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Bullying and Cyberbullying Prompts Tragedy and Lawsuits
Bullying lawsuits are being filed by parents of bullied children to hold school boards, parents of bullies, and school districts liable for severe injuries, suicide or death sustain by their bullied child.
Bullying Lawsuit Makes National News
Mallery a 12-year-olde New Jersey girl was tormented by classmates for months, including harassment through texts and social media websites like Snapchat and Instagram. Her tormentors repeatedly bombarded her cell phone with denigrating comments, such as telling her she was a loser with no friends. Her bullies even asked, “why don’t you kill yourself.” Her parents told NBC New York that they repeatedly reported the bullying to school officials, but the parents did not see adequate steps taken to stop the abuse. Mallery’s mom and dad even pleaded with the parents of one of the tormentors who seemed to dismiss Mallery’s parents’ concerns. The day after the meeting between the parents, Mallery tragically took her own life and proved her parents’ fears were justified.
Since the incident, the parents have served the school district and parents of the harassing students with notice of their intent to file a lawsuit. This tragic story has become far too familiar as the bullying and cyberbullying crisis has played out among schoolchildren and teens across the U.S.
Our law firm represents clients against all forms of bullying whether physical, verbal, or social. The definition of bullying varies from state to state, but the term generally refers to physical, mental or verbal acts by a student to intimidate, harass, or otherwise harm another student. Premises liability law provides a legal basis for students to seek compensation for bullying behavior against victims because property owners have a legal duty to keep non-trespassers safe on the premises. Because children are the primary users of school premises, school boards and school districts have a heightened duty of care to create a safe learning environment for schoolchildren.
Forms of Harassing and Bullying Against School Children
While bullying conduct does not amount to a new practice, harassing acts that might have been tolerated in prior times are no longer acceptable. Bullying often occurs when a child is harassed and a school or parents fail to come to the victim’s aid or to take control and prevent future physical, mental, or social abuse or mistreatment. Although a single perpetrator might be responsible for the offending behavior, the harsh, repetitive type of bullying carried out by multiple torementors frequently leads to serious consequences that might include suicide.
Although there is no legal definition of bullying under federal law, mental health professionals typically define the act as “physical or verbal abuse, repeated over time, and involving a power imbalance.” The U.S. Department of Health and Human Services (HHS) has settled on a similar definition of school bullying, which is “unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance” that is repetitive or poses the possibility of repetition. Bullying activity does not have to occur during school hours or on school premises, but these details can affect the legal rights of the victim to prevail in a lawsuit.
The reach and pervasive nature of bullies have changed with the evolution of cyberbullying. Advances in electronic communications have given rise to “cyberbullying,” which involves the use of the internet or mobile phones to send or post harmful content. The pervasive nature and damaging impact of cyberbullying have multiple dimensions. The perpetrator can inflict abuse 24/7 through multiple means that include email, text messaging, and an array of social media websites, such as Facebook, Twitter, Instagram, Snapchat, Musicly, Pinterest, Tumblr, YouTube, and many more. The ability to incessantly torment a victim on multiple forums the clock makes social media a particularly damaging weapon in a bully’s hands.
Other aspects of cyberbullying also make this form of harassment particularly insidious. The derogatory comments, images, or other content posted online can be permanent or at least extremely difficult to remove. Social media sites also allow a coalition of bullies to work together exponentially increasing the harm inflicted.
Although hazing often is associated with fraternities and sororities on college campuses, this form of harassing behavior also occurs to initiates of sports teams and clubs for middle school and high school students. Hazing activities often are dismissed as harmless pranks, but these rituals can cause significant harm. When the wrongful acts occur as part of school sanctioned activities or on school grounds, the school district or school board might be liable if school officials knew or should have known of the hazing conduct and failed to take appropriate remedial measures.
Teasing refers to conduct or comments designed to make fun of or provoke the target. While teasing can become bullying, there are several factors that differentiate bullying from day-to-day teasing. Teasing can rise to the level of bullying behavior if it includes these four factors:
- Power imbalance between the parties (this can social hierarchy or physical strength)
- Aggressive behavior
- Actual repetitiveness of conduct or possibility of repetition
When teasing or conflict between schoolchildren or teenagers meets these criteria, the conduct might constitute bullying justify a bullying lawsuit
Determining Liability for Bullying
Although bullying can have a devastating impact on their victims, there is a range of challenges that must be overcome to pursue a lawsuit based on bullying of your child. The requirements for success in pursuing a lawsuit will depend on the impact on the victim, the nature of the bullying conduct, the identity of the victim, and the party against whom the lawsuit is filed.
Lawsuits Against School Districts and School Boards - Sovereign Immunity
While there is no anti-bullying law at the federal level, state anti-bullying laws that have been adopted in virtually every state, generally do not provide a private cause of action. If parents want to file a lawsuit against a school district or school board for failing to preserve a safe learning environment for their child or physical harm suffered at that hands of a bully, they must overcome the obstacles posed by the sovereign immunity of government entities. “Sovereign immunity” refers to the common law right of government entities to be insulated against lawsuits for harm caused by the negligence of public employees.
Federal and state laws both contain waivers of this immunity, but a plaintiff seeking damages for personal injury or wrongful death must often comply with shorter filing deadlines and special requirements. Under most of these laws, often referred to as “tort claims acts,” formal written notice must be served on the public entity (school board or school district) prior to filing a lawsuit. The time limit will vary depending on the law of the particular jurisdiction, but the window to provide notice can be as short as three months. The notice also must contain specific information and might need to be served on a specific party to be effective, so you should seek immediate legal advice if you want to preserve your child’s rights to a legal claim. Another reason to seek prompt legal advice is that calculation of this deadline can be complicated depending on the situation. Failure to comply with this timing requirement will permanently waive a party’s right to pursue a claim against the government in most situations.
What Must be Proven to Pursue a Claim Against a School District or School Board in a Bullying Lawsuit?
Although almost every state has anti-bullying laws, these statutes generally do not contain a provision granting a private cause of action. This means that filing in state court usually will require pursuing common law causes of action or state/federal anti-discrimination laws. While state anti-bullying laws do not usually create a right for individuals to bring a cause of action, a knowledge of state and local laws and relevant school policies will be important when pursuing a lawsuit.
Federal and State Discrimination and Harassment Laws
While bullying lawsuits can be brought under federal and state discrimination and sexual harassment laws, the right to pursue a legal claim under these statutes is determined by whether the victim is a member of a protected class. Examples of federal laws that might be used to pursue damages for bullying include:
- Title II of the Americans with Disability Act of 1990 if the bullying is based on the plaintiff’s disability
- Title IX of the Education Amendments of 1972 which bar discrimination based on sex
- Title VII of the Civil Rights Act of 1964 banning discrimination on the basis of color, national origin, or race
- Section 504 of the Americans with Disability Act of 1973 which prohibits discrimination based on the basis of a disability
When a student is subject to a hostile environment because of bullying, the school district or school board might be in violation of these civil rights statutes if the school ignores the behavior or fails to take adequate remedial action to stop the harassment. Although none of these statutes specifically address harassment based on sexual orientation, this type of bullying liability might be pursued if the wrongful conduct is based on non-compliance with traditional gender-based stereotypes.
Bullying victims also can sometimes pursue a claim under 42 USC Section 1983 for violation of a schoolchild’s right to substantive due process under the Due Process Clause or under the Fourteenth Amendment’s Equal Protection Clause. The U.S. Constitution also extends protection to victims of bullying based on religion. As a general rule, these federal statutes will only provide a basis for a bullying lawsuit if the offending conduct occurred on school grounds, the bus, or a school sponsored event. Since the laws generally apply to entities receiving federal funding, the claims also typically must be brought against school boards and school districts rather than individuals school officials.
States often have their own discrimination and harassment laws that might be drafted to include a broader number of protected classes. These state and local laws might provide another legal basis for a personal injury victim or family of a wrongful death victim to pursue a lawsuit for damages.
Pursuing a Lawsuit Based on State Common Law Theories of Liability
While state laws will differ, common law tort theories can provide another avenue to pursuing a lawsuit against a school district for bullying. “Common law” refers to law based on court precedent as opposed to the enactment of legislation. There are situations where filing a lawsuit based on state common law theories provides an advantage, such as cases where the bullying victim is not the member of a “protected” class. The legal standard to prevail in a state law case also often will be less stringent than under federal civil rights laws. While the standard under federal civil rights statutes for holding a school district liable might be “deliberate indifference” mere “negligence” might be sufficient under state law. Some potential common law causes of action include:
- Negligent Infliction of Emotional Distress
- Intentional Infliction of Emotional Distress
- Failure to Supervise: While negligent conduct can be sufficient to prevail under this theory in some jurisdictions, the failure to supervise must be willful and wanton in other jurisdictions.
Procedural and Substantive Hurdles to Pursuing a Bullying Lawsuit
Whether pursuing a lawsuit for bullying-related conduct in state or federal court, representation by a personal injury or wrongful death attorney with experience suing school districts becomes important. Although lawsuits to hold school districts and school boards accountable for peer-on-peer bullying have been successful, a positive outcome requires effective navigation of procedural and substantive hurdles, such as:
Aside from the notice and procedureal requirements of tort claims acts when suing a public entity, school boards and school districts will only be liable for bullying behavior of other students if they were given notice. Schools are held accountable for harm based on conduct that school officials “know or should know” is occurring. This principle makes sense since the liability of the school would be based on failing to adequately intervene to stop or prevent bullying. If notice is not provided to allow the school to take action, the district or board will use their lack of awareness of the inappropriate conduct as a defense.
Knowledge of State Anti-Bullying Laws & School Policies
Although state anti-bullying laws generally do not authorize a private right of action, these laws and school policies must be thoroughly researched before pursuing a lawsuit. The definition of bullying is relegated to local school districts in some states. Further, the procedures for alerting school authorities of the inappropriate conduct should be articulated within the school policies. A thorough familiarity with the laws in your jurisdiction and school policies will be necessary to determine what constitutes impermissible conduct and the procedures the school was required to observe to remedy the situation.
Selection of the Proper Forum and Law
A claim in federal court under the Americans with Disability Act (ADA) might be a successful strategy for a student tormented socially and mentally because she has had a leg amputated. However, a failure to supervise claim in state court might be a more promising option for a person who is not the member of an “identified” group under federal or state civil rights laws. If a student is bullied because he or she is “gay,” a state civil rights law that includes sexual orientation as a protected class might be a superior option to a federal lawsuit under Title IX.
Lack of Physical Harm
Bullying lawsuits will be more likely to succeed when based on physical rather than social or verbal harassment. Further, some states will not permit a tort recovery unless a physical injury can be proven. A pattern of verbal or social harassment over a prolonged period can justify a recovery by strengthening a claim of physical harm. Evidence to meet this requirement might be shown through depression, declining grades, anxiety, and other forms of psychological harm.
Frequently Asked Questions Regarding Bullying Lawsuits
What constitutes unlawful bullying under state and federal law?
There is no uniformly adopted definition of bullying under state or federal statutes. While many mental health professionals and the HHS have similar definitions of bullying, the term is not defined by federal statutes. Although states might differ in their precise definition of the term, some state anti-bullying laws authorize local school boards to define the term.
What should I do if I suspect my child is being bullied?
While parents first priority must be to determine whether their child is being harassed and to stop the conduct, notifying school officials and the offending child’s parents might be sufficient to get the bullying to cease. If the school does not take adequate steps and comply with its own policies regarding bullying, the school board or school district might be liable. However, you need to provide notice to ensure school officials know or should know about the bullying.
Can I pursue a lawsuit against the parents of the child who is bullying my child?
Parents can be liable if their child’s bullying causes harm to another child, but you might be able to resolve the situation simply by making the other parent aware of the situation. If the parents dismiss your concerns and fail to intervene, this will strengthen your position if you must pursue a lawsuit related to harm caused by the other child.
Can I simply call my child’s teacher if my child is being bullied?
When you notify the school that your child is a victim of bullying, you should provide notice in writing. Although alerting your child’s teacher might be prudent, the school will have specific procedures for handling bullying claims. You should make sure you understand the school’s policies for responding to and investigating bullying complaints. If you need to file a lawsuit against the school, you will have to provide notice of your claim to the school prior to commencing a lawsuit. The policies of the school will indicate who you must notify of your intent to pursue a claim and specify the information that must be included. It is important that you understand this procedure and comply with the requirements to avoid forfeiting your right to sue the school district or school board.
Do I need an attorney to sue the school if my concerns about my child being bullied are not handled adequately?
The procedural complications and substantive law involved in pursuing a lawsuit for personal injury or wrongful death based on bullying behavior can be complex and confusing. An experienced school law attorney who handles bullying claims will be able to steer you through these potential obstacles.
Why Choose Parker Waichman LLP
When bullying victims seek to hold their tormentors, school authorities, and parents who fail to intervene accountable for the harm they inflict, many legal requirements and practical obstacles must be navigated. Our bullying lawsuit attorneys at Parker Waichman LLP represents parents and students across the country who have been harmed by all forms of bullying conduct. Our national law firm is firmly committed to striving to deliver the exemplary legal services expected of preeminent law firms. Our personal injury and wrongful death attorneys have received recognition for tenaciously pursuing the maximum compensation for our clients. A few of the accolades bestowed on our law firm include:
- Recognition as “Preeminent Lawyers” by Respected Martindale-Hubbell Publication
- Near Perfect Rating 9.8 by AVVO (Out of 10.0) (Evaluates All U.S. Law Firms)
- Listed in Best Lawyers Based on Extensive Peer Review
- Awarded Martindale-Hubbell Highest “AV” Peer Rating
- Recipient of Lawdragon Top Rating “5 Dragons”
Speak to a School Bullying Attorney Today
The experienced attorneys at the national law firm of Parker Waichman LLP are committed to protecting school children from harmful physical, social, and emotional bullying that cause serious harm.
We hold school districts, school boards, and parents that turn a blind eye to such conduct accountable for their failure to act, so call us today at 1-800-YOURLAWYER (1-800-968-7529) or fill out our online form to schedule a free case evaluation.