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Grandma fights back against bullying

Renola Dower, who has sued Baltimore school officials for allegedly ignoring her grandson’s complaints about being bullied, seems to be part of a growing national trend.

Her lawsuit, seeking $10 million for the teasing that allegedly left the 9-year-old Leith Walk Elementary student so distraught he tried to hang himself at school, is just one of several filed nationwide in recent months.

“This is certainly an issue that has an extremely heightened awareness now, not only in schools, but across the country and among the public,” said Sonja Trainor, senior staff attorney at the National School Boards Association in Alexandria, Va. “I think we have to say there’s more of these suits being filed.”

Since the beginning of this year, bullying lawsuits filed against school districts include:

  • A suit filed in January in state court in New York by a mother who alleged that the Trumansburg Central School District failed to protect her son, a special needs elementary school student, from bullying that took place on a school bus.
  • A $10 million wrongful death claim filed in state court in Virginia by the mother of Christian Taylor, a high school freshman who committed suicide on May 31. The suit claims that school officials ignored repeated bullying of Taylor by another student and failed to protect Taylor’s safety.
  • A suit filed in federal court in Wisconsin by the mother of a high school student who was rendered quadriplegic after attempting suicide. The suit alleges the Chequamegon School District and officials failed to respond to repeated bullying, threats and sexually aggressive taunting by the girl’s classmates.
  • And, in Massachusetts, the case of Phoebe Prince — a high school freshman who killed herself Jan. 14, allegedly because of bullying — has drawn national attention because of criminal charges filed against nine students. Her family has hired an attorney, but no civil suit has been filed as of yet.

Quest for legal grounds

Maryland is one of 44 states with anti-bullying statutes that detail procedures for dealing with peer-on-peer abuse.

The Maryland law, enacted in 2008, requires the state Board of Education and county school boards to develop policies prohibiting “bullying, harassment and intimidation” in schools. These banned activities include not just physical or spoken conduct but written messages, including postings on the Internet or messages sent by computer or cell phone. The law also grants immunity from civil liability for school employees who report instances of bullying, harassment or intimidation.

But the Maryland law — like most of the others in the nation — does not provide a private cause of action.

Thus, bullying suits are brought under state tort laws, federal statutes or constitutional theories such as equal protection or due process.

“I have seen them all,” NSBA’s Trainor commented. “Some include allegations under several theories at once.”

Negligence suits — including Dower’s — filed in state courts argue that the schools had a duty of care that was breached. But those claims are difficult to prove, according to Trainor, because “there’s recognition in the courts … that it’s not our duty to protect one kid against the mean act of another kid unless it’s brought to our attention, so those negligence cases usually don’t go very far.”

Because of the difficulties in bringing bullying suits in state courts, many of these cases are filed as racial or sexual harassment cases in federal court, alleging Title VI or Title IX violations, according to several plaintiffs’ lawyers.

“Those cases have a different standard of liability,” Trainor noted, “so if [the plaintiffs] can show the school acted with deliberate indifference and that the harassment was severe … then they have a case.”

‘Duty to protect the child’

Karl-Henri Gauvin, attorney for Baltimore grandmother Dower, said he thinks his client’s case stands a better chance of winning than others in courtrooms across the country.

“Here, I think the difference is that we’re holding this school accountable, not for the bullying per se, but for not intervening to assist my client when he was going to hurt himself,” Gauvin said.

At 9 a.m. on his third day in a special-needs class at Leith Walk, Dower’s grandson twice told his teacher that classmates were bullying him — in one instance another student threw a desk at him and in another there were taunts — but she ignored him both times, Gauvin alleges in the complaint.

The third time, the grandson — “extremely frustrated and upset” by the bullying and the indifferent teacher — told the teacher he was going to hurt himself, Gauvin added in the suit filed April 15 in Baltimore City Circuit Court.

The boy then went to the front door of the classroom, stood on a chair, strung a coat from a hook on the door, tied an end of the coat around his neck and kicked the chair out from under his feet. While he dangled by his neck, the teacher grabbed her cell phone, took pictures of the boy hanging by his neck and said, “Now, that’s the picture I want,” the complaint alleges.

The teacher then put the chair back under the boy’s feet to stop him from hanging, according to the complaint.

Dower received a call from the school at 10 that early December morning last year, telling her to come to Leith Walk with her grandson’s medical card because he was being taken to the hospital. At the school, Dower was shown a picture the teacher had taken, Gauvin alleges.

The grandson, who has attention deficit hyperactivity disorder and asthma, was taken to University of Maryland Medical Center, where he stayed for one week. After being released, he was transferred to Halstead Academy.

Gauvin, on Dower’s behalf, filed suit for gross and simple negligence against the mayor and City Council, as well as the Baltimore City Board of School Commissioners, the Baltimore City Public Schools, Leith Walk Elementary School, its principal, Edna Greer, and the teacher, identified in court papers as Ms. Stinger. Judge Wanda Keyes Heard dismissed the claim against the mayor and city council on July 6 because they are not affiliated with the school system.

Claims against the other defendants are pending.

“I think we have a high probability [of winning] based upon the fact that the teacher has a permanent duty to protect the child,” Gauvin said. “He notified her that he was going to harm himself and rather than protect him, she just sat back, took some pictures … when he began to flail that’s when she acted.

“To me, it’s akin to a lifeguard almost allowing a child to drown,” he added.

Quinton M. Herbert, the school board’s litigation counsel, declined to comment on the case, citing the board’s policy of not commenting on pending litigation.

Baltimore City Public Schools spokeswoman Edie House Foster referred questions regarding the school system’s anti-bullying policy to its website and a letter that schools’ CEO Andres A. Alonso sent to administrators, teachers and parents in May. In that letter, Alonso said school employees must understand that “the slightest bully-like behavior, left untended, can lead to something much larger and more troubling.”

He stated that the school system has placed mental-health clinicians in the middle grades and has implemented programs to improve classroom environments to curtail bullying. These initiatives have led to a 33 percent reduction in student suspensions since 2007, he wrote in the letter dated May 4.

“City Schools’ primary approach to bullying is to work with all our kids to create climates where every child feels safe,” Alonso added. “This trend reflects our clear approach to discipline: Incidents of violence need to lead to suspension; incidents that are not violent in nature need a range of responses that should keep the children in school.”

Outcomes, verdicts mixed

While a few of the latest bullying cases have settled, those that have gone to trial have resulted in mixed outcomes.

In two recent cases, federal juries returned opposite verdicts. In Michigan, a federal jury in March returned an $800,000 verdict against Hudson Area Schools. U.S. District Judge Lawrence Zatkoff overturned that verdict early in July, but the school district — just one day earlier — had agreed to settle the suit for an undisclosed amount.

In May, a federal jury in Arkansas returned a verdict in favor of Fayetteville School District in a Title IX peer sexual harassment suit.

Edward Olds, a civil rights lawyer and head of Mt. Royal Law in Pittsburgh, said he turns away more bullying cases than he accepts.

“I get calls, but they are very difficult cases,” he said.

Olds recently settled a lawsuit filed in federal court in Pittsburgh by the mother of a sixth-grader who allegedly became anorexic due to teasing by classmates.

“I characterized the motive for the bullying as sexual harassment, so it was brought under Title IX,” he said. “There was a bunch of boys tormenting a girl, calling her fat, so we were able to assert that it was a sort of sexual harassment.”

In addition to the legal hurdles, there are practical difficulties with bullying cases, according to Olds.

“It’s very difficult for minors to be involved in lawsuits, and lawsuits take so long,” Olds said. “If someone is concerned about [bullying] when they are 10, by the time they are 15 or 16 and the case gets to trial they are a different person.”

But Trainor said she doesn’t see any sign of the bullying lawsuits abating.

“Is it awareness making the cases be filed, or the cases bringing the awareness?” she questioned. “But I do think there are more suits.”