Tragic Consequences of Words – Bullying Words Led to Involuntary Manslaughter Conviction

Can mean words create allow a court to hold someone responsible in criminal court for the suicide of another person? According to a recent article by the New York Times on a case in Massachusetts, the answer is yes.

According the article, teenagers in an opposite-sex relationship were dating. The boyfriend had previously had suicidal ideation and friends and family had helped him overcome the feelings. Years later, when he had similar feelings and turned to his girlfriend, she told him to do it. When he got out of a truck he was filling with a lethal gas, she told him to get back in the truck. There were also many other texts, not discussed in detail in the article, but it sounds like they were not supportive.

This case was heard before a judge, not a jury. For the judge, the fact that he got out of the truck and she told him to get back in the truck was  a crucial turning point for her ability to be held criminally responsible.

This is a decision at a trial court level in Massachusetts, which means that it is a case that will require other courts to follow its lead. It does not establish case law (i.e., precedent that courts are required to follow similarly to a statute or written law).

Nevertheless, some cases, in the mere seriousness become part of a cultural identity (i.e., the McDonalds’ coffee burn case) and they influence us. This case could be one of those cases. Words, uttered through technology, miles away from where the suicide occurred were enough to be considered a major factor in why a young man committed suicide.

One of the significant components of this case, from the position of someone who thinks a lot about bullying in schools and how you find ways to address it, is that the girlfriend was struggling significantly with mental health issues. This is consistent with the date from bullying research. Bullies often have greater suicidal ideation than the people they bully.

The issues are rarely ever good guy versus bad guy.  But we use laws to help ensure that we have guidelines to do no harm and for consequences when there is a harm. Technology has altered our lives. Had the boyfriend been alone, without a phone, would he still be alive? Would he, with time to himself and his own thoughts have decided that he wasn’t ready to end his own life? He did get out of the truck.

It would be nice to think that people would not engage in certain behavior because it is harmful. That it wouldn’t matter whether you could “get in trouble” for the behavior, but that you would simply chose not to do things that harm other people. But the reality is, that is not the case. I agree with the parameters the judge applied. The young man got out of his car and she told him to get back in and complete the suicide.

The future is unknown for how we will manage the wild landscape of technology, bad behavior, criminal behavior, and civil liability, but this case and many other laws and pushes for legislation make it clear, that there will be rules that govern the cyber world.

13 Reasons Why is More About Bullying, Slut Shaming, and Rape Culture than Suicide

There is a Neflix show out there called 13 Reasons Why. Some people say this show is about suicide and feel that it is inappropriate (some schools are sending warning letters to parents about it). There are some great pieces about this and I encourage you to read them.

I come to show having survived the completed suicide of one of my best friends and I am publishing these thoughts on what would have been here 39th birthday. The night she killed herself she called me to see if I could hang out, but I was too worried about how I’d do in a law school class to go hang out – and I had no idea she was in so much pain. I would have skipped the bar exam itself if I had known that she was in so much pain. So it is not as if I come to 13 Reasons Why from a place of not knowing how devastating suicide is for those who survive.

The thing is, I don’t think 13 Reasons Why is about suicide. Yes, a girl does commit suicide and the tapes that she made explaining how she got to such a helpless point are the premise of the story, but her actual suicide is not the point of the show. What I think that this show gets so incredibly right, is how tough growing up can be, how kids so often do not talk about what’s impacting them, even to the best parents. I think this show talks honestly about those issues and does so better than anything I’ve seen before.

***Warning Spoiler Alerts***

In this series a young woman who is new to the school. A cute jock asks her out, and she has her first kiss. He takes a picture of her riding down a slide and there I think her skirt goes up and the guy’s “friend” sends the photo all around school, and a rumor starts that she is a slut.

Lesson One: There is a lot of slut shaming in our society and in our high schools. It can have an incredibly negative impact on girls. Also, it’s super scary to think moments that seem innocent or moments that you though were between the two of you can suddenly become wide spread. That’s why we know have laws about “Revenge Porn.”

She finds a few friends, but only a few. Her two closest friends basically ditch her (in part because they start dating each other, in part because they got more popular).

Lesson Two: High school can be achingly lonely. There’s even an app someone created now that is you can sit with us or something, but basically tries to tell people who feel lonely that there is a place where they may be welcome.

Then the geeky photographer at school stalks her, manages to get a picture of her and another friend (who happens to be female and very afraid she may be gay) experimenting with a kiss. This photo also gets widely circulated. While it isn’t completely clear who the girls are, a lot of people suspect she’s one of the girls. As an aside, the “good boy” who is the main narrator of this show flashes back to masturbating to this image – demonstrating a subtle and important point, even “good boys” get pulled into the hurtful drama and take advantage of it. Hannah (the girl who committed suicide) encourages everyone who reads the tape to throw a rock at the guy’s window. Instead the Clay (the “good boy”) takes a photo of this guy changing and shares it with the whole school. This kid, who was already widely unpopular, gets even more bullied and “pantsed” which the counselor at the school apparently doesn’t even understand the terminology, let alone acknowledge how harmful it is. Later, we also see that this kid is stockpiling weapons, with the implication being that he is planning on a school shooting.

Lesson Three: Vigilantism is not a good idea. I think we get some remorse from Clay about the impact that it had on this guy’s life, but I think he still feels perfectly justified in having done this because turnabout should be fair play right? Wrong. What the student did was absolutely wrong. But he’s also a student who is hurting and is widely unpopular and his only way to connect with people seems to be through photography. Vigilantism didn’t change what happened to Hannah and because actions have consequences, as the show is trying to show, what Clay did could end up being a large part of what tipped this kid over. Two wrongs, don’t make a right.

If there could be a true villain to the story, It is Bryce. Bryce is a super wealthy, super popular, super loved athlete. Basically a god at the school. And a serial rapist. He devalues women so much, he thinks of them as property and rapes his best friend’s girlfriend when she’s passed out drunk. Something Hannah witnesses and doesn’t do anything about, so she feels crappy about this. But then her boyfriend lies about what happens. Somehow she is was conscious enough to know something wrong happened, but not what happened and she starts drinking heavily – at school, skipping school, at home, always.

Then Bryce rapes Hannah in a hot tub. When Hannah tries to talk to her counselor about what happened he asks if she said no. As if the word “no” is the only way a person says “no.” Hannah tried to get away, tried to push him off, expressed a lack of consent and then went numb. He was much stronger and had her pinned down. This scene is powerful in that reminds me of how she committed suicide. While she is in the hot tub and he is raping her, we see her wrists being pinned down and scrapped against the side of the hot tub. This is the moment Hannah truly checks out and decides life isn’t worth living. So it’s interesting when she does the act, it is through cutting her wrists in a bathtub.

Lesson Four: Rape culture is a real thing. Jocks (and sometimes U.S. Presidents) think they should be immune from any kind of rape allegation because they are so popular any girl would want to have sex with them. When Clay is recording Bryce, trying to get a confession, there’s a line about how every girl at the high school wanted him. It’s pretty clear that he has likely raped far more than the two young women we know about.

Hannah makes one last ditch effort to try and get help before she kills herself – she turns to her high school guidance counselor. We see enough about his story to know he has a wife with young kids and his home life is likely distracting. While he’s meeting with Hannah his cell phone rings multiple times and this his direct phone line rings. I’m fairly certain if we got into the story there, something was happening at home that distracted him during the meeting with Hannah. But the reality is, Hannah was clearly feeling awful because of a rape he minimized and suggested was just behavior she now regretted. You couldn’t really get more warning signs than Hannah walked in there with and he didn’t do the basic things he should have done to plan for her safety.

Lesson Five: Schools perpetuate rape culture and would rather not rock the boat when a popular athlete is accused by a nobody girl. The school engages in a lot of idolized worship of their athletes and makes it clear they are the stars and the most important people at the school. There is a pretty widespread culture of sexual harassment at school and the school officials are oblivious to it. There’s a scene when Hannah’s mom goes into the bathroom and sees all sorts sexual messages that are also harassing, and the school had no idea. The school also appears to be oblivious to the sexual photos circulating during the school day. Schools are failing at keeping our students safe.

Perhaps one of the hardest things for parents watching 13 Reasons Why is understanding how little young adults confide in parents. Part of it is developmental hormones, lack of language to express what’s going on, being in a place where it seems like they are old enough to handle problems on their own. Not having any idea how their parents would react. But the parents depicted throughout much of this

Lesson Six: Our kids don’t talk about the things that are most upsetting to them. I believe part of the reason is not having the vocabulary. Emotional intelligence is hard. Part of it is also the normal development to adulthood and working on being your own person. Part of it is the fear of how what you say will be received. Will it be minimized? Will it be understood?

Conclusion

This is a show I’d watch with my 12 year old, and any child older than that. I’d use it as a tool to talk about the issues that happen in schools. I’d use it as an opening for difficult conversations. As for the issues of suicide, I’d use it for a reminder that she didn’t tell the people who cared about her most how much pain she was in. Her parents, her crush, they all would have supported her if they had known. We see how tortured the mom is by the fact she didn’t know about the pain her daughter was in and trying to learn and understand that pain. It’s important to turn to and be honest with those who we are closest with. Not to expect them to be able to take away the depression or the pain, but to help us access a network of resources and be a part of our mental health community.

For some great resources around suicide check out the American Foundation for Suicide Prevention: https://afsp.org/

Bullying on the Bus: Bellevue School Discrimination Case

On August 29, 2016, the Washington State Court of Appeals (Division I) issued a published decision involving claims against the Bellevue School District regarding the bullying and retaliation the school bus. The case itself involves some legal technicalities, specifically around jury instructions. Specifically the question was essentially whether the trial court erred in using the statutory definition in the harassment, bullying, and intimidation statutory statute in a jury instruction and whether that created an improper higher standard for the family to meet in their negligence suit.

Case

Allen & Jennifer Quynn, Appellants v. Bellevue School District, Respondent; Docket No. 73825-9; Opinion Author – Dwyer; joined by Becker and Trickey; Attorney for Appellants – Katherine George; Attorney for Respondents James Baker and Kenneth Masters. 

Basic Facts

Parents sued the Bellevue School District, claiming that the district had been negligent in failing to protect their daughter (while the child is referenced by her name in appeal, to increase her privacy, she will be referred to as “Daughter”) from harassment, intimidation, and bullying that she suffered while riding the school bus during her eighth grade year of middle school. A group of boys where allegedly targeting female students and Daughter reported an especially serious incident. She then became the focus of the boys’ aggression. There was name calling, groping, and having items thrown at her that resulted in welts.

She did not report the harassment, intimidation, and bullying that occurred against her after her report. The claim in the case is that the District knew or should have known that bullying was a likely result from the reporting and the school should have done more to ensure Daughter’s safety.

The Family challenged the decision with regard to a jury instruction regarding the duty of the school district and the definition of harassment, intimidation and bullying. They challenged based on (1) The district owed the child the highest duty of care, one applicable to common carriers, (2) inclusion of the definition of harassment, intimidation, and bullying unfairly limited the reach of their negligence claim, and (3) the instruction improperly articulated the duty and responsibility owed to Daughter by the district.

Appellate Court Opinion

The Court of Appeals agreed that school districts have a special relationship with students that gives rise to a duty of care to prevent a third party from causing physical injury to another.  This case cites McLeod v. Grant County School District No. 128, 42 Wn.2d 316, 255 P.2d 360 (1953), which held that because a child is compelled to attend school and has an involuntary relationship with the school district, the district has a duty “to anticipate dangers which may reasonably be anticipated, and to then take precautions to protect pupils in its custody from such dangers.”

In this case, the  Court of Appeals disagreed with the family that School Districts are required to provide the highest level of care on school buses. Instead the court held that the standard of care on a school bus, regarding the behavior of children, versus how a bus is driven, is the same as it would be anywhere else at school – reasonable care, “as it supervises the pupils within its custody, the district is required to exercise such care as a reasonably prudent person would exercise under the same or similar circumstances…The basic idea is that a school district has the power to control the conduct of its students while they are in school or engaged in school activities and with that power goes the responsibility of reasonable supervision.”

The Court of Appeals distinguished the heightened duty of a common carrier, which they linked to activities related to driving a bus from a lower level of duty, which they believed was more appropriate for behaviors of students on the bus. Basically the heightened duty of car is for driving functions, including making sure you use the stop sign so children can cross safely; reasonable care must be used with regard to the behavior of the children.

The next question involved a jury instruction that used the statutory language of the state harassment, intimidation and bullying law (“HIB Law”). In discussing the use of the statutory language in the instruction regarding negligence, the Court of Appeals noted that the HIB Law does not create a private right of action (meaning the HIB Law doesn’t allow parents to sue, so it’s not appropriate to use that definition when the suit doesn’t arise out of that law). The Court of Appeals found that by imposing the administrative definition of “harassment, intimidation, and bullying” the trial court improperly restricted the scope of the tort claim, which had the impact of requiring enhanced elements of proof in order to prevail.

Translation: the suit was regarding the school’s negligence. Instead of focusing on the question of whether the school was negligent, the jury was instructed to look at the HIB Law definition and determine whether the behavior of the bullying students reached a a level of physical harm, “substantially interfering with a student’s education” or “substantially disrupting the orderly operation of the school.”

The law around negligence not require physical harm. The court stated, “Indeed, to suggest that a bullied student cannot recover for emotional or psychological harm in the absence of actual physical injury runs completely counter to the analysis in McLeod.”

On top of the fact that physical harm is not required, proving that behavior had a “substantial” impact on a student or the school is a much higher burden than proving a school was negligent. The depth of the harm in a tort/negligence action is typically dealt with in determining the amount of damages (if any) and not whether the school was actually negligent.

The Court of Appeals said the error in this case required a new trial. As is all to often the case in cases involving schools, the litigation goes on longer than children are even in school. The incidents in this case occurred around December 2010. Now, in September 2016, the case is being sent down for another trial (that’s if the school district doesn’t appeal this ruling, if this ruling gets appealed and goes to the State Supreme Court and is heard and affirmed by the Washington State Supreme Court, resolution through a litigation process is likely still years off. The child was in the 8th grade when this incident occurred. Hopefully she’s in college now.

 

Washington State Supreme Court Case Re: School Negligence

The Washington State Supreme Court just issued a decision regarding school liability in a case where a 14 year female junior high student was raped by an 18 year male high school student who was also a registered sex offender. Approximately two years before, the male student, in the same school district, sexually assaulted a different junior high student. He was charged with indecent liberties and suspended for the rest of the school year. He was required to register as a level one sex offender and was not allowed contact with people two or more years younger than himself.

It is unclear to me whether the same principal was at the school when the original incident happened, but the principal at the time of second incident was notified by the Pierce County sheriff that the male student was registered sex offender. The record indicates that the principal did not inform the male student’s teachers, coaches, or relevant staff of the male student’s sex offender status. The evidence suggested that the principal did nothing to establish a safety plan and to help the male student avoid students two or more years younger than him.

The male student was allowed to participate in track and ran varsity for the Bethel High School varsity team. The high school and the junior high shared the track field. The male student was described as acting like a coach and mentor to the younger students on both schools’ teams. During practice a mutual friend introduced the targeted student and the aggressor. The very next day he invited her to lunch after school and she skipped track practice with the intention of going to Burger King for lunch, instead the male student took her to his home, under the pretense he had forgotten something, and then he raped the female student.

The female student told a friend and the friend told the school and the girl’s parent. The police were called and the male student was charged with third degree rape and plead guilty to second degree assault.

The trial court dismissed the case on summary judgment and the Supreme Court was addressing the questions: (1) Whether the school district’s responsibility to protect the student ended, and therefore its liability ended, when she left campus? And (2) Whether the alleged negligence, as a matter of law, could be the proximate cause of her injury?

A side note about proximate cause

Since the concept of “proximate cause” is central to the court’s analysis I want to elaborate on the issue for clarity for nonlawyers (the majority also did provided a quality description). This is a legal concept that involves two concepts – cause in fact, and legal cause. Cause in fact means that “but for” the A, B would not have happened. Legal cause is a policy determination about how far the consequences of a defendant’s acts should extend. There can be more than one proximate cause of an injury, and something else by a third party does not necessarily break the causal chain from the original negligence to final injury.

A couple of overly simplistic examples:

Proximate cause does not exist: D is texting and inadvertently lets her foot of the gas and rear ends E at a stop sign. D has a hummer and E has smart car, so there’s some damage, but everyone seems fine. A couple days later, E decides to go to E’s doctor because E has a sore neck that doesn’t seem to be going away. While coming back from the doctor, E is robbed. There is no proximate cause for D for the loss of money E sustained in the robbery because it is not a foreseeable consequence that someone could get robbed on the way back from a medical appointment.

Proximate cause exists: A shoots B and B gets in a car and drive to the hospital, and en route to the hospital gets hit by C and is B delayed in getting to the hospital by 25 minutes. A is still responsible for any injuries related to the gunshot, even if the delay possibly exacerbated the injury, because it is reasonably foreseeable that if you shoot someone, they may have a hard time getting to help. Proximate Cause Stops Existing: B gets fixed at the hospital and two weeks later is at a routine follow-up appointment and slips and falls at the doctor’s office. B breaks their arm in the fall. While on some level it is foreseeable that B would have follow-up care and that some people have accidents, as a policy the slip and fall is disconnected enough from the initial gun shot that as a legal matter we are likely to say that the A is not liable for injury related to slip and fall, even though, but for the initial gun shot, B would likely not have been at the doctor’s office.

Back to the School Discrimination Case

The issues in the school negligence case before the Washington State Supreme Court was about whether or not the fact that the incident occurred in the male students home was enough of another factor as to interrupt the school’s potential liability. In the dissent’s view, the school’s responsibility ended because a school cannot control the behavior of students in their homes. Fortunately that was the dissent and their view, that as a matter of law the school cannot be liable for its negligent acts if the injury occurs of school grounds or not at school activities. Instead the majority held that it was reasonably foreseeable and the school district may be liable for a foreseeable injury that is likely a proximate cause for the injury.

This decision doesn’t mean that a jury will find the school district was negligent. The school district will still have an opportunity to try to demonstrate that it was not essentially their fault that the 14 year old student was raped by an 18 year old student. Although, given that the then Superintendent of Public Instruction (OSPI) said that “the haphazard nature of Bethel’s approach to keeping its students safe from registered sex predators frankly boggles the imagination” and that the district “fell unconscionably below the accepted standard of care ‘to protect students from dangers that are known or should have been known,'” I don’t think the school district’s chance of success is very high.

This decision does say that a school district’s liability does not end at the schoolhouse doors (to adopt an expression about student rights). I expect that it will be a high threshold for school district liability, but a situation like this, where a school district has two types of knowledge, their own disciplinary history of the aggressor student and the report by the Sheriff’s office of the aggressor student’s sex offender registry status and the requirement not to be around students who were two years younger and that the day after he met this student at track practice he raped her make this a particularly compelling case. Even with the compelling facts, it was a narrow (5:4) decision.

Additional Case Details: 

N.L. v. Bethel Sch. Dist., Docket No. 91775-2, Counsel for Petitioner: Francis Stanley Floyd and John Armen Safarli at Floyd Pflueger & Ringer PS; Counsel for Respondent: Julie Anne Kays and Robert Connelly Jr at Connelly Law Offices.

Amicus briefs were filed by Gerald Moberg for Jerry Morberg & Associates on behalf of the Washington State School Directors Association, Association of Washington School Principals, and Washington Association of School Administrators. 

Amicus brief on Behalf of the Washington State Association for Justice Foundation was filed by Bryan Harnetiaux, Valerie Davis Mcomie, and Daniel Edward Huntingon (the court Supreme Court Information Sheet references a brief, but the brief was not found on Court website with the links to the briefs in the case).

Briefs in the case can be found on the Washington State Courts website under Supreme Court Petitions for Review

Mercer Island School District v. Office of the Superintendent of Public Instruction and parents of B.W.

On April 13, 2015, Division I issued its decision in the Mercer Island racial discrimination case that I previously wrote about here. Division I found that in the the administrative context (i.e., working with the school district and OSPI as opposed to filing a civil suit for damages in court), school districts that have actual or constructive notice (also known as the knew or should have known standard) of racial harassment, the school must take immediate and appropriate action to investigate or otherwise determine what occurred. It further requires that every investigation should be prompt, thorough, and impartial. Finally, it imposes upon the school the duty to take prompt and effective steps reasonably calculated to end harassment, eliminate any hostile environment and its effects, and prevent harassment from recurring.

The knew or should have known standard is a lower standard than the deliberate indifference standard. The court noted that even though the deliberate indifference standard creates a lower burden for a school district, to avoid administrative liability the school district still failed to meet the deliberate indifference test. The court likely went into this discussion to make sure that if the case was appealed to the State Supreme Court that the justices would not doubt how Division I would have ruled. This would mean if the State Supreme Court eventually reverses the knew or should have known standard, the overall holding of this case will not be reversed, because the court of appeals clearly demonstrated that they would have ruled the same way using the higher threshold.

Mercer Island School District, Res. V. N.W. And R.W., On Behalf Of B.w., Apps., Docket No. 71419-8-I, File Date: April 13, 2015; Opinion: Dwyer, Concurrence in part: Verellen; Counsel for Appellant: Ernest Saadiq Morris; Counsel for Respondent Parker a Howell and Jeffrey Ganson Counsel for OSPI and Amicus on behalf OSPI: Justin Kjolseth; Amicus on behalf of the ACLU: Sara Dunne and La Rond Baker

Oversimplified facts: A student targeted B.W., calling him names on multiple occasions. B.W. The targeted student’s grades dropped in that class. Part of the reason the grade dropped was that instead of writing on topic, he submitted two papers describing a random and violent accident happen to the aggressor student. Once the targeted student transferred out of the class, he began earning “A’s” and there were no more concerns about his behavior.

The court first focused on the deliberate indifference standard. In order to satisfy the deliberate indifference standard, the parents were required to establish: (1) racial discrimination; (2) knowledge by an appropriate person of the discrimination; (3) deliberate indifference by the district; and (4) discrimination that was sufficiently severe, pervasive, and objectively offensive that it can be said to have deprived the targeted student of access to the educational opportunities or benefits provided by the school.

Per the opinion, the school made several mistakes in dealing with this situation. Based on the deliberate indifference standard, these include:

  • The school district looked at the incidents involving the harassment separately instead of holistically. A school district acts with deliberate indifference when it responds to report of a discriminatory act that is clearly unreasonable in light of all of the known circumstances. 
  • The  school failed to properly investigate the claim of discrimination, which resulted in a clearly unreasonable response to the harassment. 
    • Failed to have compliance coordinator/officer and failure to update its policies to reflect the nondiscrimination law and OSPI’s May 2011 regulations.
    • Co-principals conducted inadequate investigations, failing to follow even their own out-of-date policy and doing the following:
      • The school and the District only interviewed two of the four students working on the group project where the racial harassment incidents occurred. The reasons for not interviewing additional students were not credible, specifically that an Apserger’s diagnosis would have made B.W. mishear the racial comment. The District didn’t provide any any evidence to support that conclusion that an Asperger’s diagnosis would make B.W. unable to accurately hear and report a racial epithet.
      • The school failed to discover basic information that contextualized B.W.’s complaint and gave further credence to B.W.’s allegations.
      • The school continued to informally investigate the report after the parents told him they wished to file a formal complaint, which would have been handled by the District as opposed to the school.
      • The District did not discuss B.W.’s essay. The teacher expressed concern that if the parents saw the essay, the parents would see it as confirming the racial harassment allegations.
    • Formal investigation by the school’s frequently used outside counsel was “fraught with inadequacies.”
      • Attorney investigator did not ask B.W. about the two essays, nor did she ask the teacher or co-principals to explain why they withheld the existence of the essays from the parents. The reports weren’t even included in the text of the report, but they were appended to the report, which is the first time the parents learned of the existence of one of the essays.
      • She did not account for the conspicuous discrepancy between B.W.’s grades in other classes and his grades in the class he shared with his harasser.
      • She did not address the ostensible connection between the discussion of Mexico and the racially charged comments between two students and B.W.
    • District failed to meaningfully and appropriately discipline the aggressor student. He was only told not to use race as the basis for angry comments and to sign an “anti-harassment contract.”
    • District refused to consider any scenario in which B.W. was not to blame for the conflict with the aggressor student, believing the conflict was due to B.W.’s social deficits. Apparently the school was frustrated because shortly after entering this school district, B.W.’s IEP was withdrawn at the parent’s request.

Having satisfied the first three prongs of the deliberate indifference test, the next question is whether it was sufficiently severe, pervasive and objectively offensive so that it can be said to have deprived B.W. of access to educational opportunities or benefits provided by the school. The court said the racial comments were beyond simple teasing and name-calling, the student made it clear that it wasn’t that his skin color made him different, but that it made him stupid. It was also done in the context of group setting, increasing the humiliation B.W. felt. B.W. was new to this school, he cried in public, he wrote disturbing essays, and he received uncharacteristically low grades in this class.

Based on that, the court held that harassment was sufficiently severe. Then the question is – did it interfere with equal access to educational opportunities or benefits? The “dropoff” in grades can provide “necessary evidence of a potential link between” a students diminished educational opportunities.” B.W. was also forced to remain in the class with the harassing student. Once B.W.’s parents transferred him out of the class, his grades immediately went up to match his high achievement in his other classes.

Lower Standard Analysis 

After stating that the facts support a finding that the school district failed to meet the deliberate indifference standard, the court turned its discussion to the question of whether in the administrative context deliberate indifference applies. The Office of Civil Rights (of the U.S. Department of Education, the administrative agency tasked with enforcement of the Federal counterparts to the Washington nondiscrimination laws) requires “upon receiving actual or constructive notice of racial harassment, the school ‘take immediate and appropriate action to investigate or otherwise determine what occurred.'” Then the  District is required to take “prompt and effective steps” to end the harassment.” Applying this more lenient standard the court found that “it is abundantly clear that the District’s response violated the EEOL.” (EEOL is the Equal Education Opportunity Law prohibits discrimination on a several protected classes, including race.)

Concurrence

Verellan concurs that the District failed to meet the deliberate indifference standard in addressing the discrimination. Verellan would not take the next step and determine whether the OCR know or should have known standard should have been applied.

Take Away Points

When parents complain to the school district, or the school district knew or should have known about discrimination based on any of the of the protected classes identified in RCW 28A.642.010:

  • race,
  • creed,
  • religion,
  • color,
  • national origin,
  • honorably discharged veteran or military status,
  • sexual orientation including gender expression or identity,
  • the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability.
  • Sex (is covered under the Sex Equity Law RCW 28A.640)

a school must take immediate and appropriate action to investigate or otherwise determine what has occurred. The investigation should be prompt, thorough, and impartial. If discrimination exists (including harassment) the District must take prompt and effective steps to end the harassment.

Missing Parts of the Opinion

Difference between Federal and State Laws

I would have liked to see a greater discussion on state vs. federal law and whether or not the deliberate indifference standard is truly required in state discrimination cases. The other case decided by Division I on this issues, S.S. v. Alexander, 143 Wn. App. 75, 177 P3d 742 (2008) also did not discuss this issue. The court mentioned Title IX and Title IX, which are interpreted consistently with each other. Both are based on the Congress’s power under the Spending Clause. Basically compliance with nondiscrimination rules are ensured because the federal government can place conditions on the receipt of federal funds. If schools take federal funding, they agree to abide by the rules, in “what amounts essentially to a contract between the Government and the recipient of funds.”  (Citing Gebser v. Lago Visto Indep. Sch. Dist. 524 U.W. 274, 286 (1998). 

There is no express right to a private suit in Title VI or Title IX, but the Supreme court has held that both statutes are enforceable through an implied right of action. The Supreme Court clarified that this private right of action is only available when a school acts with deliberate indifference. It would be inconsistent with the SPending Clause origins of Title IX and Title CI to impose damages liability unless a school authority with the power to remedy the discrimination had actual notice of and was deliberately indifferent to the conduct.

Despite discussing the above reasoning and pointing out that Title IX and Title VI require a deliberate indifference standard, the court doesn’t discuss the state statues and how they are not based on the Spending Clause. States get to tell schools what kind of nondiscriminatory standards they must comply with without basing it on any condition of funding. Plus our state statutes have express rights to pursue actions in civil courts. It’s not implied. Schools are on constructive notice that the must not discriminate and if they discriminate there may be administrative and judicial consequences. This distinction seems very important but it isn’t discussed. (See Pages 32-34 of the court’s decision for more discussion on this).

Multiple Identities 

The court likely limited its discussion to race because that was the issue before it, but since there was so much discussion about the targeted student’s Asperger’s diagnosis, I would have like to have the court point out that the failure of the school district to believe the targeted student because of his Asperger’s diagnosis was also a form of discrimination. Students who have multiple identities are often targeted for bullying because of the fact that they have multiple identities and the decision was remiss to spend so much time discussing the way the Apserger’s diagnosis interfered with the District’s handling of the case without stating that was also discriminatory.

Distinction between harassment, intimidation and bullying (HIB) and discrimination.

I was disappointed that there was no discussion about the difference between harassment, intimidation and bullying (“HIB”) and discrimination. There has been a lot more emphasis put in schools about HIB, there are state model policies and procedures. On Page 12, the court noted that the District’s November 4 decision was pursuant to the District’s Harassment, Intimidation, and Bullying policy. This flags for me that it was the wrong policy as it is in connection with a different law. The distinction between generalized HIB and HIB targeted at a student based on one of the protected classes identified in the state statue trigger different requirements for action. HIB targeted based on a protected class is likely going to be discrimination. Generalized HIB require individualized responses. HIB against a student because of a protected class requires schools to address the school atmosphere/climate and review their policies and procedures to make sure the school is not contributing to the issue of discrimination. HIB based on federally protected classes may overlap with federal nondiscrimination laws and may require a concurrent Title VI or Title IX investigation.

 

Pending Education Discrimination Case

On February 26, 2015, Division I heard Mercer Island School District v. N.W. and R.W. (Case no. 71419-8 – follow this link and type the case number to find all materials related to this case).

The rough outline of the case is that a student of color was targeted with racial comments by one main student and a couple of that students friends. The school district did respond, but there seems to be questions of whether the school district responded in a timely and appropriate manner.

When the parents complained about the students behavior and the school’s response, the school said there was no discrimination. The parents appealed to the school board and the school board denied the existence of discrimination. The parents then appealed to the Office of the Superintendent of Public Instruction (OSPI) and there was a hearing before an administrative law judge (ALJ). The ALJ found the school had acted in a discriminatory manner. The school district appealed in Superior Court and the Superior Court overturned on the ALJ’s major findings. The parents appealed the Superior Court decision to Division I.

At oral arguments, the judges honed in on what standard should be used in the administrative context when determining the liability of a school district. The School District argued for a high standard of “deliberate indifference” and the attorney for the parents, Ernest Saadiq Morris, noted that the Administrative Law Judge did use the deliberate indifference standard but that even under this standards the school district did not prevail with the ALJ and that based on administrative law, the ALJ findings should be upheld. In response to the specific question regarding the appropriate standard, the parents agreed that in the administrative context it should be the lower standard known or should have known standard is more appropriate, although I got the impression there was a concession that the higher standard should apply in a monetary damages setting.

In the guidance that exists on this question of the standard in the administrative context, both the Department of Justice and OSPI have stated that the known or should have known standard should apply and that schools are required to take prompt action to correct the discrimination and the effects of discrimination.

The deliberate indifference standard the school district advocated is based on the case law regarding when a individual files a suit against a school district for monetary damages. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), while the U.S. Supreme Court found a school district could be liable under Title IX for peer based sexual harassment, the standard was deliberate indifference – recipients response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.

Based on oral arguments – it seems that the main question the court will answer in its opinion is – in the administrative context can schools be held liable in the sense of requiring administrative fixes, improving policies and procedures, based on the known or should have known standard?

An important distinction that I did not feel was teased out is the reason that the court found reached the deliberate indifference holding. Title IX is considered a spending clause law, meaning that in order to receive federal funds a school district has to agree not to discriminate. However, the statutes at play here are state statutes, not federal statutes. States do not have to rely on spending clauses or anything else. They get to make rules within their borders and the rules have to be followed. The nondiscrimination laws, coupled with our laws against harassment, intimidation and bullying, make it clear that our legislature intends on schools having an affirmative duty to make sure that kids are safe in schools, even for peer harassment issues.

One of the Judges on the panel hearing this case was Judge Dwyer. Judge Drwyer wrote the majority opinion in one of the only state based discrimination appellate decision, a 2008 Title IX case by the name of S.S. v. Roe/University of Washington, 143 Wn. App. 75 (Wash.App. Div 1 2000)(case involved a student football player raping a student and the University’s poor response). In this context, Division I upheld the deliberate indifference standard. This was a suit for monetary damages and there was not a significant discussion on and Division I cited the Davis court that “funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school.”

Division I follows the deliberate indifference theory when looking at the University’s potential liability. Again, this was a Title IX case, not a case based on the state nondiscrimination or sex equity laws.

It will be interesting to see what the court decides and whether either of the parties will appeal the decision to our state supreme court.

High School teachers and coaches and sexual acts with students

A recent article in the Seattle Times, “Interlake High teacher charged in sex case with female student” involves an issue that Justice & Equality Legal Services seeks to address – sexual harassment, which includes sexual assault in the school setting. A teacher having sex with a student in the K-12 setting is considered a criminal act and so there are criminal penalties that exist.

In 2003, the Seattle Times did a series titled “Coaches who Prey, The Abuse of Girls and the System that Allows it.” The series Times found 159 coaches who were disciplined or fired because of sexual misconduct; yet 98 of them continued working with children. According to this series:

Even when school officials find wrongdoing, they often bow to pressure from the teachers union, handing out mild punishments or none at all.

Districts routinely keep investigations secret by failing to document them or by signing agreements with accused coaches promising not to tell. In fact, the Times found 29 coaches who were passed on to new school districts after being disciplined, pushed out or fired for sexual misconduct.

O’Hagan, Maurneen, and Christine Willmsen, “Misconduct often goes unpublished by districts.” The Seattle Times (December 15, 2003). 

The series prompted the 2004 state Legislature to require school districts to disclose information about sexual-misconduct allegations and forbid the districts from entering into agreements to conceal such information — a practice that had been all too common. “Tardy efforts at troubling coaches.” Seattle Times Editorial (July 12, 2006).

 

The investigative report of the Seattle Times did not create a sea change in the policies of school districts in Washington. An Oak Harbor Swim coach made 20/20 when he was convicted of rape in 2010. Over his 30-year career he molested at least a dozen girls.

Now there is the Interlake High School case.

At JELS, we believe that this can change, but it requires the diligence and a the same commitment we ask of our kids around not being bystanders to bullying. The Times 2003 series included an interesting list of “How Parents can spot trouble before it’s too late.”  The recommend be wary of full-body hugs, rides home alone, being aware of cards and gifts, sleepovers at the couches house, even babysitting can be used for grooming, long or repeated phone calls to and from the coach (in today’s age, that should include instant message, snapchats, burnotes, emails, etc.), Out-of-town trips where it is difficult for parents to come along, a child suddenly quitting or losing interest, and coaches who jump from team to team or district to district.

I would also take it a step further and note that if you see these things, whether or not is happening to your child, you have an ability to file a complaint. In fact, since sexual predators typically look for a target that has fewer safeguards, so a student-athlete who has a parent who has to work and misses most practices and/or games, would be an easier target than a student whose has a parent present at practices or games.  You can file a complaint. Title IX complaints specifically can be filed by community members.

If you are aware of allegations of sexual assault, for instance your child tells you that a friend was touched by a couch, contacting police is something else parents should feel empowered to do.

For some reason, with regard to sexual assault more than other issues, people worry about false reporting and the possibility of destroying someone’s reputation more than other offenses. Studies show false reporting is similar to other crimes, which is to say it is very low. In addition, there are protections that exist, police will have to do an investigation, schools will do an investigation. If they feel like there is not enough evidence no report gets filed.

The reality is that kids far more often than not, don’t tell adult figures when sexual assaults occur. There is self-blame, minimizing, shame, and fear, often fed by the perpetrator that when it is their word against the perpetrator that no one will believe the student over the coach. Or that even if they do, if the coach is well-liked in the community that people will chose not to believe the child.

This means, when you hear little things, and you wonder if it’s worth being concerned about, the answer is yes. Put the concern first and figure out if there is anything of substance behind the concern. Most coaches and teachers aren’t sexual predators. Most care passionately about students and would never want to see any harm come to the child. But those who are sexual predators have access to lots of children and are likely repeat offenders, or will be, especially when they realize that their behavior has minimal consequences.

Title IX, Harassment, Bullying, and Illegal Acts

In 2011, an important and still relevant article was written by Nan Stein, Ed.D. & Kelly A Mennemeier, B.A., “Addressing the Gendered Dimensions of Harassment and Bullying: What domestic and sexual violence advocates need to know.” The point of the article was that in the recent wave of concern over bullying, the concept of harassment is often folded into this. The problem with folding these two issues together is that there are federal bans on discrimination in education, bans that already include harassment.

The problem is, in the pressure over bullying, the stronger tool of the federal law prohibitions against discrimination are often ignored. Citing an Office of Civil Rights “Dear Colleague” letter to school districts across the country, the article points out:

The label (used by the School District) used to describe an incident (e.g., bullying, hazing, teasing) does not determine how a school is obligated to respond. Rather, the nature of the conduct itself must be assessed for civil rights implications. So, for example, if the abusive behavior is on the basis of race, color, national origin, sex, or disability, and creates a hostile environment, a school is obligated to respond in accordance with the applicable federal civil rights statutes and regulations enforced by OCR

The article discusses how state laws can vary. In Washington, our anti-bullying law contains an anti-harassment provision, making it even more likely that civil rights violations will be lumped into the general policy of bullying. For example, I was looking at the website for Bainbridge Island Schools. On that they reference a case, Webster v. Bainbridge Island School District, Kitsap County Sup. Ct. Cause No. 10-2-00346-2. In the Supplemental Letter to Verdict provided by the School District, it is clear that Title IX issues came up (the Title IX claim was dismissedby the court because it did not find, “deliberate indifference” but the special verdict form found the school district negligent.  In the thoughtful press release of November 6, 2013, the link provided by the school district is the report form for Harassment, Intimidation, and Bullying.

On the “For Families Directory” there is no information about Title IX. In fact, when doing a search for “Title IX” in the menu bar the search result returns, “There are no records.” A search for Title IX without quotes returns a few items, but nothing about Title IX. This is with a school district that has been found negligent and is attempting to remedy issues. While I only looked at Bainbridge Island for this particular post, I have no doubt that if I looked at other school districts it would be the exception that provides a clear explanation of when students behaviors violate state laws, when they violate federal laws, and when they are criminal behaviors.

Back to School Basics on Harassment & Bullying in K-12 Public Schools

School starts in Washington State for most public schools this week. In Washington, we have almost 300 school districts and they educate more than one million students by more than 51,000 classroom teachers.

In each school district there are multiple schools (often referred to within the school administration culture as buildings). Each district is supposed to create its own policy for dealing with issues around discrimination and bullying. The Office of the Superintendent of Public Instruction (OSPI), which is the agency that oversees K-12 public education in Washington, has established model policies and procedures (more details below).

Each school district is supposed to identify a compliance office, both for Title IX and for bullying, harassment, and discrimination (you are correct if you think there are overlaps between Title IX and harassment and bullying). The compliance officer is supposed to be the primary contact regarding the anti-harassment, intimidation, and bullying policy, and the person who receives copies of all complaints. They are responsible for insuring the implementation of the HIB policy and procedure. As of the writing of this post, the list of compliance officers available is for the 2013-14 academic year. Technically this information is supposed to be provided in materials that go out to parents, but the reality is that it is often not provided. In fact, all too often, compliance officers do not even know that they are compliance officers. Despite the existence of a compliance officer, all staff are responsible for receiving oral and written reports.

Each school district is required to have their own policy and their own set of procedures for how to deal with bullying and harassment. The district policy has to either mirror the State Model Policy and the State Model Procedures or somehow improve upon the state policies. The District Policies can be incredibly hard to find. One tip that can help, is that they often use the same naming convention as the Statewide Policy (Policy No. 3207) and Procedure (Procedure No. 3207P). This means they have to have mechanisms for reports of harassment and bullying to be reported. They must have procedures for investigating the reports, timelines for investigating and reporting – the model policy requires a timely response – the whole process of complaint, investigation (5 days), report (2 days after the report), and appeals (file within 5 days, response within five to ten days). The focus and commitment is on making sure that schools are safe learning environments.

State Model Policy Highlights: 

“Harassment, intimidation, or bullying” means any intentionally written message or image—including those that are electronically transmitted—verbal, or physical act, including but not limited to one shown to be motivated by race, color, religion, ancestry, national origin, gender, sexual orientation, including gender expression or identity, mental or physical disability or other distinguishing characteristics, when an act:

  • Physically harms a student or damages the student’s property.
  • Has the effect of substantially interfering with a student’s education.
  • Is so severe, persistent or pervasive that it creates an intimidating or threatening educational environment.
  • Has the effect of substantially disrupting the orderly operation of the school.

Nothing in this section requires the affected student to actually possess a characteristic that is a basis for the harassment, intimidation, or bullying.

State Model Procedure Highlights: 

  • Any school staff who observes, overhears, or otherwise witnesses harassment, intimidation, or bullying or to whom such actions have been reported must take prompt and appropriate action to stop the harassment and to prevent its re-occurrence.
  • Reports may be filed anonymously, confidentially, or non-confidentially, meaning the student may chose to disclose her/his identity.
  • Anonymous reporting is a situation where a someone witnesses issues within the school, but for a variety of reasons, including not wanting to become a target of the bullying, the student wants to do it anonymously. When a report is anonymous, the possible responses to the bullying will be enhanced monitoring of an area (i.e., a locker room during 5th period). Unless something is discovered through this enhanced monitoring no discipline will be done based on anonymous reporting.
  • Confidential reporting allows a student to keep their identity secret while discussing the specifics of an incident. Similarly to anonymous reporting, the school may respond by enhancing monitoring of problem areas. The school may also do safety planning with the student being harassed or bullied and seek to come up with more individualized responses, but no discipline will occur unless something is discovered through the enhanced monitoring.
  • Non-confidential reporting allows for the possibility of discipline to occur based on the reporting.  School districts still need to be descrete with the information, restricting the information to those who need to know.

State Model Policy Investigation Requirements (quoted from the Model Policy):

All reports of unresolved, severe, or persistent harassment, intimidation, or bullying will be investigated with resonable promptness. Any student may have a trusted adult with them throughout the report and investigation process.

a. Upon receipt of the Incident Reporting Form that alleges unresolved, severe, or persistent harassment, intimidation or bullying, the school or district designee will begin the investigation. If there is potential for clear and immediate physical harm to the complainant, the district will immediately contact law enforcement and inform the parent/guardian.

b. During the course of the investigation, the district will take reasonable measures to ensure  that no further incidents of harassment, intimidation, or bullying occur between the complainant and the alleged aggressor. If necessary, the district will implement a safety plan for the student(s) involved. The plan may include changing seating arrangements for the complainant and/or the alleged aggressor in the classroom, at lunch, or on the bus; identifying a staff member who will act as a safe person for the complainant; altering the alleged agressor’s schedule and access to the complainant, and other measures.

c. Within two (2) school days after receiving the Incident Reporting Form, the school designee will notify the families of the students involved that a complaint was received and direct the families to the district’s policy and procedure on harassment, intimidation, and bullying.
d. In rare cases, where after consultation with the student and appropriate staff (such as a psychologist, counselor, or social worker) the district has evidence that it would threaten the health and safety of the complainant or the alleged aggressor to involve his or her parent/guardian, the district may initially refrain from contacting the parent/guardian in its investigation of harassment, intimidation, and bullying. If professional school personnel suspect that a student is subject to abuse and neglect, they must follow district policy for reporting suspected cases to Child Protective Services.

e. The investigation shall include, at a minimum:

• An interview with the complainant.
• An interview with the alleged aggressor.
• A review of any previous complaints involving either the complainant or the alleged aggressor.
• Interviews with other students or staff members who may have knowledge of the alleged incident.

f. The principal or designee may determine that other steps must be taken before the investigation is complete.

g. The investigation will be completed as soon as practicable but generally no later than five (5) school days from the initial complaint or report. If more time is needed to complete an investigation, the district will provide the parent/guardian and/or the student with weekly updates.

h. No later than two (2) school days after the investigation has been completed and submitted to the compliance officer, the principal or designee shall respond in writing or in person to the parent/guardian of the complainant and the alleged aggressor stating:
• The results of the investigation.
• Whether the allegations were found to be factual.
• Whether there was a violation of policy.
• The process for the complainant to file an appeal if the complainant disagrees with results.

Appeal Process – must appeal to the district superintendent within 5 days of receiving the written decision. Can then appeal to the school board by filing a written notice to the secretary of the school board on or before the fifth school day following the superintendent’s decision. The appeal must be heard on or before the 10th school day after the notice of appeal is filed.

Seattle Schools Under Investigation for Title IX sexual violence issues

A July 2014, article in Al Jazeera discussed the problem of rape in high school and school obligations. noting that high schools are even worse than colleges in dealing with sexual assault.

Last month the Department of Education’s Office of Civil Rights agreed, making Seattle Public Schools, which covers all of Seattle, one of 23 elementary and secondary school districts currently under federal investigation for Title IX sexual violence issues. The number of colleges under investigation recently reached 64.

The article also noted that the vast majority of high schools did not understand that Title IX applied to them. This is a well-known problem to those of us in the field. While schools are required to have a Title IX coordinator and they do at least have someone in name, because they submit that information to OSPI (Office of the Superintendent of Public Instruction). The reality is that many Title IX coordinators do not even know that they are the Title IX coordinator. Of those that are aware, many of them have little understanding of the important role their position plays in making sure our children are safe.

It is this ignorance that makes it so important for parents to have a knowledgeable advocate on their side who can push the school to comply with the laws and create a safe space for students.