DOE Letter Rallies Against Bullying, Hints At Potential For School Liability

In this post, I wanted to expand upon my previous article on bullying by exploring bullying victim lawsuits and looking into whether a school may be liable if a student is bullied.

It is rather timely considering the U.S. Department of Education just issued a “Dear Colleague letter”to school districts, colleges and universities across the nation yesterday warning them that they have may have a responsibility to step in and protect students from bullying under federal civil rights laws. The letter places the school districts and universities on notice that the failure to act could result in liability for violation of these civil rights laws.

So, what is the current law regarding bullying victim lawsuits?

Bullying Victim Lawsuits

Bullying victim lawsuits have become more prevalent.

  • In Cincinnati, Ohio, a student’s mother sued the school district, principal and assistant principal for failing to protect her from another student who threatened her in the classroom, the lunchroom, and at school sporting events, and hit her in the face at a non-school sanctioned function.
  • Parents of a Maryland teen sued the school district for ten million dollars after their son experienced post traumatic stress disorder resulting from bullying by five teens in his school.
  • Parents of a teen from Beaufort, S.C., sued an elite all girls boarding school in Connecticut after her doctors suggested she take a leave of absence due to the psychological issues she suffered from bullies at the school.

South Carolina Anti-Bullying Laws

In December 2006, the South Carolina General Assembly passed a law to prevent bullying, known as “The Safe School Climate Act.” The goal of the law is to put policies and procedures in place to prevent school bullying, intimidation or harassment.

While it is important to have safe guards in place to prevent school bullying, what is the school district’s liability if, in fact, a student is injured or taunted by a bully, or even worse, commits suicide? While The Safe School Climate Act does not create a private right of action for a victim of student bullying, it does not preempt a student from pursuing a civil action under another law.

South Carolina Case Law

A school’s liability in bullying victim lawsuits is unchartered territory for many courts.

In Stevenson ex rel Stevenson v. Martin Co. Board of Ed., 3 Fed. Appx. 25, (4th Cir. 2001), an unpublished Fourth Circuit decision, a father brought an action under 42 U.S.C. § 1983 against the school board and school district employees of his son’s middle school after he was forced to withdraw his son from the school due to repeated assaults by his fellow classmates. The Fourth Circuit held in that case that the Father did not state a claim for relief under § 1983. Id. at 35.

Reviewing the federal case law, it is clear that bullying victims face major hurdles when bringing claims for violations of the Due Process Clause under the Fourteenth Amendment of the U.S. Constitution, 42 U.S.C. § 1983 or Title IX against the school board. While the Fourth Circuit Court of Appeals has yet to find a school liable for any of these violations, it is plausible.

The South Carolina state courts, however, have concluded that a public school can be held liable for acts of gross negligence.

In Doe v. Greenville Co. School Dist., 375 S.C. 63, 651 S.E. 2d 305 (2007), the S.C. Supreme Court reversed the trial court’s ruling dismissing the Plaintiffs’ claim for negligent supervision pursuant to S.C. R. Civ. P. 12(b)(6). In that case, the parents of a fourteen-year-old student sued the school district for negligent supervision when a substitute teacher engaged in sexual activity with their daughter. Id. at 66, 306. The Court noted that although the South Carolina Tort Claims Act (TCA) limits liability of a governmental entity for “a loss resulting from ‘any responsibility or duty including but not limited to supervision, protection, control, confinement or custody of any student,’” the statute creates an exception to the limitation “‘where the responsibility or duty is exercised in a grossly negligent manner.’” Id. at 71, 309 (quoting S.C. Code Ann. § 15-78-40 (2005)). The Court further stated that gross negligence has been defined as “the failure to exercise slight care” or “the intentional conscious failure to do something which it is incumbent upon one to do or  the doing of a thing intentionally that one out not to do.” Id. at 71, 309 (further citations and quotations omitted). Thus, the Court held that the Plaintiffs adequately stated a claim for negligent supervision by alleging the Defendant “acted with gross negligence failing to protect their daughter from the known danger of the substitute teacher’s inappropriate interest in young girls.” Id. at 71, 309.

Though a private school is not a governmental entity as defined under the TCA, if the school meets the definition of “charitable organization” under S.C. Code § 33-56-170, etseq., it may be able to limit its liability for suits against it for injuries and/or death caused by its employees. A charitable organization is defined as: “any organization, institution, association, society, or corporation which is exempt from taxation pursuant to Section 501(c)(3) or 501(d) of Title 26 of the United States Code, as amended.” Id. If a private school meets this definition, then under § 33-56-180, the private school’s liability shall not exceed the limitations on liability imposed in the South Carolina Tort Claims Act.

Regardless of whether a school may be held liable for student bullying and/or suicide, this is a serious issue that needs to be addressed in schools across America, both public and private. It is important for schools to protect the students and to take precautionary measures to ensure that our children are safe.

If your child has been a victim of bullying, visit http://stopbullyingnow.hrsa.gov to learn what you can do to prevent it from happening again.

If you need legal advice, we recommend that you seek the advice of a licensed attorney.  If you have any questions about this blog and/or need to talk with an attorney, contact us today for a free, no cost consultation to discuss your legal rights. At Strom Law Firm, LLC, our attorneys provide comprehensive legal services designed to protect your rights and your interests.  Our lawyers are licensed in South Carolina, New York, and Georgia.

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