Academic journal article Journal of Law and Education

Public School Student Bullying and Suicidal Behaviors: A Fatal Combination?

Academic journal article Journal of Law and Education

Public School Student Bullying and Suicidal Behaviors: A Fatal Combination?

Article excerpt

Bullying and suicide each have become major concerns for public school officials.1 The mass media and the professional literature have contributed to not only these separate concerns but their critical connection, often evoking the specter of liability. For example, Essex started his article with a litany of television and newspaper reports of students who committed suicide in the wake of being bullied;2 proceeded to cite scholarly recognition that "depression and suicide are foreseeable consequences of a school district's failure to constrain a known bully from victimizing other students;"3 and suggested both federal and state avenues for successfully suing school officials in such circumstances.4

For bullying and suicide, respectively, the education literature continues the theme of lurking liability,5 despite occasional legal analyses that show that the odds are clearly against the plaintiff-parents rather than the district defendants in such litigation.6 Connecting students' suicidal behavior to peer bullying is not difficult.7 Recognition of this combination even extends to the courts. For example, the Fourth Circuit Court of Appeals recently observed that "student-on-student bullying is a 'major concern' in schools across the country and can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide."8 Similarly, another federal court added: "More recently, stories of bullied victims taking their own lives have become common."9

Does the combination of students' bullying victimization and suicidal behaviors, which has led to the term "bullicide,"10 shift the outcome odds of liability lawsuits against school districts and their employees? Legislation and litigation for more general issues provide the framework for these suits. The principal federal theories are based on Fourteenth Amendment substantive due process" and, more recently, Title IX of the Education Amendments.12 For substantive due process claims arising from student bullying and/or suicide, an imposing hurdle is the Supreme Court's 1989 ruling in DeShaney v. Winnebago County Department of Social Services," that, with very limited exceptions, school districts and other government defendants are not liable for the actions of private actors.14 For Title IX, the landmark case in 1998, Davis v. Monroe County Board of Education," established a multi-step test for liability claims of peer sexual harassment16-which includes bullying17-that culminates in the need to prove deliberate indifference."* Corresponding claims drawing on the Fourteenth Amendment equal protection clause and civil rights statutes, such as Section 504, similarly face multi-step hurdles culminating in the deliberate indifference, or similarly high standard,19 for liability.20 At the state level, the primary claim is negligence,21 arguably bolstered by the recent increase in the number and scope of state anti-bullying laws.22 Yet, such tort claims face a varying but daunting pattern of governmental and official immunity.23

I. METHOD

The purpose of this study is to provide a systematic analysis of the case law specific to the combination of student bullying and suicidal behavior, with the focus on the outcome variable.24 Specifically, the twin criteria for the selection of court decisions were as follows: (1) bullying behavior based on Olweus's generally accepted definition of (a) aggressive behavior or intentional harm toward another student; (b) with the behavior being repeated over time; and (c) reflecting an imbalance of power that renders the victim unable to effectively establish a defense against the aggressive conduct;2' and 2) suicidal behaviors26 divided into (a) a broad category designated as "inchoate," which consists of suicidal ideation, attempted suicide, or unspecified suicidal behavior;27 and (b) a specific category of "actual."28 Thus, for the first criterion the coverage did not extend to court decisions concerning a single sexual assault,29 sexual behavior between two special education classmates,w or bullying behaviors that were entirely peripheral to the claims. …

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