In two recent cases, federal courts in Massachusetts and New York have addressed bullying in schools, and in both cases, the students overcame legal arguments by their respective districts. The Massachusetts case involves a regular education student who was bullied by classmates over the course of four years, through middle and high school. The New York case involves a special education student who was bullied in elementary school. Bullying by classmates is the central theme in both cases; however, as with all bullying incidents, each case is unique. In this two-part blog series, I examine how different laws and statutes can help students and parents address bullying in school.
Title IX Claim Sticks in Bullying Case
The Massachusetts case addressed several laws; however, only the Title IX claim – the federal law that prohibits discrimination in school on the basis of sex – survived a motion to dismiss by the school, and will be allowed to proceed to trial.
Case History of Bullying and Discrimination
The case is about Noelle, who was bullied consistently by many of the same classmates through two years of middle school and then two years of high school. Noelle’s male classmates in middle school called her names and regularly taunted her. The same boys who ridiculed her asked her out (no doubt as a joke), then called her names when she refused. Noelle also sustained injuries as a result of a physical assault, was told she should “just die already.” After suffering through two years of these degrading insults, Noelle started high school with the same students. There, she continued to be taunted, poked, and called names, including “slut,” “whore,” and other derogatory terms regarding body size and sexual orientation.
The administrators of both schools were notified of the bullying, and did take some measures to address it, but the conduct continued. Inexplicably, when Noelle started high school, she was placed in the same class as some of her tormentors. Noelle suffered a panic attack when saw one of the boys who regularly mocked her at the RMV, and she proceeded to fail her driver’s test. A safety plan was developed by the school, including a right for her to report any bullying, access to the nurse, and an ability to leave class early so she did not pass particular students in the hallway. Still, the bullying continued. Noelle was placed in the same class as one of the boys. Upon complaint from Noelle and her mother, Noelle’s schedule was rearranged, however, this boy’s friends ended up in her class. During class, one of the friends pointed a laser in Noelle’s eye. The boy was suspended, but his friends continued to torment Noelle because of the suspension. Some of the boys even followed Noelle home from school one day.
Noelle contemplated suicide on Facebook. Her mother wanted to transfer Noelle to another school, but Noelle’s school did not provide any assistance to the family in this regard. Eventually, Noelle was admitted to a facility for psychiatric treatment, and withdrew from school.
School’s Failure to Protect Student from Peer on Peer Harassment
Title IX is the federal statute prohibiting discrimination in public schools on the basis of gender. The lawsuit alleged that the school administrators, including the school resource officer, failed to address the bullying, and failed to protect Noelle from peer on peer harassment. The court – on the school district’s motion to dismiss the complaint – found that Noelle stated a plausible Title IX claim because the name calling and insults could have been based on her sex (though Noelle still needs to prove this at trial). The court noted that sex discrimination can be based on gender stereotypes.
Here, the student perpetrators commented on Noelle’s body size and called her names tinged with “anti-female animus.” Due to the number of years the harassment continued, and the particular words used over and over again by many of the same students, the court found that a claim of discrimination based on gender could proceed to trial, as the words used by these students were said to Noelle because she was a girl. The court noted that the words were not only cruel, but appeared to be based on gender stereotyping – that Noelle was a girl, and did not conform to certain stereotypes about girls.
Under Title IX, students must also prove that the conduct by the harassers was severe, pervasive, objectively offensive, and interfered with the complaining student’s education. Additionally, it must also be proved that the school acted in a deliberately indifferent way in responding to the harassment, and its response was unreasonable. This is generally a very difficult standard to prove, as most school take some steps to address the harassment, and it is not enough to prove that the school should have done more. Though Noelle’s schools did take some action once they were put on notice of the bullying, the bullying continued for four years, through two schools, and by most of the same students. Given the persistence of the bullies, the initial remedies proposed by the school were simply ineffective at dealing with the harassment.
Gender Based Harassment and Bullying to be taken Seriously
Noelle’s other claims were dismissed for various reasons, which will not be discussed in this entry. It is important to note that Title IX claims can only be made against the school or district, not individual administrators.
Though that case has not yet proceeded to trial, the initial finding by the court that Noelle’s bullying case could prevail under Title IX shows that schools must take all instances of bullying and harassment that could possibly involve gender very seriously. Allowing a student to be bullied in this manner for four years was inexcusable.
In Part II of this series, I examine a bullying case out of New York involving a special education student and the Individuals with Disabilities Education Act (IDEA).
Bullying Court Cases
- The U.S. District Court in Massachusetts (Harrington v. City of Attleboro, et al, 15-cv-12769-DJC)
- The U.S. Court of Appeals, Second Circuit (NY) (T.K. and S.K v. New York City Department of Education, 14-3078-cv)
About the Author
Andra J. Hutchins has 20 years of experience representing students and families in the areas of education law, including bullying, special education, school discipline, suspensions and expulsions, and child placement. Her practice also includes domestic relations, employment law, business litigation and professional licensure matters.