They call them “bullycide” cases. That’s technically wrong. The term “bullycide” should refer to someone killing the bully, but in these cases, it’s not the bully who dies, but rather someone who was targeted by a bully. The cases are hard to read and harder for school personnel to deal with. Nevertheless, there is a notable increase in court cases alleging that a student committed suicide as the result of pervasive, unchecked bullying. David’s Law, passed by our legislature last year, was a response to this.
Now we have a reported “bullycide” court case from a small district in Texas. The case is worth discussing because it highlights the many legal theories that are used in these cases, and how the courts address them. So let’s review the sad case of J.R.
On May 6, 2014, J.R. took his life. In the subsequent lawsuit, the parent alleged that J.R. was the target of bullying for over five years—much of it having to do with his weight. The suit alleged that the boy had “very obvious and large female like breasts.” In middle school, the boy stood 5’4” and weighed 260 pounds. He suffered from depression and was taking medication for this.
The suit alleged numerous theories as to why the school district should be held liable for the boy’s death. The school district responded with motions to dismiss the case, with arguments specific to each legal theory. This is typical of these cases. In ruling on the motions to dismiss, the court is required to assume—just for the sake of the motion—that the facts as alleged in the suit are all true. Moreover, the court is required to view those alleged facts “in the light most favorable” to the plaintiff. In other words, the plaintiff, at this stage of the proceedings, gets every benefit of the doubt. After all, the court does not want to dismiss a case early on if there is a possibility that the case has merit. So with that in mind, let’s review how the court addressed the various issues.
*Exhaustion. The court held that the parents did not have to “exhaust” their administrative appeals by seeking a special education due process hearing because doing so would have been “futile,” due to the student’s death.
*Race discrimination. The suit alleged that the bullying was based on the student’s race—he was of Hispanic and Anglo descent. The court made short shrift of this argument, noting that the allegations of this were “conclusory” with no specific facts to support them. The racial discrimination claim was dismissed.
*Disability discrimination. The court dismissed the claims of disability discrimination under Section 504. The court noted 5th Circuit precedent for the notion that a 504 claim cannot be based on negligence. There must be evidence of the school’s refusal to accommodate. Here, there were hints and suggestions that the student might have a disability, but there was never a specific request from the parent. Nor was there any specific diagnosis provided to the school. The court’s analysis illustrates the difference between “child find” under IDEA and “child find” under 504. Under IDEA there is a duty to be proactive when clear signs of a possible disability are evident. Not so under 504, which is more about responding to requests for accommodation.
*Constitutional claims. The court dismissed claims of constitutional violations. There was no indication that the school policy had caused any injury, or that there was a violation of “due process” or “equal protection.” Again, claims along these lines were deemed “conclusory” and lacking factual support.
*Sex discrimination. The one claim in the suit that survived the motion to dismiss was the Title IX claim of sex discrimination. The court noted that the suit alleged a long campaign of bullying and harassment, almost daily, based “in part because of his female-like appearance.” The suit alleged that classmates “actions and name-calling questioned his sexuality and manhood.” The court’s holding has clear implications for gay, lesbian and transgender students:
Plaintiff has sufficiently alleged a consistent pattern of bullying, harassment, and teasing against J.R. by his classmates because of his failure to adhere to traditional gender stereotypes and his female-like appearance… (Emphasis added).
Of course the case has a long way to go. The parent will have to prove the truth of the allegations in the case, including the alleged “deliberate indifference” of school officials. But at this early stage, the court has held that the claim of sex discrimination under Title IX may have merit and should proceed.
As we often emphasize here, those legal theories are for the lawyers to worry about. As educators, your main focus is on creating a healthy climate on every school campus, free of the bullying or harassment of any student for any reason. Nothing can be done to bring J.R. back to us, but perhaps with a strong and proactive program addressing the way kids treat each other, we can prevent future tragedies.
Toolbox Training is designed to help you do just that. It’s a full day program providing ten “tools” that comply with the law and facilitate appropriate services for each student. If you are interested in Toolbox training, let me know.
The case of Reed v. Kerens ISD was decided by the federal court for the Northern District of Texas on June 6, 2017. We found it at 70 IDELR 40 and at 2017 WL 2463275.
DAWG BONE: YOU HAVE TO BE PROACTIVE ABOUT PREVENTING BULLYING—NOT JUST REACTIVE.