we sympathize with students and parents who face school bullying issues, we agree" that "S.B. has provided no evidence that the [school district] acted with the deliberate indifference necessary to hold it liable for student-on-student harassment," the 4th Circuit court said in its decision in S.B. v. Board of Education of Harford County.

On March 25, another federal appeals court reached a similar conclusion that school officials did not respond with deliberate indifference to an alleged pattern of repeated bullying and sexual harassment of a Tennessee student.

A physically slight boy identified in court papers as "DS" was a student in Rutledge Middle School in the Grainger County, Tenn., district from 2010 to 2012 when he faced a string of altercations with other students. The bullying included being shoved and punched and being called anti-gay slurs.

DS's parents sued the Grainger County district and various school officials under Title IX of the Education Amendments of 1972, alleging that the boy's bullying was essentially sexual harassment by his peers that the school system failed to respond to adequately. The family also filed a claim under the equal-protection clause of the 14th Amendment.

Both a federal district court and the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held that the family's suit fell short on both claims.

In its March 25 decision in Stiles v. Grainger County, a three-judge panel of the 6th Circuit court unanimously ruled that the bullying and sexual harassment pattern, which it outlined in detail, was not met by deliberate indifference by school officials.

"As the district court observed, each time DS or his mother communicated a specific complaint of harassment, the school investigated promptly and thoroughly by interviewing DS, interviewing other students and teachers, taking detailed notes, and viewing video recording when available," the appeals court said. "At the conclusion of each investigation, the administrators disciplined students found guilty of wrongdoing either with a verbal warning or a suspension."

"Courts should not second-guess school officials' disciplinary judgments," the appeals court continued. "We acknowledge that the school's remedial measures did not eliminate DS's problems with other students. ... But the school's efforts here went beyond merely talking to the offenders. They consisted of multiple investigations, several in-school suspensions, and class scheduling that separated DS from his harassers."

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