Posts tagged with "anti-bullying"

Deliberate Indifference Required for School to be Liable under Title IX for Student-Student Harassment

In a New York District decision earlier this year, a student’s cause of action under Title IX of the Civil Rights Act against the Monroe-Woodbury School District was denied because it did not show deliberate indifference in response to the student’s claim of student-to-student sexual harassment.[1]

Parents on behalf of their fifteen year old daughter brought suit against Monroe–Woodbury Central School District pursuant to Title IX of the Civil Rights Act of 1964, alleging that she was deprived of an educational environment free from sexual harassment as required by federal law.

Beginning in January 2010, when she was in the eighth grade, the student was subjected to teasing, taunting, and physical bullying by other students, which she reported to her guidance counselor.  She was sexually assaulted by a male classmate who requested a handjob and subsequently ran her  hands over the genital area of his pants and attempted to shove her hands down his pants.[2] As a result of the incident, the student alleges that she was subjected to more taunting and name-calling by other students and in response began to engage in self- injurious behavior by cutting herself. When she began attending Monroe–Woodbury High School in September, another student and friend of the first continued to harass her and in November sexually assaulted her by pinning her against a locker and pushing his hands down her pants and blouse, touching her genital area and breast.[3]  The student began missing school frequently to avoid continued harassment.  At some point she confided in her guidance counselor that her absenteeism and self-injurious behavior was the result of the persistent teasing and the two incidents of sexual assault by her classmates.[4]

The School District recommended that she attend the GO Program, an out-of-district academic program, to which her parents agreed. After her first day there, CF reported to her parents that she was uncomfortable with this placement because the students there were “in many cases, not attending their regular high schools due to serious disciplinary records and incidents.”[5] When her parents again met with the principal, they requested that their daughter be transferred to another public school to continue her high school education.  The principal refused saying there were no other options besides the GO program.[6]

The parent brought suit alleging the school failed to: (1) initiate an investigation upon the parents’ verbal complaint; (2) conduct a prompt, equitable, and thorough investigation of the charges; (3) ensure that immediate corrective action be taken, including subjecting the offending individuals to appropriate disciplinary measures; and (4) inform CF of her right to pursue legal remedies.

Title IX of the Civil Rights Act of 1964 states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a)[7]. Title IX contains an implied private right of action for plaintiffs who bring suit against educational institutions that receive federal funding, and liability may be imposed upon a school district if it is found to be in violation of this law.

Title IX funding recipients may be held liable for student-on-student harassment if the plaintiff can establish damages only where the school district: (1) was deliberately indifferent; (2) to sexual harassment; (3) of which it had actual knowledge; (4) that was so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational opportunities or benefits provided by the school.[8] A showing of deliberate indifference requires that the school had actual knowledge of the sexual harassment and either responded in a “clearly unreasonable manner in light of the known circumstances,”[9] or responded with remedial action only after a “lengthy and unjustified delay.”[10]

The Court rejected the plaintiff’s assertions that the GO Program was an “inappropriate” placement for her because it did not provide her with a “regular high school environment.” Saying even if it was inappropriate, “Title IX simply does not require recipient school districts to provide students with a ‘regular high school environment.’ Title IX does not prescribe any particular educational experience at all. Rather, Title IX merely prohibits schools from excluding anyone, on the basis of sex, from participating in an educational program that receives federal assistance; or denying the benefits of such programs on the basis of sex; or subjecting anyone in such programs to discrimination on the basis of sex.”[11]  Finding that the school did not cause the discrimination and the School District took some remedial action (not clearly unreasonable under the circumstances) in response to the student’s complaints, the Court dismissed the action.

Bullying and harassment in school should never be tolerated.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable education law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about bullying, student harassment, school liability or any other matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist., 12 CIV. 2200 ER, 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013)

[2] Compl.¶¶ 10-11

[3] Compl.¶¶ 12-13

[4] Id.

[5] Compl.¶¶ 14

[6] Id.

[7] Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681(a)

[8] Williams v. Bd. of Regents of the Univ. Sys. of Georgia, 477 F.3d 1282, 1293 (11th Cir.2007)

[10] Hayut v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir.2003)

[11] KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist.

 

Legislative Efforts to Combat School Bullying

“Bullying cannot be a rite of passage in our nation’s schools. Instead, our schools must be safe and nurturing environments that promote learning and full participation by all students. Bullying, sexual harassment and gender stereotyping of any student, including LGBT students, have no place in our nation’s schools. We must work to stop these abusive behaviors when they take place, repair their harmful effects and prevent them from happening in the future. We will use every tool in our law enforcement arsenal to ensure that all students have access to equal educational opportunities.” ~ Thomas E. Perez, Assistant Attorney General for the Civil Rights Division

Thirteen years ago, I was a mere high school freshman when the Columbine shootings occurred. This incident plunged the nation into discussion that was long overdue: the problem of school bullying. According to national surveys, “70 percent of middle and high school students have experienced bullying at some point,” with approximately 5 to 15 percent described as “chronic victims.”[1] Unfortunately, less than half actually report such incidents, and the short- and long-term effects on victims can be particularly devastating, such as depression, anxiety, poor health, and decreased academic performance and school participation.

Although bullying was cited as a potential motivator in Columbine and subsequent shooting sprees (such as the 2007 Virginia Tech massacre), as the years passed bullying once more appeared to creep out of the limelight and back into the shadows. However, this issue was hurled back onto the national stage with the hanging suicide of Phoebe Prince in nearby South Hadley, Massachusetts. Prince endured months of insults and taunting from female classmates, both in person and through Facebook, before she took her own life. This prompted communities nationwide to “crack down on bullying,”[2] while lawmakers in Boston “stepp[ed] up efforts to pass a bullying-prevention measure targeting the type of taunting” that Prince was subject to on a routine basis.[3] This resulted in the passage of “An Act Relative to Bullying in Schools.”[4]

Other states naturally followed suit, including Connecticut. Public Act No. 11-232, called “An Act Concerning the Strengthening of School Bullying Laws,”[5] became effective July 1, 2011. This Act was later codified and provided a comprehensive scheme concerning anti-bullying school policy requirements, prevention and intervention strategy, and analysis of anti-bullying policies, while behavior that constituted bullying was clearly defined.[6] In addition, the Connecticut State Department of Education has stepped up efforts to disseminate information regarding bullying as well as steps to take to file complaints. At the very least, teachers and administrators are no longer left off the hook for turning a blind eye when approached by student victims of bullying.

Should you have any questions regarding school bullying or any other question relating to education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. at Maya Murphy, P.C.’s Westport office located in Fairfield County at (203) 221-3100 or at JMaya@mayalaw.com.

Written by Lindsay E. Raber, Esq.


[1] “Bullying: A Module for Teachers,” by Sandra Graham, PhD, of the American Psychological Association. Accessed September 24, 2012: www.apa.org/education/k12/bullying.aspx

[2] “Teen’s suicide prompts a look at bullying,” by Kathy McCabe. January 24, 2010: www.boston.com/news/education/k_12/articles/2010/01/24/teens_suicide_prompts_a_look_at_bullying/

[3] “Bullying legislation gains new urgency,” by James Vaznis. January 26, 2010: www.boston.com/news/local/massachusetts/articles/2010/01/26/beacon_hill_lawmakers_see_urgent_need_for_antibullying_bill/

[4] “An Act Relative to Bullying in Schools”: www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter92

[5] Public Act. No. 11-232, “An Act Concerning the Strengthening of School Bullying Laws”: cga.ct.gov/2011/ACT/PA/2011PA-00232-R00SB-01138-PA.htm

[6] Connecticut General Statutes §§ 10-222d, 10-222g, and 10-222h.

Court Gives Plaintiff in Bullying Case Green Light to Proceed to Trial

In August 2006 Robert and Louise Dornfried filed suit against the Berlin Board of Education, its former and current superintendents,  the principal, the athletic director and the coach of Berlin High School football team on behalf of their minor son, Robby.  Robby’s parents alleged on their son’s behalf that, while a student at the high school and a place-kicker on the varsity football team, he was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates.

The parents further alleged that they complained of the misconduct to various school administrators, who, despite their knowledge of the behavior, did nothing to stop it.  As a result, Robby was allegedly forced to seek “medical care and treatment” and, halfway through his sophomore year, transferred to Northwest Catholic High School. Robby’s parents brought suit alleging negligence against the various defendants, claiming they knew or should have known that Robby was subjected to incessant bullying, harassment, intimidation, threats and/or acts of violence, but failed to take any action to prohibit, prevent, or even deter such conduct.

In a separate count, the parents claimed the principal, the athletic director and the football coach were reckless in their failure to stop the inappropriate behavior of Robby’s teammates, claiming they exhibited “a blatant and utter disregard for [Robby’s] safety and wellbeing.”  Notably, as permitted by Connecticut law, the plaintiff sought punitive damages under this count. The defendants initially attacked the plaintiff’s suit filing a motion to strike the negligence claims.

Granting the defendants’ motion, the Court held that the principal of governmental immunity barred the negligence claims because, as a general rule, a municipal employee has qualified immunity in the performance of acts that are discretionary in nature.  Although there is an exception when the injured party is an “identifiable person subject to imminent harm,” the Court held that Robby did not fall within that exception, explaining the only identifiable class of foreseeable victims the courts have recognized is that of school children attending public schools during school hours.  The Court ultimately held that, although participation in school sponsored athletic programs is most likely encouraged, participation is on a purely voluntary basis and, therefore, any resulting liability is barred by the doctrine of governmental immunity.  Significantly, although Robby was foreclosed from pursuing his negligence claims, his claim under a theory of recklessness, allowing for the recovery of punitive damages, was left intact. More recently, however, the defendants filed a motion for summary judgment attempting to eliminate that cause of action as well.  The defendants essentially claimed that, with respect to the plaintiff’s recklessness count, there are no factual issues in dispute and that as a matter of law, they are entitled to a judgment in their favor.

The court denied the defendants’ motion, however, preserving the plaintiff’s case, as well as the potential for punitive damages.  Explaining its decision, the Court first noted that Robby’s parents alleged the defendants had actual knowledge of the bullying yet failed to act, resulting in further escalation of the bullying, and that the defendants knew their failure to act would result in further harm to Robby.  Significantly, the Court then explained that summary judgment should not be used in cases that concern important public issues or questions of inference as to motive or intent, or ones that involve subjective feelings and reactions.

Citing various factual disputes in this particular case, the Court ultimately held that it is “suffused with subjective impressions, intent, motive and pubic issues which do not easily conform to the standards of summary judgment.” This ruling is significant, in part, because, as mentioned, the plaintiffs alleged that the school system, as well as various administrators, were not just negligent, but were actually reckless in their failure to respond to the bullying in question, thus exposing the school system not only to actual or compensatory damages, but punitive damages as well.  This decision is also significant because, although there is always a potential that such rulings will be appealed, the Court effectively gave the plaintiffs a green light to proceed to trial.

By:       Michael DeMeola, Esq.

If you have any questions regarding a school bullying case, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

 

Connecticut School Districts and Bullying: What Can Parents Do?

I was greeted this morning with a very unfortunate email.  The email concerned bullying in Westport Schools and included a heart wrenching video of an 8th grade girl claiming to be a victim of bullying in Westport schools. (http://patch.com/A-gcKG) It is just not enough to feel sorry for this victim of bullying, we need to question the effectiveness of the current law and policies in place to avoid the tragic consequences that other towns have dealt with because their students were victims of bullying.

I previously blogged about the revisions to Connecticut’s law against bullying in 2008.  Under Connecticut General Statute section 10-222d, the law requires “any overt acts by a student or group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school sponsored activity or on a school bus, which acts are committed more than once against any student during the school year.” In addition to definitional changes, the statute requires:

  1.  teachers and other staff members who witness acts of bullying to make written notification to school administrators;
  2. prohibits disciplinary actions based solely on the basis of an anonymous report of bullying;
  3. requires prevention strategies as well as interventions strategies;
  4. requires that parents of a student who commits verified acts of bullying or against whom such bullying occurred be notified by each school and be invited to attend at least one meeting;
  5. requires school to annually report the number of verified acts of bullying to the State Department of Education (DOE);
  6. no later than February 1, 2009, boards must submit the bullying policies to the DOE;
  7. no later than July 1, 2009, boards must include their bullying policy in their school district’s publications of rules, procedures and standards of conduct for school and in all of its student handbooks, and
  8.  effective July 1, 2009, boards must now provide in-service training for its teacher and administrators on prevention of bullying.

Westport responded to the requirements of this statute with a comprehensive bullying policy which can be found on the school district’s website under the tab for parents, and then selecting policies.  Here is the direct link to the policy: (http://www2.westport.k12.ct.us/media/policies/prohibition_against_bullying_5131.911_revised_8.25.2008.pdf)

Armed with Connecticut’s law and Westport’s policy, what should we do as parents, community members, and professionals?  I do not profess to have the answers but at a minimum, we should discuss this with our children, question the school administrators, guidance staff and teachers. Together we should challenge ourselves to make a difference using the channels available to us.  There are ways that we can help to effectuate change before it is too late.  If you know of a child affected by bullying, please act on their behalf.  Not every student will post a video to tell you this is happening. If the school is not addressing the bullying in a meaningful way to eradicate the conduct, legal redress is available and the courts will readily intervene.

If you have any questions please feel free to contact me by telephone in the Firm’s Westport office at (203) 221-3100 or by e-mail at SMaya@Mayalaw.com. Attorney Maya is a partner at Maya Murphy, P.C. Her practice is limited to Education Law and Trusts and Estates.

Teacher Placed on DCF’s Child Abuse and Neglect Registry

Twelve-year-old Kyle G., while attending MicroSociety Magnet School in New Haven, Connecticut, was subjected to repeated harassment and bullying, amounting to child abuse and neglect.  However, Kyle’s bully was not another student, but rather his teacher Nicholas Frank.  The witnesses, Kyle’s classmates.

Mr. Frank subjected Kyle to constant ridicule in front of Kyle’s classmates, calling Kyle “cheeks,” “birthing mother,” “fish out of water.” Mr. Frank even resorted to physical harassment, by pinching Kyle’s cheeks.  Mr. Frank limited Kyle to asking only ten (10) questions a day, and if Kyle went over, Kyle could choose his punishment: have his cheeks pinched or a lunch detention.  As a result, Kyle became terrified in class, as he was afraid of how Mr. Frank was going to make fun of him next. Kyle’s grades started slipping from A’s to C’s. He had trouble sleeping and started wetting his bed.

Kyle’s mother became alarmed and reported her concerns to the school administrators. Upon learning of Mr. Frank’s actions, the school advised him to stop calling Kyle names, stop pinching his cheeks, and to minimize contact with Kyle.  When questioned, other students confirmed Kyle’s story. Students reported that Mr. Frank called Kyle “pregnant” due to his weight.  As a result of the investigation, Mr. Frank was suspended for eight days without pay.

Connecticut Department of Children and Families (“DCF”) learned of the incident and charged Mr. Frank with emotional neglect. A hearing officer substantiated the finding, holding that Mr. Frank “subjected Kyle to ‘acts, statements, or threats’ that would have an adverse impact on Kyle, including referring to his facial appearance and his weight. After substantiating the findings, DCF had a separate hearing as to whether Mr. Frank should be placed on DCF’s central registry of child abuse and neglect.  In deciding to place Mr. Frank on the central registry, the hearing officer determinate that Mr. Frank “in light of the attention given to anti-bullying in the school context, should have been aware of the implications of his statements. Kyle suffered an adverse emotional impact from the plaintiff’s [Mr. Frank’s] behavior as his grades dropped and his fear of school increased.” The hearing officer found that Mr. Frank had a pattern of abuse.

On Mr. Frank’s appeal of the DCF’s findings, the Superior Court rejected Mr. Frank’s arguments that the decision was not based on substantial evidence. The Court stated, “the court defers to the conclusion of the hearing officer who noted that teachers through the schools districts are on notice that poking fun at students is inappropriate behavior.”

If you or someone you know has been a victim of bullying or harassment, please contact a knowledgeable attorney.  At Maya Murphy, P.C., we have decades of experience dealing with Education Law, harassment or bullying, Special Education Law, and discrimination– often in situations where they run concurrently.  We handle all types of issues, in a broad geographic area, which includes Westport, Fairfield, Greenwich, New Canaan, and the entire Fairfield County area.

By: Leigh H. Ryan, Esq.

If you have any questions regarding bullying, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

What Constitutes Bullying Under Connecticut Law?

In 2011, the Connecticut legislature passed a comprehensive anti-bullying law that defines bullying to mean repeated communications, including electronic communications, or repeated physical acts or gestures by a student directed to another student in the same school district that:

(i) Causes physical or emotional harm to the student who is the target of the bullying or damages this or her property,

(ii) places the student in reasonable fear of harm to himself or herself, or of damage to his or her property,

(iii) creates a hostile environment at school for the student,

(iv) infringes on the rights of the student at school, or

(v) substantially disrupts the education process or the orderly operation of a school.

Bullying includes, among other things, a written, oral or electronic communication or physical act or gesture based on any actual or perceived differentiating characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression, socioeconomic status, academic status, physical appearance, or mental, physical, developmental or sensory disability, or by association with an individual or group who has or is perceived to have one or more of such characteristics.

If you have any questions related to education law or school bullying in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

What Constitutes Bullying Under Connecticut Law?

In 2011, the Connecticut legislature passed a comprehensive anti-bullying law that defines bullying to mean repeated communications, including electronic communications, or repeated physical acts or gestures by a student directed to another student in the same school district that:

(i) Causes physical or emotional harm to the student who is the target of the bullying or damages this or her property,

(ii) places the student in reasonable fear of harm to himself or herself, or of damage to his or her property,

(iii) creates a hostile environment at school for the student,

(iv) infringes on the rights of the student at school, or

(v) substantially disrupts the education process or the orderly operation of a school.

Bullying includes, among other things, a written, oral or electronic communication or physical act or gesture based on any actual or perceived differentiating characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression, socioeconomic status, academic status, physical appearance, or mental, physical, developmental or sensory disability, or by association with an individual or group who has or is perceived to have one or more of such characteristics.

If you have any questions related to education law or school bullying in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.