School Officials Can Be Held Liable for Failing to Protect Special Education Students from Bullying

Article excerpt

Bullying in schools is increasingly recognized as a significant problem, with students enrolled in special education programs particularly vulnerable to this bullying. The United States District Court of Connecticut ruled that when school officials fail to take adequate steps to protect such students from bullying they may be sued for the harm resulting from this bullying.

A boy enrolled in a Connecticut middle school had been diagnosed with a learning disability and enrolled at various times in a special education program. It was alleged that fellow students bullied, harassed, and threatened the boy as a result of his disability, that this caused him to miss thirty-seven days of school in the sixth grade, that the situation became worse the next year when a student who had assaulted his mother the year before was seated behind him in class, that the boy again became excessively absent from school as this student and others bullied, punched, and attacked him, that school officials failed to redress these problems despite his mother's complaints, and that shortly thereafter the boy committed suicide.

The mother sued the local Board of Education, the Superintendent of Schools, the school's Vice Principal, and the school's Guidance Counselor. Prior to trial, the defendants argued that even assuming that all the facts the mother asserted were true, the law did not provide a basis for her lawsuit.

The court, however, ruled that existing law does provide a number of bases for such a lawsuit. For example, a violation of the Due Process Clause of the Fourteenth Amendment may have occurred. The court noted that the United States Supreme Court in DeShaney v.

Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1999), held that a state does not have an affirmative constitutional obligation to protect its citizens unless the individual was at the time in the custody of the state or was exposed to danger created by the state.

The court concluded, nevertheless, that school officials could be held liable under the Fourteenth Amendment if they knew about the bullying situation and failed to act in response to the situation. For example, if one of them had knowingly placed her son in a class with a student who was a known threat to him and then refused to move him despite the mother's request, combined with a failure to provide him with the special education services to which he is entitled under federal law, then a Fourteenth Amendment violation could be established. The court held that it is sufficient to show that school officials failed to act and had assisted in some way in creating or increasing the danger to the victim.

The court also ruled that if it could be shown that the boy was intentionally subjected to invidious discrimination based on his disability at the hands of school officials who had not treated him similarly as they treated other individuals without such disabilities, a violation of the Equal Protection Clause of the Constitution could be established.

Other available lawsuits included: (1) a federal constitutional claim that the defendants failed to adequately train and supervise school employees in how to deal appropriately with children with a learning disability and to establish necessary anti-bullying and harassment policies; (2) a claim for damages (albeit not punitive damages) under the federal Rehabilitation Act of 1973 and the Americans with Disabilities Act based on the boy's special education placement and bullying situation; (3) a claim that the defendants conspired to deprive the boy of his federal constitutional rights; and (4) a state law negligence claim that the defendants breached their duty to prevent and protect him from intentional harm, to provide him with a safe and productive learning environment, and to supervise the students or to take steps to prevent the bullying. …