Bullying and Disabilities
Harassment

Finding a Viable Cause of Action
Ilene Young, Esquire
Doylestown, PA
www.ileneyoung.com
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.
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.
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.
IDEA Bullying Caselaw

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
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.
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.
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)
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.
§ 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.
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.
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)
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).
Exhaustion of
Administrative Remedies
Threshold issues

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.
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 “
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.
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.
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.
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.
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)
Preliminary considerations:


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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.
Constitutional
claims/exceptions to immunity

Constitutional Duties:

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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.
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.
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)
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
DR continued

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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.
Recent 3rd circuit case law

Allen v. Susquehanna Twp. Sch. Dist., 2007
U.S. App. LEXIS 9394 (MD PA 2007)

Facts:

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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
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.”
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.
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.

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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?
Exception two: State Created
Danger

3rd Circuit Test: The state may be held liable for
damage to plaintiff caused by a private individual if:



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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.
Kneipp v Tedder, 95 F. 3d 1199, 1208 (3rd Cir 1998)
State Created Danger: 3rd
Circuit, cont.

Failure to act v. Affirmative act: Failure to act
must constitute deliberate indifference.


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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)
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.
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
Circuits vary

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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.)
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”
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.


Finding a defendant:

A supervisor is not vicariously liable for actions of
subordinate employees of the governmental unit.

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Supervisor liability
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.
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.
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 wellestablished constitutional right
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.
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.
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.
42 U.S.C.§1985 and 1986
The 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
Section 1986:
Bystander liability

1986 is a derivative claim and imposes liability against
anyone who:



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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.
Sexual Harassment/ Title IX

Sexual Harassment and Gender Based Bullying:



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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
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.
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.
L.C. continued



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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.
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