Bullying In Schools: Are We Doing Enough to Protect Children?
On September 22, 2010, Seth Walsh should have been skateboarding or playing baseball, listening to his new favorite song, perhaps, or talking on the phone with friends. He should have been happy and care free. After all, Seth was only thirteen years old, an age when children should be laughing and dreaming of the endless opportunities that lie ahead. Instead, Seth Walsh was lying beneath a tree in his backyard unconscious, no longer breathing. He had just hung himself. After spending the next week on life support, with his mother looking on, Seth ultimately died.
And just days earlier on the other side of the country, Tyler Climenti, an eighteen year old student at Rutgers posted what would be his last Facebook message, “Jumping off the gw bridge sorry.” Later that night Tyler took his own life as well- throwing himself into the dark and frigid water of the Hudson River.
In September, 2010, within nineteen days, four teenagers from around the country committed suicide. William Lucas, from Greensburg Indiana was only fifteen, Asher Brown from Houston Texas was thirteen. Like Seth, Billy hung himself. Asher shot himself in the head with one of his step-father’s guns. The common link? All four had been relentlessly tormented at school. Shining new light on what has become a national epidemic, these cases illuminate the devastating and increasingly deadly effects of bullying. There is some debate over whether bullying is a new phenomenon or whether children are simply reacting differently. Whatever the case may be, one thing is clear- we must take action to protect the destruction of more innocent lives.
The Department of Education recently entered the fray, releasing a “Dear Colleague” letter in which it urged school districts to address bullying within the classroom, providing school administrators with guidance on how to end harassment. Additionally, within the last couple of years, many states, including New York and Connecticut, have passed anti-bulling legislation. At what point should a school district be held liable when it fails to prevent bullying? The answer to that question is not clear-cut. Indeed, parents face several legal challenges when they pursue a case.
For instance, in 2008, the Superior Court at New Britain held that parents of a Berlin High School student could not maintain a negligence cause of action against the school district, the administrators or the child’s coach. In Dornfried v. Berlin Board of Education, et al, Robby Dornfried’s parents alleged that while a freshman and sophomore at the high school, and a place-kicker on the varsity football team, their son was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates. They further alleged that school administrators, the guidance counselor, even Robby’s coach, knew of the problem, but did nothing to stop the behavior. Robby eventually sought medical treatment and ultimately transferred to Northwest Catholic High School halfway though his sophomore year.
Analyzing whether the principal of governmental immunity barred suit, the Court recited the general rule that a municipal employee may be liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts- those performed wholly for the benefit of the public and supervisory or discretionary in nature. Agreeing with the defendants, the Court found that the supervision of school children, not only during school hours, but at extra-curricular events such as football practice or a football game is a discretionary matter. It next addressed whether it was appropriate to apply any of the exceptions to the immunity doctrine. Generally, there are three:
- Liability may be imposed for a discretionary act when the alleged conduct involved malice, wantonness or intent to injure.
- Liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws.
- Liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.
Ignoring the first two exceptions, the Court addressed whether Robby was an “identifiable person subject to imminent harm” under the law. Citing Supreme Court precedent, Judge Trombley, found he was not, 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, the participation is on a purely voluntary basis and, therefore, governmental immunity barred Robby’s negligence claims.
Earlier this year the Superior Court at New Haven reached a different conclusion in a bullying case. In Esposito v. Town of Bethany, et al, the father of an elementary school student brought suit against the Town of Bethany, the Board of Education and the Bethany Public School District alleging negligence. The student, Christina, was allegedly teased on a regular basis and at one point another student threw a ball at the back of her head during recess. Christina sustained severe injuries “leaving her with an acquired brain injury and severe optical dysfunction.”
In response to Connecticut’s anti-bulling legislation, which became effective July, 2002, the Town of Bethany adopted a comprehensive anti-bullying policy. The Plaintiff’s pointed to that policy arguing that the school failed to follow it and, thus, their acts were ministerial rather than discretionary in nature. The Court framed the issue as whether, “…a detailed method of behavior was laid down for administrators and teachers for dealing with bullying depriving them of any judgment or discretion, or that, actions were dictated to deal with the problem that involved merely the execution of an established policy.” Leaving this question unanswered, the Court ultimately erred on the side of caution, allowing the plaintiff an opportunity to present the facts at trial.
Later in its decision the Court addressed whether the “identifiable person subject to imminent harm” exception would apply if the school’s actions were in fact discretionary. In doing so, the Court hinted at expanding its view of the doctrine in the context of school bullying. The Court interpreted prior case law as suggesting that the only identifiable class of foreseeable victims is that of school children attending school during school hours, but went on to suggest, “[b]ut if a clearly identifiable person, child or adult, is exposed to imminent harm then the exception could apply also if that individual is exposed to imminent harm,” continuing, “an individual may be identifiable for purposes of the exception to qualified immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition.”
In ruling in Christina’s favor, the court also noted that the appellate courts have relaxed the “identifiable person” portion of the analysis as it pertains to school children stating simply, “they are a foreseeable class to be protected.” The Court concluded it must assume a similarly protective attitude will be applied in examining the “imminent harm” requirement stating, “bullying is condemned by state statute, children must attend schools, children are not as capable of defending themselves, they are vulnerable in the entire school area where unsupervised conduct prevails, and the bullying concept includes… a particular child subject to these acts.”
Whether a victim of bullying will be successful in bringing a claim against a school district will depend heavily on the facts and circumstances of the case as well as the theory of liability, the state in which the claims are made and the causes of action asserted. As set forth above, in Connecticut governmental immunity may preclude recovery altogether unless the victim can demonstrate the application of an exception is appropriate.
By: Michael D. DeMeola
If you have any questions regarding bullying in schools, or any special education law matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.