Tag Archives: Bullying

You say the student was “upset” about the bullying, but that this is “irrelevant”? How can that be?

Here is an eye-catching line in a recent recommendation from a Texas magistrate:

Critically, whether K.S. was upset by the conduct of fellow students is not relevant to the Court’s determination of whether the alleged harassment is actionable under Title IX.  “The standard is not subjective; instead, it is whether the harassment was severe, pervasive, and OBJECTIVELY unreasonable.”  Emphasis in the original.

We should point out right away that the student being “upset” IS relevant to principals and assistant principals who are trying to prevent bullying.  So don’t take this Title IX legal standard and apply it to the day-to-day operations of your school.  If a student is harassed, picked on, bullied, and is “upset” about it, school officials need to take action. Investigate; take corrective action; take steps designed to end the harassment, prevent its recurrence and repair any damage.

Leave that “it’s irrelevant” argument to your lawyer, if it should end up in court.  This one did, and the magistrate judge has recommended that the court dismiss the case against the district. The student’s lawyers did not present sufficient evidence to show that the case deserved to go to a trial.  The recommendation notes that no reasonable jury could conclude that the student was deprived of educational opportunities, or that the district was “deliberately indifferent.”  The student’s grades went down a bit, but he was passing his classes.  He had quite a few absences, but most of those were related to medical problems. He spent some time in ISS and DAEP—but that was due to his misconduct, rather than harassment by others.  There were plenty of reports of the boy being picked on…but the district investigated them and took appropriate action.

In short, this is yet another sad case of middle school kids behaving badly.  Fortunately, the law does not impose legal liability on school districts when that happens. The burden of proof is far more demanding, as we can see from the observation that the student being upset was not even relevant.

The case of Thomas v. Northwest ISD is still pending in the Eastern District of Texas. The recommendation of the magistrate judge was made on December 1, 2015. We found it at 2015 WL 9450853.


Let’s add this to the list of “things not to say” about bullying.

J.R. was a student in New York City who was picked on by the other kids. The court case tells us that J.R. had “major depressive disorder, panic disorder with agoraphobia, and borderline personality disorder,” and that he was bullied based on his race, gender and “perceived femininity.”

It was pretty bad for J.R.  He was hospitalized more than once due to depression and suicidal ideation.  The lawsuit filed by J.R. and his parents alleges that the New York City schools should be held legally liable for the bullying of J.R.

Parents have a high burden of proof in a case like that.  They have to prove that the bullying was really bad; that it was based on disability (Section 504 cases) or gender (Title IX); that the district knew about it; and that the district was “deliberately indifferent.”

It’s that last part that presents the highest hurdle. School officials make mistakes, but are rarely “deliberately indifferent.”  Thus most of these cases get tossed out of court for lack of evidence of any “deliberate indifference.”

This case is not being tossed out—largely because of the principal’s response to the student’s request for a transfer to a different bus. The court cited this as the type of evidence that a jury might rely on to conclude that the school was “deliberately indifferent.” Here’s how the court put it:

For example, in response to complaints about the harassment endured by J.R. on the bus, the QCPC principal did not intervene; instead, she told Plaintiffs that the bullying was likely to continue given the violent nature of the student body.  Although the “deliberate indifference” standard does not require that teachers and school administrators successfully prevent or eradicate all bullying behavior, surely some effort to discourage that conduct and announce its unacceptability is required.

So let’s learn from New York’s mistakes.  If a student requests a transfer to another bus, or another classroom, due to bullying, let’s not respond with: “Well, we can do that. But you know these kids today. The bullying is going to continue.”

Let’s say something better than that. The case is J.R. v. New York City Department of
, decided by the federal district court for the Eastern District of New York on August 20, 2015.  We found it at 66 IDELR 32.



“The kids are calling me ‘retard, chickenhead, twitch, tic-toc and spaz.’  Isn’t this bullying????”

Jamie and Troy Nevills alleged that their son was subjected to name calling and worse while he was attending school in Mart ISD. The boy attended MISD schools from kindergarten until 7th grade, when the parents pulled him out and filed a lawsuit alleging that the school district ignored student-to-student harassment based on disability.

The student was never identified by the district as having a disability under IDEA or Section 504 but that did not prevent the lawsuit. The parents alleged that the school knew very well that their son had a form of Tourette Syndrome which produced verbal and facial tics, and made it difficult for him to speak or concentrate.

In a case involving student-to-student harassment, the parent has to prove five things in order to pin liability on the school district.  In this case, they were: 1) that the student has a disability; 2) that he was harassed based on the disability; 3) that the harassment was severe or pervasive to the point that it altered the condition of his education and created an abusive educational environment; 4) that the school knew about the harassment; and 5) that the school was deliberately indifferent to the harassment.

In many cases like this, the school district will concede one or more of those five facts. For example, if the student has been identified under IDEA or Section 504, there is not much point in contesting Factor Number One—the school itself has identified the student as having a disability.  In this case, however, the district disputed every one of those five critical facts.  The boy had not been identified or served under IDEA or Section 504 and the school denied knowledge of any condition that would qualify as a “disability.” The school denied that the student was harassed based on his disability, and denied that anything “severe” or “pervasive” occurred.

If the school district can conclusively defeat the parent on any one of the five factors, the court will dismiss the case. The parent has to prove all five—so the failure of any one of them is fatal.

Here, MISD filed a Motion for Summary Judgment.  Among other things, the Motion asserted that no reasonable jury could ever conclude that the school’s response to this situation was “deliberately indifferent.”  The 5th Circuit honed in on that one factor, and issued a decision in favor of the district.

That summary makes the whole process sound simple, but it is not. The court ruled in favor of the district because of the record keeping, the documentation, and the affidavits of school personnel that showed how the school responded to the instances cited by the parents. Much of the parents’ case was based on allegations that the school did not punish students who picked on their son.  The record, however, showed that the school responded to the instances it knew about.  Moreover, the principal brought in an outside organization to do some training of the students about bullying.

The 5th Circuit cited its earlier decision in Estate of Lance v. Lewisville ISD, 743 F.3d 982 (5th Cir. 2014) for the notion that public schools are not expected to “purge” themselves of all manner of student-to-student harassment.  Courts are expected to grant “a high level of deference” to school officials.

Judges do not want to be assistant principals.  Nor does the law encourage judicial micromanagement of student discipline cases.  That’s why you see phrases like “high level of deference.”  But keep in mind that the officials in Mart ISD were deferred to because the court could see that they were attentive to what was happening in their schools. They took action. They investigated. They trained.  They documented.

The case is Nevills v. Mart ISD, decided by the 5th Circuit on April 21, 2015.