Legal Fallout From Intense School Bullying Draws Attention

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Bart Palosz, 15, shot and killed himself on the first day of school in 2013 after years of alleged bullying. In a wrongful death lawsuit against the town of Greenwich, Connecticut, and its school district, his parents claim the school did nothing to curtail the constant attacks on the socially awkward teen.

Similar lawsuits continue to surface across the country. Earlier this year in Glens Falls, New York, the parents of 13-year-old Jacobe Taras sued the school district after their son's suicide for not addressing pervasive bullying, reportedly including the boy being urged to kill himself and being "pushed, punched and tripped."

In Montana, Deon Gillen, 17, committed suicide in February. At the time of his death, his parents already had a pending lawsuit against the school district for failing to address years of bullying. For every extreme case like these, countless other bullying-related law-suits are filed. Mary Rajeh, for example, sued the Hamden Board of Education in Connecticut, claiming the bullying endured by her 8th-grade daughter resulted in panic attacks and other psychological issues needing medical treatment. A trial judge recently dismissed some counts of the lawsuit, including state constitutional claims, but let others, such as negligence, proceed.

Because laws differ from state to state with regard to bullying claims and immunity defenses, litigation is often challenging, legal experts said. The results run the gamut. Some cases are dismissed, some settle, and others go to verdict for large or small sums.

Like any personal injury case, more extreme bullying cases result in larger verdicts and settlements.
Thomas Mooney, of Shipman & Goodwin in Hartford, is co-chairman of the firm's School Law Practice Group, which includes more than 20 lawyers who exclusively defend school districts across the state.

Mooney explained that every state except Montana has enacted some sort of anti-bullying statute which serves as a guide for school districts. But there is no direct recourse if a district refuses to follow the anti-bullying law. "Courts have held that the bullying statute does not give a private cause of action to parents," said Mooney. "In fact, the law itself provides for immunity when districts have a bullying policy in accordance with the law."

In Connecticut, school districts have immunity from bullying lawsuits in state court unless the parents can show that the student is a member of an identified class of persons subject to immediate harm. "Generally you have to show the child was a member of a protected class," said attorney Martin Cirkiel, of Round Rock, Texas. "That they werebullied and harassed based upon a disability, gender, sexual orientation ... and that the school district knew about the bullying and harassment, didn't do anything about it, and that [the victim] was injured because of that failure."

Cirkiel has handled dozens of bullying lawsuits and said most are filed on behalf of victims with disabilities. The second-largest number come from lesbian, gay, bisexual and transgender students, he said.

Cirkiel thinks school districts are becoming more knowledgeable about bullying and intervening sooner when they find out about it. Once they're on notice, he said, they have a duty to intervene. But suicide cases against schools are difficult to prove. Cirkiel likened it to trying to prove a hospital is at fault for a psychiatric patient who commits suicide upon their release. "I haven't seen a case yet in the United States or any federal court that has found a school district liable for a suicide," he said. "But we have been able to argue successfully that the child's mental anguish while he or she was alive is something the school was responsible for."

In states that allow bullying claims, common torts alleged include negligence, negligent supervision and intentional infliction of emotional distress. But often, lawsuits have to be brought in federal court on behalf of protected classes to get around the anti-bullying statutes or immunity laws in state courts, said Adele Kimmel, a senior attorney with Public Justice in Washington, D.C. Kimmel initiated the organization's anti-bullyingcampaign and litigates cases on behalf of bullying victims against school districts.

Among the federal claims that can be brought by plaintiffs' lawyers are Title IX claims for sexual harassment and gender-based bullying; Title VI claims for bullying based on race, color or national origin; claims for disability-based bullying under Title II of the Americans with Disabilities Act or the Individuals with Disabilities Education Act; and equal protection claims under the 14th Amendment.

Kimmel said regardless of where the suit is filed-in state or federal court-defense lawyers routinely try to get the cases dismissed as soon as possible. Common defense arguments other than immunity include that the school districts were not aware of the bullying, that the district did everything it could to prevent the bullying, or that the victim is just sensitive and there was no actual bullying.

If those motions prove unsuccessful, the next step is generally a settlement offer, Kimmel said."After a school district loses on motions to get rid of a case, they often want to settle because it really hurts a school district's reputation having all these media reports saying they haven't handled bullying properly," said Kimmel. Families often would rather settle than "go through the emotional difficulty of a trial."

Often, it's not just about money in procuring a settlement for clients, Kimmel said. The parents want something along the lines of better faculty training on bullying, or an apology. "We get one to two calls a day" from parents about their child being bullied in school, said Mitch Jackson, of Jackson & Wilson in Laguna Hills, California. "It's probably more so than any other type of case."

Jackson encourages parents to immediately put their concerns in writing with the school district to prevent administrators from being able to claim no notice of the bullying. Jackson also recommends notifying police and prosecutors and hiring a lawyer. Sometimes those measures alone are enough to curb the bullying without resorting to litigation, he said.

"The problem is, you've got little Johnny in middle school who gets punched in the face by Bobby the bully. Bobby the bully is beating everyone up," said Jackson. "But for parents to get lawyers involved and pursue those claims, it gets really expensive. The reality is, oftentimes I've wanted to [sue] but it just wasn't economically feasible."

If you have a child with a disability and have questions about special education law, please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a free consultation.

Source: Christian Nolan, Fighting Back; Parents of Bullied Children Bring Lawsuits Across U.S., 42 CONN LAW TRIB 28 at 1 (July 11, 2016)