Victims without legal remedies: why kids need schools to develop comprehensive anti-bullying policies.

• Author: Sacks, Julie

1. INTRODUCTION

   The consensus among physicians and social scientists, (1) educators and youth development organizations, (2) civil rights advocates, (3) and law enforcement (4) is that bullying is neither inevitable nor normal, and that it seriously impairs the health and achievement of victims. Consequently, an increasing number of state legislatures, including Ohio's, are mandating that local school boards adopt anti-bullying policies aimed at prevention and mitigation. (5)

   What exactly is bullying? "Bullying," a term used interchangeably with peer harassment, means aggressive acts made with harmful intent, repeatedly inflicted by one or more students against another. (6) Acts may be physical, verbal, indirect (such as social exclusion), or electronic (such as posting threatening messages to a website). (7) What distinguishes bullying from mere aggression is that bullying is repetitive and involves a power imbalance between a socially powerful perpetrator and a socially weaker victim. (8) Hence, bullies prey on students who are often marginalized in the wider school community because of actual or perceived differences such as obesity, disability, or sexual orientation. (9)

   Federal and state laws neither deter bullying nor provide most victims a remedy for psychological or physical injuries. Generally, federal law, whether civil rights statutes or the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, offers remedies for victims who are bullied on the basis of federally protected criteria: race, nationality, sex, or disability. (10) The vast majority of victims, however, are bullied for reasons that do not fall under this civil rights umbrella. For example, in a survey of Ohio students aged thirteen to eighteen, the majority cite physical appearance as the most common reason students are bullied and harassed (49%), followed by sexual orientation (18%), and gender expression (9%). (11) Moreover, even when victims do fall into protected categories, courts have set a high bar for recovery, with plaintiffs often prevailing in only the most horrific cases. (12)

   Victims seeking redress under state tort law often face some variation of the common law doctrine of sovereign immunity. (13) Ohio's sovereign immunity law is typical of state statutes that immunize school districts from negligent supervision claims by allowing: (1) teachers ample discretion to determine the level of supervision necessary to ensure students' safety, (14) and (2) administrators ample discretion to investigate and respond to instances of peer harassment. (15) Statutes may also shield school employees from personal liability for ordinary negligence, making them liable only for misconduct that is reckless, malicious, in bad faith, or outside the scope of employment. (16)

   Even if a victim obtains a legal remedy under state or federal law, such remedy comes long after the harm has been done--after the student has changed schools, dropped out, or is well past eighteen. (17) As a practical matter, kids need their schools to adopt and enforce effective anti-bullying policies that will protect them while they are in school. (18) Clearly, policies offering students the greatest protection are those that prevent bullying from happening in the first place, not those merely imposing consequences after incidents arise. (19) Thus, model anti-bullying policies are those that deter bullying by improving overall school climate. (20)

   This article presents an overview of current legal theories available to victims of peer harassment. The purpose of this overview is not to encourage lawsuits. Rather, by showing how the law is inadequate either to deter bullying or to provide victims redress, we hope to encourage advocates to help schools develop comprehensive, inclusive anti-bullying policies. Such policies necessarily enumerate specifically protected personal traits or characteristics so that all students--regardless of the basis of their victimization--are protected. (21)

   In our discussion of cases, we include detailed fact patterns as anecdotal evidence of pervasive school climate problems for which preventative policies are needed. These problems are: (1) peer harassment based on sexual orientation and gender stereotypes; (22) (2) perpetual victims--students who, for whatever reason, are repeatedly subjected to harassment by a succession of first-time bullies; (23) and (3) adult personnel who fail to intervene. (24) In addition, the cases illustrate that, employed piecemeal, punitive tactics such as progressive discipline, mediation, conflict resolution, and so-called "zero tolerance" policies, if unsupported by the entire school community, do not reduce bullying. (25)

2. OVERVIEW OF FEDERAL AND STATE LAW REMEDIES FOR PEER HARASSMENT

   1. Davis ex rel. LaShonda D. v. Monroe County Board of Education and its Legacy

      In the landmark case Davis ex rel. LaShonda D. v. Monroe County Board of Education, (26) the United States Supreme Court held that, under Title IX, (27) students subjected to peer sexual harassment could sue their school districts for damages if (1) the school districts were recipients of federal funds, (2) the districts had "actual knowledge" of the harassment but remained "deliberately indifferent" to it, and (3) the harassment was "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." (28) Lower courts have relied on Davis to hold that an implied right of action exists under other program-specific statutes, such as Title VI of the Civil Rights Act of 1964, Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973, for students to sue school districts for deliberate indifference to peer harassment. (29)

      1. "Deliberate Indifference" to Known Harassment: An "Onerous" Liability Standard (30)

         Title IX does not make a district liable for the conduct of school bullies. (31) Rather, a school board is liable only for its own official decision to ignore known harassment. (32) To avoid a finding of "deliberate indifference," school administrators need not expel harassers or remedy peer harassment, but "must merely respond to known peer harassment in a manner that is not clearly unreasonable" under the circumstances. (33)

         The Sixth Circuit has elaborated on Davis' "deliberate indifference" standard by requiring that schools escalate consequences when initial efforts to end harassment prove ineffective. (34) In Vance v. Spencer County Public School District, the court found deliberate indifference where a school district, despite knowledge that talking to perpetrators had no effect, continued to use that method "to no avail." (35)

         Because Davis requires schools to respond reasonably to known incidents, courts generally gauge the reasonableness of a district's response by considering whether the district imposed consequences reasonably calculated to deter known bullies from repeating offenses. (36) It is, thus, difficult, if not impossible, to satisfy the "deliberate indifference" prong of the Davis standard when the victim has been harassed by multiple, non-repeat perpetrators--even when the district has failed to protect the victim from years of abuse. (37)

         a. Denying Recovery to Victims of Multiple, Non-Repeat Offenders

         i. Doe ex rel. Doe v. Bellefonte Area School District

         For example, in a Pennsylvania federal district court case, Doe ex rel. Doe v. Bellefonte Area School District, (38) as the plaintiff alleged that students started making fun of his "homosexual clothes" in middle school, but that he only began to report incidents in the tenth grade. (39) Incidents seem to have been based on the plaintiffs perceived effeminacy, (40) For three years, between tenth and twelfth grade, Doe reported a series of harassment, mostly verbal, such as a student's yelling out a classroom window, "Doe is sexy"; being called names such as "gay," "faggot," and "peter-eater" during a volleyball game; (41) and being ridiculed in the hallway by three students who threw paper at him while calling him a "fag." (42) Much of the bullying, however, was subtle and unreported, such as "mean looks," (43) a student's whispering "fag" under his breath, (44) or being ridiculed about his clothes. (45) Doe claimed that school made him think about suicide, (46) and that he did not participate in activities such as soccer or student government for fear of ridicule. (47)

         Although the district court found Doe's abuse severe, pervasive, and objectively offensive, (48) it did not hold the district to have been deliberately indifferent. (49) The court began its analysis by dividing the abuse between what was reported and what was unreported ("two fundamental types of harassment"). (50) Ignoring unreported incidents, the court focused on the fact that "every time" Doe did report an incident of harassment, the school took action--generally an oral warning but an occasional suspension--that was "one hundred percent effective" to eliminate a repeat offense by the perpetrator of that incident. (51)

         On appeal, the plaintiff argued that the district court should have treated the pattern of harassment as a "systemic problem," (52) and that the district's response was "clearly unreasonable in light of the known circumstance that the harassment continued--namely, each subsequent incident involved a student other than the student that had been disciplined in any of the prior incidents." (53) The Third Circuit rejected this argument, upholding the lower court's view that, under Davis, a district can only be liable for known acts of harassment (54) and, therefore, the "relevant inquiry" is to review its response only to reported incidents of harassment. (55) Because Doe's perpetual harassment occurred under "new and different circumstances," there was no finding of deliberate indifference. (56)

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