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Overview
Past commentaries in this series have
contained discussions of potential liability for student injury.
Over the past four years several commentaries have treated such
related topics as tort liability for student injury, bullying,
student discipline, student safety and security, search and
seizure, the role of school resource officers, and others.
Suffice it to say, as the 2006-2007 school year begins, and
students gather at school bus stops, ride school buses, make
their way to class down crowded school hallways, attend football
games, school dances, and other after school activities, this
subject area of education law is very appropriate, especially as
it involves potential liability issues that spring to life from
incidents where student-on-student harassment is alleged. The
purpose of this commentary is threefold. First, the beginning
sections are intended to define and draw a distinction between
student behavior that is the result of mere childishness and
immaturity, and student behavior that is abusive and harmful.
Second, potential legal and policy issues related to
student-on-student harassment will be explored. Finally,
suggestions for possible inclusion in local school
anti-harassment policies will be enumerated.
Student Behavior
As a general rule, student behavior is very
hard to predict. Kids do behave “like kids” and, more often than
not, kids do not consider the consequences of their behavior.
What is clear, however, is that school officials,
administrators, and classroom teachers are responsible
maintaining a safe, secure, educational environment so that
teachers can teach and students can learn. Moreover, educators
are not powerless to act when student behavior disrupts the
learning environment and/or represents a threat to staff and to
other students. A basic tenet of education law holds that school
officials possess considerable discretion in controlling student
behavior. Vacca and Bosher (2003)
Immature Behavior. The United
States Supreme Court itself has acknowledged that “[s]chool
children regularly interact in a dizzying array of immature
behaviors that would not be acceptable among adults.” As such,
“[d]amages under Title IX are not available for simple acts of
teasing, shoving and pushing, insulting and upsetting
gender-specific conduct.” Davis v Monroe City Board of
Education (1999) As one writer has summarized, “…Davis
can be viewed as the Supreme Court’s attempt at protecting
students from peer sexual harassment while simultaneously
protecting school districts from liability for less serious
infringements.” Ford (2005)
As stated above, immature (silly, childish)
behavior is not actionable under Title IX, 20 U.S.C 1681 (1972)
To refresh the reader regarding Title IX, the federal statute
states in relevant part that “no person in the United States
shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance….” The Supreme Court’s interpretation of Title IX
liability does not negate a need for diligent school
administrators and staff to pose the following questions: When
does a student-initiated act move beyond the bounds of mere
“child’s play?” When does a student-initiated act motivated by
“silliness” transform itself into bullying (repeated
negative behaviors) or hazing? When does a
student-initiated act become an assault or a battery,
or a threat of harm and criminal behavior becomes an
issue? When do the acts of one student (or group of students)
pose a significant risk to the physical and/or emotional health
and wellbeing of another student (or group of students)? When
does the behavior of one student (or group of students) subject
another student (or group of students) to discrimination? When
does the behavior of one student (or group of students) actually
keep another student (or students) from access to and enjoying
the benefits of the school’s educational program (academic
courses, extracurricular activities, social [peer]
interactions)?
Abusive Behavior: What is it?
“Abusive behavior” and “childish, immature (kids will be kids)
behavior” are not the same. Two types or categories of
abusive behavior exist; the most recognized involves
physical abuse, i.e., one person physically
interacting with another person resulting in harm to that
person. Assault and battery are examples of such
abusive acts. The second type involves the non-physical
actions of one person that cause harm to another person. Often
characterized as assaultive speech, the second form of
abusive behavior involves abusive language, i.e.,
expressive language (spoken, written, gestures, pictures) that
cause actual harm or place a person in imminent fear of harm.
Vacca and Bosher (2003) This latter form of abusive behavior
more often than not creates a “hostile environment” and
manifests itself in student-on-student situations as
harassment (both sexual and non-sexual). In recent years
student-on-student (peer) harassment has been a serious
problem at all levels of education.
Potential Liability: The Deliberate
Indifference Standard
More than a decade ago, the United States
Court of Appeals for the Fifth Circuit opined that school
officials may be held liable if nothing is done to prevent or
correct a situation where dangerously aggressive and disruptive
behavior exist. Doe v Taylor (5th Cir. 1994)
Three years later, the Fifth Circuit held that liability will
attach “[w]here a school official knows, or willfully avoids
knowing about the possibility of serious harm to a student,
fails to take appropriate action, and the student is harmed.”
Walton v Alexander (5th Cir. 1997) That same
year, a federal district court in new Hampshire held, that
school officials may be held liable for student (peer) sexual
harassment “if (1) school officials knew or should have known of
the matter but failed to correct the problem, (2) a special
relationship existed to protect students from harm, and (3) the
harassment was severe and pervasive.” Doe v Oyster River
(D.N.H. 1997)
In 1999, the United States Supreme Court
articulated the judicial standard to apply in deciding whether
or not liability for student-on-student harassment can be
brought home to school officials. In an opinion written by
Justice O’Connor and referencing Restatement of Torts
(Second), the high court held that school officials may be
liable for student (peer) harassment where they are
“deliberately indifferent to known acts of student-on-student
sexual harassment,” and where “the student harasser is under the
school’s disciplinary authority….” Davis v Monroe City
Board of Education (1999) In subsequent clarifications of
the Davis deliberate indifference (callous
disregard, or callous indifference, or gross negligence)
standard, legal scholars have emphasized that to prevail
plaintiff parties must show that school officials had actual
notice (i.e., actual knowledge) of the
circumstances and yet acted deliberately indifferent to the
matter. Alexander and Alexander (2005)
Current Issues and Recent Case Law
Examples
In recent years, federal and state courts
have been busy applying the “deliberate indifference” standard
in a broad range of situations where peer student harassment is
at the heart of the controversy. What follow are some case law
examples.
Two years ago, a federal district court in
New York State heard a case involving an elementary school
student whose parents claimed that their son was the victim of
verbal and physical abuse solely because of his Chinese
ancestry. The parents were not successful in their suit because
they could not show that school officials had been deliberately
indifferent to the name calling and physical acts of the accused
students. Yap v Oceanside Union Free School District
(E.D.N.Y 2004)
In 2005 a group of high school female
students and their parents went into a federal district court in
Montana seeking damages against local school officials. Without
their knowledge the female students had been videotaped in their
school locker room and bathroom by a group of male students.
Plaintiffs were unsuccessful because they could not show that
school officials knew (had actual knowledge) or were willfully
blind to the videotaping. To put it another way, how could
school officials do something about the situation if they did
not know what was going on. Harry A. v Duncan (D.Mont.
2005)
That same year, a male student in a local
public school district in Kansas went into a federal district
court where he alleged that school officials were deliberately
indifferent to his harassment (teasing, name calling, gestures)
by other students. To determine liability, said the court, it
must be shown that: (1) school officials knew of but had been
deliberately indifferent to the matter, (2) the harassment was
severe, pervasive, and objectively hostile, and (3) the acts of
the other students effectively deprived the complaining student
of educational opportunities. Theno v Tonganoxie
Unified School District No 464 (D.Kan. 2005)
This past year, a student in New Jersey
claimed that he was the victim of student-on-student sexual
harassment based on sexual orientation. More specifically he
alleged in a state court that he suffered repeated verbal and
physical harassment at the hands of other students because of
his perceived sexual orientation. Applying New Jersey law and
using a deliberate indifference analysis the court was persuaded
that the school district was liable for student peer sexual
harassment based on sexual orientation. L.W. v Toms River
Regional Schools Board of Education (N.J. 2006)
Williams v Board of Regents (11th
Cir. 2006) involved public higher education. In this Title IX
case a female student at the University of Georgia alleged that
she was raped in a dormitory room by male athletes. More
specifically she claimed, among other things, that University
officials did not adequately respond to her report of the
incident, and that they failed to implement existing student
sexual harassment procedures. Convinced that school officials
reacted with deliberate indifference, the appellate court
remanded the case back to the district court for further
proceedings on the Title IX claim.
Policy Implications
In today’s fast paced, media/technology
driven society young people are constantly exposed in a variety
of ways (music, movies, television programming, advertising, the
internet) to words, phrases, and actions once deemed
inappropriate for kids. Ironically, many terms of common
parlance among a growing number of today’s students were once
considered crude, rude, insulting, and derogatory. At the same
time, a growing number of young people are easily offended and
resort to violent means to settle disputes. Because a poor
choice of words plus the potential to provoke a violent response
creates a volatile formula, and student peer harassment in
schools does exist, school officials and staff must be proactive
in heading off trouble before it escalates.
What follow are some suggestions to
consider in drafting school system policy in a effort to balance
the rights of students (e.g., free expression) with the
prerogatives of school administrators and staff to maintain
safe, secure, and disruption-free schools. School board
anti-harassment policy must make it clear that:
- Students are expected to act in a
civil and respectful manner when interacting with fellow
students.
- Harassment (both physical and verbal),
intimidation, taunting, bullying, hazing, stalking, and
other like forms of abusive behavior will not be tolerated
in school, on school busses, and at school sponsored
activities and events (on- and off-school grounds).
- Profanity, lewd and obscene language,
hateful words and phrases, and crude gestures will not be
tolerated in school, on school busses, and at school
sponsored activities and events (on- and off-school
grounds).
- Threats (including threats made using
e-mail and other electronic means) made by students against
fellow students will not be tolerated and those who make
threats will be expelled from school and where appropriate
threat-makers will be charged and prosecuted under the law.
- Students are encouraged to directly
report all suspected incidents of student-on-student
harassment and other forms of abusive behavior to their
building principal.
- Building principals shall immediately
and fully investigate all incidents of student harassment
and other forms of abusive behavior directly reported to
them.
- Building principals have complete
authority to immediately suspend from school and from school
sponsored activities any student who has engaged in
harassment and/or other forms of abusive behavior directed
toward fellow students, pending the results of an
investigation into the allegations.
- Parents will be fully informed of and
immediately involved in the school system’s anti-harassment
process.
It is important that school board policies
and procedures be thoroughly explained to all administrators,
staff (professional staff, coaches, and support personnel),
parents, and students. Finally, all administrators and staff
must be provided with up-to-date training on how to spot and
deal with incidents of student peer harassment and other forms
of student-on-student abusive behavior.
Resources Cited
Alexander, Kern, and Alexander, M. David,
AMERICAN PUBLIC SCHOOL LAW, Sixth Edition (Thompson/West 2005)
Davis v Monroe City Board of Education, 526
U.S. 629, 119 S.Ct. 1661 (1999)
Doe v Oyster River, 992 F.Supp. 467 (D.N.H.
1997)
Doe v Taylor, 15 F.3d 443 (5th
Cir. 1994), cert. denied, 115 S.Ct. 70 (1994)
Education Amendments of 1972, Title IX, 20
U.S.C. 1681 (1972)
Ford, Aaron D., “Student-to-Student Sexual
Harassment.” In Kenneth E. Lane, et al., THE PRINCIPAL’S LEGAL
HANDBOOK, Third Edition (ELA 2005)
Harry A. v Duncan, 351 F.Supp.2d 1060 (D.Mont.
2005)
L.W. v Toms River Regional Schools Board of
Education, 886 A.2d 1090 (N.J. Super. App. Div. 2005)
Theno v Tonganoxie Unified School District,
377 F.Supp.2d 952 (D.Kan2005)
Vacca, Richard S., and Bosher, William C.,
Jr., LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS,
Sixth Edition (Lexis/Nexis 2003), and 2006 SUPPLEMENT (Lexis/Nexis
2006)
Williams v Board of Regents, 441 F.3d 1287
(11th Cir. 2006)
Yap v Oceanside Union Free School District,
303 F.Supp.2d 284 (E.D.N.Y. 2004)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
