The Daily Record reviews RV’s appeal to the U.S. Court of Appeals for the Fourth Circuit:
In 4th Circuit, school boards seek broad immunity in disability-based bullying cases
State, national groups ask appellate court to uphold judge’s dismissal of Harford County case
By: Steve Lash Daily Record Legal Affairs Writer September 25, 2015
For the sake of their educational mission, school districts must be immune from liability for students’ bullying of their disabled peers except when administrators show “deliberate indifference to known harassment,” national and Maryland school board associations have told a federal appeals court.
“Taking into account the unique characteristics of K-12 schools, where students are still learning how to interact with their peers, school administrators must enjoy flexibility to make individual, student-based decisions,” the National School Boards Association and the Maryland Association of Boards of Education wrote in a brief filed Wednesday with the 4th U.S. Circuit Court of Appeals.
The groups commented as the 4th Circuit considers whether to revive a $1.2 million lawsuit brought by the mother and stepfather of a learning disabled teenager, named S.B. in court papers, who claims the Harford County school system failed to protect him from being ostracized and bullied from third grade through high school.
S.B’s parents claim the system’s negligent failure to act violated federal laws designed to protect the disabled, including Section 504 of the 1973 Rehabilitation Act and the 1990 Americans with Disabilities Act.
U.S. District Judge J. Frederick Motz dismissed the lawsuit in April, saying the school “attempted to address acts of harassment” and that federal law “does not entitle this court to second guess the school administration on every decision that it makes concerning bullying.”
The parents have appealed, arguing that the elementary-, middle- and high-school teachers were well aware but did little to stop what started as name calling and escalated to physical threats and violence against a disabled student.
The case — S.B. et al. v. Board of Education, No. 15-1474 — has not yet been scheduled for argument in the 4th Circuit.
Supreme Court cited
“S.B.’s rights pursuant to the ADA were violated when the board failed to implement federal and state guidelines by not having any policies and procedures in place specific to disabled students, like S.B., viz-a-viz investigating, remedying and preventing bullying,” the parents’ attorneys wrote in their appeal to the 4th Circuit.
“The failure to have such policies, procedures and practices caused injury to him,” added attorneys Tracy D. Rezvani and Martin J. Cirkiel. “The documents and testimony … clearly supported S.B.’s claims that he was bullied for the manifestations of his disabilities.”
Rezvani is with Rezvani Violin P.C. in Washington, D.C. Cirkiel is with Cirkiel & Associates P.C. in Round Rock, Texas.
The national and Maryland associations, writing in support of the Harford County board, cited the U.S. Supreme Court’s 1999 decision that school boards can be held liable for student-on-student sexual harassment only when the board shows deliberate indifference to the known harassment. That case, Davis v. Monroe County, Ga., Board of Education, addressed Title IX of the 1972 Education Amendments but not the disability rights statutes that followed.
The two associations contend, however, that the same strict legal standard of deliberate indifference should apply and not be expanded to include negligence inaction in the case of disabled students.
“This proposed expansion of Davis would discount years of precedent regarding deference to the decision-making of public officials generally and school officials in particular with respect to matters of school discipline and safety,” NSBA General Counsel Francisco M. Negron Jr. wrote in the associations’ friend-of-the-court brief. “Such a change would not only constrain the ability of educators to address the needs of individual students and to take into account the specific circumstances of the alleged harassment, but also needlessly expose school districts to unwarranted liability.”
According to the parents’ lawsuit, S.B. was small for his age, not athletic and had been diagnosed with attention deficit hyperactivity disorder, adjustment disorder, weak visual-spatial ability and nonverbal learning disability, all of which were listed in his Individualized Education Plan.
At Church Creek Elementary School, S.B. was frequently bullied, teased and called names, including “bucktooth,” “nerd” and “SpongeBob,” the lawsuit stated. At Aberdeen Middle School, S.B.’s peers escalated the name calling to “stupid,” “loser,” “low life” and “fag” and would knock him down, hit his books out of his hands, throw objects at him, threaten him and steal his belongings, the lawsuit added.
At Aberdeen High School, S.B. was punched and had rocks thrown at him without provocation, stated the lawsuit, which was filed when SB was a 16-year-old 11th grader in April 2013.
At each level, school leaders either witnessed the incidents or were informed of them by the parents or others but did little to stop it, the lawsuit added.
The parents claim the school’s inaction violated federal and state laws prohibiting discrimination against and harassment of the disabled.
The Harford County board has denied the allegations. Edmund J. O’Meally and Andrew G. Scott of Pessin Katz Law P.A. in Towson, the board’s lawyers, argued in their appellate brief that the “undisputed record” shows school officials responded to “each and every incident” when made aware.
“[E]ven if S.B. could establish that he was bullied and/or harassed based solely on his disability, he cannot establish, as he must, that he suffered an adverse educational impact because the record indisputably shows that he satisfactorily progressed from grade to grade, he graduated on time with the rest of his class and with more than the required number of credits while also successfully completing an internship program, he was never hospitalized or homebound, and he never engaged in self-inflicted physical violence or entertained suicide,” the board’s attorneys stated in the brief.