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

Turning the Bainbridge Island Alleged Teacher Abuse into a Learning Moment

The Bainbridge Island Police Department has arrested 26-year-old teacher Jessica Fuchs for illegal sexual conduct with a 16-year-old sophomore (based on the charges, the student was likely 16 when all incidents occurred). I blogged about this case here. Inside Bainbridge has several articles regarding the case and the arrest. Bainbridge Islander also has articles as does the Kitsap Sun.

According to Inside Bainbridge she was charged with Sexual Misconduct with a Minor in the 1st Degree, a class C felony (RCW 9A.44.093, makes it a crime for a teacher to have sex with a student who is at least 16 years old, when the teacher is at least 60 months older than the student, a Class C felony is a maximum of 5 years in prison); Communication with a Minor for Immoral Purposes, a gross misdemeanor (maximum of 364 days), and Tampering with a Witness, also a Class C felony.  If the student had been 15 when some of the incidents occurred other criminal laws would have also applied regarding rape of child or molestation of a child.

» Read more

10 Ways to Respond to Another School Shooting Tragedy

There was a shooting today, Friday, October 24, 2014 at a Marysville-Pilchuck High School (which is about 40 miles away from Downtown Seattle). The details will unfold over time.

At this moment, we know (which can always change as the investigation unfolds) that there are two people, including the student shooter, who were killed by the student shooter. The shooter was a freshman, he was apparently a popular kid and a homecoming prince. The other fatality was a female student. There have been some reports that they may have been cousins or that they were romantically involved. Based on what’s unfolding, it would not surprise me if it is a dating violence or family abuse of some kind.

It happened in the cafeteria at about 10:40 a.m. (about the time police got the call).

There were four additional people known to be injured, two girls and two boys. All of these children are in critical condition.

Barely a heartbeat ago, there was another school shooting, this one in early June 2014, at Seattle Pacific University. One college student was killed in that shooting and two other students were injured.

Over the next couple of days and months, we are going to learn about the student shooter. If this story follows the standard narrative, we will learn if he he was bullied, if he engaged in gender-based violence/dating violence, and/or if he had mental health issues.

We will search for reasons/excuses to understand, which in large part is about attempting to make sure we can feel safe, that feel like this won’t happen in our own community.

I hope we will take this moment to look at a bigger picture. To explore what we as a community need to do to make our world a better and safer place. Below is a list of things to do in the wake of this tragedy:

10. Vote: In Washington State our ballots have arrived or about to arrive. On this ballot are two initiatives about guns, I-591 –  (the bad one) vote no – prevents background checks stronger than federal law. I-594 – (the not enough, but every journey starts with a single step) vote yes – Universal Background Checks.

9. Get out the Vote Activities – To quote an image on Facebook, not voting is not an act of rebellion, it’s an act of submission. Make sure you vote, your friends vote, your co-workers vote, friends from synagogue, church, mosque, feminist critical thinking group, etc., vote. Vote for candidates that care about our schools- funding, bullying, and safety. Vote for candidates who believe that believe that the second amendment, like the first amendment can have time, place, and manner restrictions.

8. Push for better mental health resources – Many shootings or connected to mental health issues, dating violence, or bullying and harassment. There are not nearly enough resources readily and easily available for long-term care. These issues should be a funding priority and a priority for us to find innovative ways to deal with issues.

7. Push your school community to do better – It is not just the responsibility of the school to make sure our students are safe. As a community we must support our students and our schools. Make sure to be involved in your PTO, PTSA or any other parent-teach organization. We must be involved in awareness raising within these groups so that parents understand what behaviors are bullying or harassment and what to do when you learn your child is a victim, perpetrator, or bystander of any of these behaviors.

6. Challenge media – We live in a society where too many shortcuts are taken in media, news, online, etc. where sexist, racist, and other prejudicial just spills out onto t.v. Search for positive images of people of color, all women, religions, etc. Reject terms like “wife-beater” to describe a white-ribbed t-shirt. Reject slut-shaming. Seek out positive images and resources that provide a fuller depiction of our society.

5. Push your schools to do better – October is bullying prevention month. Make sure that you schools are doing activities to build empathy and interrupt bullying. Make sure you are aware of you schools policies. In Washington we have model policies for Bullying, Harassment, and Intimidation, if you cannot find your schools policy, look to the model policies, available on the Office of the Superintendent of Public Instruction’s website. Here’s a federal government resource: http://www.stopbullying.gov/

On top of bullying laws, we also have laws against discrimination on the State and Federal level. This means that schools are obligated to make sure that schools are safe and there is no harassment based on gender, race, sexual orientation, disability and more. Push to make sure your school has policies, including sexual harassment policies. These are often missing.

4. Push the government agencies involved in supervising our schools do better – On the federal level the Office for Civil Rights is in charge of oversight. In the last couple of years they have increased visibility of the issues. They need to continue the push and sustain in regardless of the elected officials.

On the state level, the Office of the Superintendent of Public Instruction (OSPI) is in charge of oversight and they are not doing a great job. The Govern’s office also has an education Ombuds office.

On the local level, the school board has the most power. They adopt/establish the policies and are key for setting the tone of the entire district. Go to school board meetings or at least review minutes and meetings. Submit comments. Make your voice heard.

3. Never stop believing – Never stop believing that the world can change and grow more positive. To quote Margaret Meade:

Never doubt that a small group of thoughtful, committed citizens can change the world; indeed it’s the only thing that ever has.

2. Be Brave – challenge yourself & those around you – Students learn from the caring adults in their lives. Watch your own comments – challenge your own internal racism, sexism, able-bodism, and push yourself to do better. Challenge any exaggerated comments you have about being angry enough to hurt or kill someone.

Do not be a bystander when you witness sexism, racism, able-bodism, etc. Model ways to resolve conflict for your children. Model the idea that we will not stand by when we can provide support.

1. Listen to the children in your life and advocate on their behalf when you hear about things that seem off. 

Remember amazing story a while back about a school administer who saw a child walk in with a gun. She talked and listened to the student and he gave up his gun.

Talking and listening, even at this moment where you would think all hope would be lost, matters. It can be the difference between life and dearth.

People, especially our youth, long to be heard and seen and understood. Take the time to listen and support them. Advocate for them. Get them help when they need it. You never know what kind of a difference just taking a little time to listen could have on someone’s life.