Bullying and Disabilities Harassment

1. Bullying and Disabilities Harassment • Finding a Viable Cause of Action Ilene Young, Esquire Doylestown, PA www.ileneyoung.com

2. Peer on Peer Disabilities Harassment: Definition • Intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student's participation in or receipt of benefits, services, or opportunities in the institution's program.

3. IDEA & Bullying • The IDEA requires that each child covered by the statute be provided with a Free Appropriate Public Education (FAPE) in the least restrictive environment. • Claim: • Child cannot receive benefit from his education in an environment of harassment and bullying • Bullying is exacerbating the child’s disability, causing behavioral problems and, in some cases, triggering emotional disturbance, interfering with progress, which in turn results in a denial of FAPE.

4. IDEA Remedies • Compensatory education equivalent to the denial of FAPE • An order for development and implementation of an appropriate IEP prospectively, with needed services and placement • Tuition reimbursement for parents’ unilateral placement at an appropriate private school.

5. IDEA Bullying Caselaw • Shore Regional High Sch. Bd. of Ed. v P.S., 381 F.3d 194 (3d Cir., 2004) • Established that the ongoing bullying and harassment of a student with disabilities can constitute a denial of FAPE. • Parents expert established that no appropriate intervention could alleviate the difficulties the child would face if forced to the same group of bullies who had tormented him for the past several years. • Judge Alito’s opinion repeats the Parents’ experts opinion that bullying does not go away on its own.

6. IDEA: getting away from the bullies • Need for a Specialized environment: The claim that a certain type of environment is a necessary component of FAPE has been upheld in the context of student’s need for a therapeutic and stress free environment. • Right to safety: Safety, in and of itself, is not necessarily a component of FAPE.

7. Section 504 of the Rehabilitation Act • No otherwise qualified individual with a disability in the United States, . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .29 U.S.C. § 794(a)

8. Threshold Elements: §504 • Plaintiff has a disability for purposes of the Rehabilitation Act that he is ‘otherwise qualified’ for the benefit that has been denied. • Plaintiff has been denied the benefits solely by reason of his disability, and • The benefit is part of a program or activity receiving Federal financial assistance.

9. § 504 & § 1983 damages • Must be aware of the effect of A.W. v. Jersey City Public Schools, 486 F. 3d 791 (3rd Cir. 2007) in abrogating the right to damages for educationally based 504 claims asserted through 1983. • Lauren P. ex rel v Wissahickon Sch. Dist., 2007 W L 1810671 (E.D. Pa.) in dicta, apparently lets stand the viability of a 1983 damage action under Section 504.

10. Caselaw: §504 • A. W. v Marlborough Co., 25 F Supp 2d 27 (1998) • Plaintiffs must plead intentional discrimination in order to recover compensatory damages under the Rehabilitation Act and the ADA • Intentional discrimination may be inferred from deliberate indifference to the strong likelihood that a violation of federally protected rights will result from a policy or custom.

11. Section 504 retaliation: Protections against Retaliation contained in: 34 C.F.R. § 100.7(e). To plead, Plaintiffs must show • (1) that they engaged in a protected activity, • (2) that defendants' retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights, and • (3) that there was a causal connection between the protected activity and the retaliatory action Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006)

12. Retaliation“Causal connection” Plaintiff must prove either • (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or • (2) a pattern of antagonism coupled with timing to establish a causal link. • In the absence of that proof, the plaintiff must show that from the "evidence gleaned from the record as a whole" the trier of the fact should infer causation. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000).

13. Threshold issues Exhaustion of Administrative Remedies • IDEA claims must first be brought in administrative hearing and appeal, unless bringing the IDEA claim through the administrative process would be futile. • Definition of futility may no longer be static due to the effect of A.W.’s ruling on the availability of damages. • Where analogous relief is sought under Section 504 and IDEA, administration exhaustion is required.

14. Threshold issues Sovereign immunity • The 11th Amendment to the U.S. Constitution, which has been interpreted to prohibit citizens from suing their own states for money damages unless their state consents: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State “

15. Limitations to Immunity • Federal courts may enjoin state officials from violating federal law under Ex parte Young (1908). • States acceptance of participation in Federally funded program schemes may abrogate immunity to the extent that they have been provided with notice.

16. Political Subdivisions Torts Claim Act 42 Pa.C.S. § 8541  (2007)  • Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” • 8 enumerated exceptions under the Torts Claims act, §8542, including operation of motor vehicles, care and control of animals, streets, real property, personal property, trees, traffic controls. • Narrowly construed: Child who exited school bus and waived across lane, by the driver, only to be run down by traffic, did not meet any exception. White v Sch. Dist. Of Phila., (1997) 553 Pa. 214.

17. Willful Misconduct • An exception to immunity, applies to acts undertaken within the scope of employment. More than negligence, equivalent to an intentional tort. There is some suggestion of a higher standard for teachers. See Subashi v Commonwealth, 713 A.2d 1177 (Commw. 1998) • You must plead the underlying intentional tort when pleading this exception to immunity.

18. 42 USC 1983 • Section 1983 requires that an individual allege that the defendant deprived him of a federal right while acting “under the color” of state law. This is a derivative claim that must be based upon a federal civil rights claim. • Section 1983 claims are brought against a government agency – under color of state law – or a private party whose actions constitute “state action”. • Imposes no culpability independent of that required by the federal right at issue.

19. IDEA and 504 damages through Section1983 • A 1983 action for damages upon violation of statutory rights under IDEA no longer lies in the 3rd circuit. Similarly, to the extent that the claims under Section 504 overlay the same claims under IDEA, 1983 does not provide an alternative remedy. Lauren P. ex rel v Wissahickon School Dist, 2007 WL 1810671 (ED PA)

20. Preliminary considerations: • Statute of limitations: because 1983 claims are derivative, the applicable statute of limitations will be the one applicable to the underlying analogous cause of action. • For cases blending federal claims with tort counts, the Notice of Claim requirements must be followed. • Federal interest: Statutory or constitutional • All individuals have a constitutional liberty interest in personal bodily security under the 14th Amendment. • Does not require a qualifying class.

21. Constitutional claims/exceptions to immunity • Constitutional Duties: • Generally, the Constitution is a charter of negative liberties and requires no affirmative action on the part of the state to protect a private citizen from the acts of other private citizens. • DeShaney v Winnebago County Dept. of Social Services, 489 U.S. 189 (1989) • Any exceptions to this rule will be narrowly and strictly limited. • Court has recognized several distinct exceptions from which an affirmative duty to protect one citizen from another will arise.

22. Exception one: Special Relationship DeShaney v Winnebago County, 489 U.S.189 (1989) • Generally, the state must take a person into “its custody and hold() him there against his will”… before an affirmative duty arises to protect him from harms inflicted by private parties. • This has been interpreted to mean that a State’s affirmative deprivation of an individual’s freedom to act on his own behalf confers a duty to protect. • Arose from cases of prisoner on prisoner harm, or involuntary commitment.

23. Special Relationship and School Harassment D.R. v Middle Bucks Technical High School • Facts: • Female plaintiffs were sexually assaulted as many as four times per week for six months in a darkroom and a bathroom that were a part of a graphic arts classroom. • School officials knew the graphics arts classroom was out of control, and the teacher had witnessed repeated lewd acts in the classroom and student dragging another into the bathroom.(D.R. at 1378, Sloviter,J, dissenting)

24. D.R. continued • Held: • Neither compulsory school laws, nor the minority of the students, nor the in loco parentis position of the school district rises to the level of restraint on liberty such as would impose a duty upon the state to protect students from other students based upon the special relationship exception. • Parents free to remove child subject “only” to truancy laws • Child – at least once past the age of beginners – is free to leave school grounds • Parent may choose private school • Parents of special education students have ‘even more control’ because they must approve IEPs

25. DR continued • The right to impose or maintain discipline does not impose a duty to do so, only provides the school district with the authority to do so if it chooses. • School Districts do not have a duty to protect their students from student on student harm. • Judge Sloviter’s dissent characterizes this as an unworkable legal fiction, with the cited “liberties” of minor students and parents wholly dependant upon educational background and socio-economic status.

26. Recent 3rd circuit case law • Allen v. Susquehanna Twp. Sch. Dist., 2007 U.S. App. LEXIS 9394 (MD PA 2007) • Facts: • Student in foster home eloped from his school program, was struck and killed by a car. • IEP was satisfactory • School personnel, when notified that student had left, conducted a thorough search for him. • No evidence that District impeded him taking care of himself by physically restraining him

27. Allen, continued • Held: No special relationship • Interpreting DR: “In D.R. by L.R., we held that where parents remain the primary caretakers of students and where students are not deprived of access to sources of help, there is no special relationship between the school and students, despite the state's compulsory school attendance laws.”

28. Other circuits • The majority of circuits have held that the School District owes no responsibility or duty under federal law for the protection of minors in public schools from actions of others. The 2nd circuit has found some limited duty of districts to the protection of their minor charge.

29. Parental responsibilities Given the state of the law, what are parent’s duties to protect their children? • Parents may be held legally responsible for leaving children with negligent caregivers. • Liable for neglect charges • Liable for monetary damages • Glomb v Glomb: parents responsible for brain injuries to child caused by babysitter, based upon knowledge that she may have slapped child in the past. • Should parent be advised to attend school with the child or send a responsible adult?

30. Exception two: State Created Danger • 3rd Circuit Test: The state may be held liable for damage to plaintiff caused by a private individual if: • the harm ultimately caused was foreseeable and fairly direct; • the state actor acted in willful disregard for the rights/safety of the plaintiff (otherwise sometimes stated as “shocks the contemporary conscience”); • there existed some relationship between the state and the plaintiff; and, • the state actors used their authority to create an opportunity that otherwise would not have existed for harm to occur. • Kneippv Tedder, 95 F. 3d 1199, 1208 (3rd Cir 1998)

31. State Created Danger: 3rd Circuit, cont. • Failure to act v. Affirmative act: Failure to act must constitute deliberate indifference. • Deliberate indifference requires one to be charged with knowledge of Plaintiff’s condition. • The dispositive factor is “whether the state has in some way placed the plaintiff in a dangerous position that was foreseeable.” • L.C v William Penn School District, 2005 U.S. Dist. LEXIS 21658 (ED PA 2005) citing Kneipp v Tedder, 96 F. 3d 1199 ( 3rd Cir 1996)

32. The latest word on shocking the contemporary conscience Sanford v Stiles (3rd Cir 2006)456 F.3d 298; 2006 U.S. App. LEXIS 19428 following County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) • Facts: Parents of student who committed suicide brought 1983 action against the school district, alleging substantive due process claim based upon the state created danger exception to immunity. Allegation was that the guidance counselor, who had been pre-warned about the suicidal threats of the student, increased his risk of suicide. • Held: Compliant did not state a claim upon which relief could be granted.

33. New State Created Danger Analysis • The court states that the standard for “shock(ing) the contemporary conscience” is difficult to discern and addresses the various past rulings to arrive at one standard. • The level of culpability required to shock the conscience increases as the time state actors have to deliberate decreases. • “In a "hyperpressurized environment," an intent to cause harm is usually required. • (I)n cases where deliberation is possible and officials have the time to make "unhurried judgments," deliberate indifference is sufficient. “ Sanford, at 25 • In between, where a state actor must act in a matter of hours or minutes (“hurried deliberation”), defendants must disregard a great risk of harm. Id, at 26

34. Circuits vary • Different circuits have different tests for state created danger: • In general, ignoring a pattern of harassment has not been held to satisfy the state-created danger theory. • Even when school personnel join in the harassment, courts generally find that this does not constitute enough of a state act to ‘create’ the danger, though it may enhance it. Snelling v Fall Mountain, 2001 WL 276975 (2001 D.N.H.)

35. School disciplining victim • Where the school threatens disciplinary action against victim, the state created danger theory has allowed liability in limited cases. (cases following Stoneking II) • Carroll K v Fayette County Bd. Of Educ.,19 F. Supp.2d 618 (S.D.W.Va. 1998) • Facts: Student subject to repeated violent assaults by male students was warned, by her principal, that she would be punished if she tried to defend herself because females had no right to defend themselves. Eventually she suffered a severe spinal injury and lost sight in one eye when she was swung into a steel pole while a teacher looked on and did nothing to intervene. The District court, following 3rd circuit precedent found that the state had “aided and fostered the dangerous environment”

36. Equal Protection • The Equal Protection Clause prohibits states from “depriving any person within its jurisdiction the equal protection of its laws and “essentially directs that all persons similarly situated be treated alike.” • Lawrence v Texas, 539 U.S. 558 (2003) • Plaintiff must allege that similarly situated persons were treated differently (the “class of one” allegation). • Gagliardi v Village of Pawling, 18 F. 3d 188 (2d Cir 1994) • This has been interpreted to require differing treatment than that received by other disabled peers.

37. Finding a defendant: Supervisor liability • A supervisor is not vicariously liable for actions of subordinate employees of the governmental unit. • Rizzo v Goode, 423 U.S. 362 (1976) • Action or failure to act by the supervisor must be alleged. • A direct link must be pleaded and established between the individual held to account and the constitutional violation: • The Plaintiff must show a plan or policy • Express or otherwise • Mere assertions of custom are insufficient. • “However, it is sufficient to show that a discriminatory practice ..was so persistent or widespread as to constitute a custom or usage with the force of law.” • Showing authorization or approval, knowledge and acquiescence by the supervisory authority.

38. Supervisory Liability in Harassment Caselaw • Stoneking v Bradford Area School Dist., 882 F.2d 720, 1989 US. App LEXIS 15771(3rd Cir. Pa. 1989), cert den 493 U.S. 1044, 110 S.Ct. 840 (1990) • Facts: Female student, raped by her teacher, was warned by the principal that she would not be believed, not to tell her parents, and was forced to apologize for making the accusation. District was aware of many other claims of sexual abuse by the same teacher. • Holding: Defendants, principal and vice-principal, were not entitled to qualified immunity because there was evidence that they encouraged a climate which allowed students to be sexually abused. Superintendent was entitled to immunity.

39. Stoneking, cont. • Element of knowledge of rights: The courts have "adopted a broad view of what constitutes an established right of which a reasonable person would have known, which requires courts to undertake an inquiry into the general legal principles governing analogous factual situations, if any, and a subsequent determination whether the official should have related this established law to the situation at issue. • Right to be free from sexual molestation a well-established constitutional right

40. Stoneking, cont. • Element of deliberate indifference: A municipality may be liable …where policymakers made a deliberate choice to follow a course of action from among various alternatives, and the policy chosen reflects deliberate indifference to the constitutional rights of the city's inhabitants.

41. Pleading ‘Failure to train’ • Plaintiffs must plead: • that the injury in question was caused by a municipal policy and the policy includes a failure to train or supervise. There are two aspects to this claim: • The failure to train amounted to a deliberate indifference to the rights of persons with whom the municipal actor comes in contact, and • The municipality’s policy actually caused the injury. • Failure to train may establish deliberate indifference where the need for more or different training is obvious and inadequacy very likely to result in violation of constitutional rights.

42. Failure to train/deliberate indifference • There is a three pronged test for Failure to Train claims establishing deliberate indifference: • municipal policymakers know that employees would confront a particular situation; • the situation involves a difficult choice or a history of employees mishandling such situations and, • the wrong choice by an employee will frequently cause deprivation of constitutional rights. • Deliberate indifference through failure to train may also be established where harm occurred on numerous previous occasions, and officials failed to respond appropriately, or where risk of harm was great and obvious.

43. 42 U.S.C.§1985 and 1986The Ku Klux Klan Act • 1985 is a derivative claim which requires deprivation of a civil right, and, • a conspiracy between two distinct entities to deprive someone of a right because of impermissible class-based animus. • The defendant must have the specific purpose of interfering with a protected right. • Plaintiff must show that one or more of the conspirators did or caused to be done an act which injured the plaintiff and deprived him/her of a civil right. • The underlying cause of action on the violation of the federal right must be established for the 1985 action to be viable. • Must plead an overt act

44. Section 1986: Bystander liability • 1986 is a derivative claim and imposes liability against anyone who: • knows that a conspiracy actionable under 1985 is about to be committed, • has the power to prevent the conspiratorial wrongdoing, and • fails to act to prevent those wrongs. • Must establish 1985 claim and underlying violation for this claim to stand.

45. Sexual Harassment/ Title IX • Sexual Harassment and Gender Based Bullying: • Many bullying and disabilities harassment cases involve sexually based harassment as well. • Title IX claims are governed by the standards set forth by the United States Supreme Court in Davis v Monroe Board of Education, 526 U.S. 629 (1999). • School officials are liable for damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” • Requirements: • Actual knowledge • Deliberate indifference – clearly unreasonable in light of known circumstances

46. Breach of Fiduciary Duty • Fiduciary duty, teacher to student, derives from common law of fiduciary duty and is dependent on inequality of the relationship between the parties. • Glover v Porter-Gaud Sch., S.C., Charleston County C.C. P., No. 98-CP-10-613 • Recently, in the Middle District, a claim for violation of fiduciary duty, included in the complaint filed on behalf of Vicky M, lead plaintiff, against the Northeastern Educational Intermediate Unit, alleging abusive treatment of students in an autistic support classroom by a teacher and a conspiracy to cover it up by administrators, has survived Motion to Dismiss and is moving forward as a viable claim.

47. Recent cases incorporating alternate coas • L.C. v William Penn School District, 2005 U.S. Dist. LEXIS 21658 • Plaintiff, female student, was harassed by another student and assaulted on the playground. Due to other threats, plaintiff requested that she be permitted to stay at the school after closing until her mother could pick her up. She was ordered out of the school building, whereupon she was again assaulted, physically and sexually.

48. L.C. continued • Defendants: District, principal, superintendent, other student and his parents • Claims: Fourth amendment, 1983 substantive due process claim based upon the special relationship and state created danger exceptions to immunity, failure to train, negligence through willful misconduct exception against individual defendants. • Posture: Defense motion to dismiss, assertion of immunity • Held: Fourth amendment and negligence claims dismissed (the latter with allowance to replead), others allowed to go forward.

49. Conclusion • Society does not require adults to be subject to victimization by their fellows without right to recompense or protection. The law, however, does require it for children. • Attorneys who do not believe this is right must attempt to hold the system accountable for the suffering of children, and to trigger change. Ilene Young, Esquire www.ileneyoung.com