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NEWS & TRENDS: The Bully Pulpit: Post-Columbine, Harassment Victims Take School To Court

By Andrew Brownstein
Reprinted with permission from TRIAL, the Journal of the Association of Trial Lawyers of America
December 2002.

It was the spring of 1995, and Crystal Shelby was afraid. The A-student at LeRoy High School in rural upstate New York told the assistant principal that she had an argument with three girls, who threatened to attack her the next day.

The girls were discipline cases, suspended time and again. But the official took no action and told Crystal to return to homeroom.

The girls were true to their word. The next day, as a crowd of students gathered in the hall, they beat Crystal’s head with a padlock and slammed her head first into a wall. Crystal now has cognitive difficulties stemming from hydrocephalus-commonly known as water on the brain-for which she has endured six surgeries.

Given the school’s warning of the attack. The jury’s substantial verdict for supervisory negligence in July should not have come as a surprise. (Shelby v. Bd. Of Educ. Of LeRoy Cent. Sch. Dist., No. 2/22/02, 2002 WL 31247602 (N.Y., Genesee County Sup. Ct. July 9, 2002).) But it did to attorneys from as far away as Florida and California, who asked Crystal’s lawyer, Terry Smith of Buffalo, the same question: “How do you do it?” More specifically, they wanted to know how he broke the shield of immunity that protects many schools from liability.

His answer was no doubt disappointing: New York does not have school immunity. But Smith believes he would have prevailed anyway. “The assistant principal was warned,” he said. “There was ample evidence from school files that these were dangerous kids and that discipline had been ineffective. It’s hard for me to believe that governmental immunity would have prevented liability under those circumstances.”

But often, it does. And immunity isn’t the only obstacle.

The victory in this case, and the surprise that greeted it, reflect evolving law in the area of school liability for student-on-student violence. Lawsuits over bullying have increased dramatically in the last five years. The bar for success remains high, but the effect of cases like Crystal’s is evident in the number of school insurers that have gone bankrupt or raised their rates by as much as 800 percent a year, school attorneys say. And at least a dozen states have enacted antibullying legislation requiring schools to train teachers and students about harassment and report incidents of bullying.

“I think it’s an emerging area of the law,” said John Teague, whose Concord, New Hampshire, firm represents 60 school districts in the state. “There’s this idea out there today that the schools should be the social service agency of last resort. We’ve absolved parents of certain responsibilities.”

Traditionally, the courts have reacted inhospitably to cases that smacked of policing the schoolyard. In Dorothy J. v. Little Rock School District, the court signaled its reluctance to intervene “any time a child skinned his knee on the playground or was beat up by the school bully.” To do so, it said, would be to turn teachers into “policemen or even prison guards.” (784 F. Supp. 1405, 1414 (E.D. Ark. 1992).)

That was before Columbine pierced the national consciousness. There had been school shootings before the massacre in Littleton, Colorado. But this time, the death toll was higher, the crime far more calculated. What emerged in the aftermath was a brutal image of students ostracized by the “popular kids” and taunted on a daily basis.

Two-thirds of teenagers involved in deadly school shootings say they were seriously bullied, and many suicides have been linked to peer harassment. Even though such outcomes are rare, Columbine and similar incidents embolden parents to hold schools accountable for the violence of their halls. The 1950s image of the bully as the big kid who extorted lunch money began to fade. Studies revealed bullying to be a pervasive part of school culture worldwide, with devastating long-term effects for both victims and bullies.

More than 16 percent of U.S. schoolchildren reported being bullied in 2000, according to a study by the National Institute of Child Health and Human Development. The survey defined bullying as physical or psychological harassment of one child by another viewed as stronger or more powerful, with behavior ranging from hazing to sexual harassment.

Now, the subject of school violence is inescapable. This year saw the debut of the Journal Of School Violence in academe and the launch of a campaign against bullying by Erika Harold, Miss America.

Though a beauty pageant might seem an unlikely forum for victims of bullying, Harold speaks from personal experience. She was the target of racial and sexual harassment at a high school for gifted students in Illinois. Eggs were thrown against her home. Students talked openly about pooling their lunch money to buy a rifle to kill her. When she reported the behavior to school officials, they asked her, “Why can’t you be submissive like other girls?”

In an interview, Harold, who starts Harvard Law School in 2004, expressed her opinion that it is too difficult to hold schools legally accountable: “The standard the plaintiffs have to meet is too high.”
Most plaintiff lawyers agree.

Emerging Theories

The same year as the Columbine shootings, the U.S. Supreme Court issued a ruling with far-ranging implications for victims of school violence.

LaShonda Davis was a fifth-grader in Macon, Georgia, when she became the target of a classmate, who repeatedly groped her breasts and genital area. She and her parents asked that her seat be moved. But teachers did nothing. Her grades fell, and she wrote a suicide note.

The result of her lawsuit was one of the Court’s famous 5-4 decisions, a split that reflected the tenor of debate around the country. The majority opinion, written by Justice Sandra Day O’Connor, was mixed, establishing that school district could be held liable for student-on-student harassment under Title IX. But it set a difficult litmus test for doing so: Schools had to “deliberately indifferent to…severe, pervasive, and objectively offensive” harassment. (Davis v. Monroe County Sch. Bd., 526 U.S. 629, 633 (1999).)

In a blistering dissent, Justice Anthony Kennedy called the opinion a judicial overreaction to “the routine problems of adolescence.” O’Connor, in a rare response from the bench, addressed jurists like Kennedy who believed the ruling would “teach little Johnny a perverse lesson in federalism.” Rather, she said, the decision “assures that little Mary may attend class.”

“The Davis case shook the cage-it was an awakening,” said Mary Jo McGrath, an educational consultant in Santa Barbara, California. “Davis did set the bar high, but it also showed that five justices felt very strongly that liability should be imposed against schools for egregious violations.”

The opinion’s reach grew as plaintiffs sought to expand Title IX protections to certain types of harassment against homosexuals. In August, a Nevada school settled a gay-bashing suit brought under Title IX and awarded damages to the victim, a student who was regularly beaten and taunted after he revealed his sexual orientation on television. (Henkle v. Gregory, No. CV-N-00-0050-RAM (D. Nev. Aug. 2002).)

But for school administrators, Davis offers several outs. The opinion states that schools can be held liable only if they deal with harassment “in a manner that is clearly unreasonable.” In a recent case, the court granted summary judgment to a school that offered a remedy to a fifth-grade girl who claimed she had been sexually harassed by another student: moving the accuser to another class. (K.F. v. Marriott, No. CA 00-0-215-C, 2001 WL 228353 (S.D. Ala. Feb. 23, 2001).)

“Understandably, the parents didn’t like that,” said James Sears, the girl’s lawyer. “They thought their daughter was the victim and that the perpetrator should be the one to move.”

While courts have been lenient with schools that make some effort to remedy ongoing problems, they have generally shown little tolerance for those that respond by retaliating against students who report harassment.

That was underscored in 2001, when a federal jury awarded damages to a football player who was the victim of hazing almost a decade before. (Seamons v. Snow, No. 1:94-CV-04-ST (D. Utah Mar. 23, 2001).)

In 1993, Brian Seamons was a second-string quarterback for the Sky View High School Bobcats in Smithfield, Utah, when his fellow players decided to initiate him into the team. One day after practice, they bound him naked to a towel rack in the locker room, affixing his wrists, ankles, and neck with athletic tape. The boys then ushered in Seamons’s date to an upcoming dance.

Seamons’s attorney, Robert Wallace of Salt Lake City, decided not to bring the suit against the players-in his eyes, they were just kids. And the school district, Wallace believed, did not have the kind of warning of the attack that would have given rise to a negligence claim.

“Brian was particularly upset that the adults in this situation didn’t vindicate him,” he said. So they devised a novel legal strategy that relied almost entirely on events that occurred after the incident. When Seamons reported the episode to police, one of the players who participated told him at practice that he had betrayed the team and should apologize. Seamons later testified that the football coach said nothing during the exchange. The coach made Seamons sit out of a scheduled game and take the weekend off to “think” about the situation. The perpetrators of the assault, meanwhile, continued to play football as news of the incident spread through the school. Seamons was suspended from the team and ultimately cut.

The court dismissed the suit twice, finding no federal cause of action-and twice was reversed by the Tenth Circuit. In the end, Seamons prevailed on a theory that his attorneys at first didn’t expect would succeed: that the coach violated his First Amendment rights by retaliating against him for going to the police.

At an evidentiary hearing, the coach was asked what he had hoped to accomplish by telling Seamons to take the weekend off to “think.” His reply: He expected the student to “reconsider” his report to the authorities.

“At that point,” Wallace recalled, “I whispered to my client that we just won the case.”

Immunity and the States

Mostly because of Davis, plaintiffs generally prefer to bring school violence cases in state court.

But even there, suits must adhere to what one attorney called the “blood and bones” standard. “Outside of Title IX, the only way I’m seeing people get at these bullying cases is when people get injured,” said Daniel Weddle, an associate law professor at the University of Missouri-Kansas City.

Such claims typically hinge on supervisory negligence by school administrators. These cases also come with significant hurdles, in the form of immunity.

Public schools are generally protected by the doctrine of sovereign immunity, which shields taxpayer-funded institutions from many suits. Teachers and administrators also have discretionary immunity, which covers on-the-spot decisions that aren’t expressly prohibited by school policy.

Nonetheless, schools typically lose their immunity when they display gross negligence, which usually entails ignoring circumstances that a reasonable person would interpret as leading to an injury.

In many circumstances, that’s a no-brainer. “The foreseeability of kids hurting other kids when they are left unsupervised is a hurdle that isn’t hard for most juries to get over,” said Thomas Mooney, whose Hartford, Connecticut, firm represents almost 70 school district.

If such cases ever get to a jury, that is. Courts give schools wide latitude when determining the type of notice that would give rise to a foreseeable act. In Marcum v. Talawanda City Schools, the court granted summary judgment in a case involving a sixth-grader who was severely beaten by classmates when his teacher left them unsupervised to attend a faculty meeting. (670 N.E. 2d 1067 (Ohio Ct. App. 1996).)

Once the teacher left, students began to misbehave and turned on Jacob Marcum, dropping him on his head, kicking him, and stepping on his back. One held him down by putting a chair on Jacob’s chest and sitting on it. They then dragged him to the back of the classroom and placed tape around his wrists and over his mouth. Despite soft-tissue injuries Jacob suffered in the attack, the court found the teacher to be “within the scope of her discretionary authority” when she left the students unattended.

Schools have a much harder time when they receive warning of an imminent threat, as in the case of Crystal Shelby in New York. Still, Smith, the girl’s attorney, doubted their chances of winning-until discovery. Crystal’s injuries left her with no memory of the attack or of meeting with the assistant principal the previous day. But an enhanced tape recording of a disciplinary hearing after the incident revealed that the official had acknowledged meeting Crystal. And depositions of more than 20 teachers included one who had heard the badly beaten girl say, moments after the assault, “I told (the assistant principal) this was going to happen.”

Such breaks are the stuff of legal victories. But for many advocates, the odds are too great. “I think our legal approach is flawed,” Weddle said. “There is a real disconnect between what needs to be done and what the law requires.”

Antibullying Legislation

States have attempted to bridge that gap with legislation requiring schools to adopt antibullying policies. Colorado led the way, about a dozen other states followed suit, and others have statutes in the works. The laws differ, but nearly all mandate harassment education and require schools to report incidents of bullying to the state.

The movement for legislation has its share of critics, from reformers who call it a political fad to school attorneys who fear an onslaught of litigation.

Many states expressly noted that their laws did not create a legal cause of action against schools. Still, critics fear that the statutes may aid civil suits by establishing a standard of care that, if unmet by the schools, can be used against them in negligence claims.

“I don’t think administrators are as fearful as they should be,” said Mooney of Connecticut, where an antibullying law goes into effect in February. “These policies aren’t a chance to indulge in good wishes and aspirations. I tell administrators to spell out the minimum of what they must do, because if they don’t, they’ll be held liable for whatever they decide.”

The legal landscape is changing in other ways. Academe, for example, is seeing a flood of research on the subject of student harassment; experts believe that their discoveries about the causes and long-term effects of bullying will eventually seep into the law, changing views about what constitutes negligence and foreseeability.

At the same time, some states are finding that they may have gone too far in their efforts to fight bullying. States like Pennsylvania that have enacted “zero tolerance” policies on violence have been sued for violating the due process rights of students.

The climate is far different from what it was just three years ago, when McGrath, the California consultant, launched a series of videos to educate school officials about bullies. Released just before the Columbine shootings, the videos were initially greeted with ambivalence. Now, McGrath, a school attorney for 25 years and former chair of the U.S. Department of Education’s expert panel on safe schools, is in demand around the country-in large part to help schools comply with state antibullying measures.

“There are so many people who are just fragrantly negligent in terms of what they know,” she said. “I think we’re in an evolution here. People aren’t winning cases right and left, but the fact that they’re being brought at all shows how much times have changed.”

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