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6th Cir. Affirms Against Bullied Child in Harassment Case

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By Jonathan R. Tung, Esq. on March 29, 2016 1:56 PM

Bullying, it seems, is a reality of schoolyard politics. And despite the seeming injustice in a recent circuit court ruling, the Sixth Circuit determined that a defendant school district was not "deliberately indifferent" as to the sufferings of one bullied child.

The court ruling is a reminder to both schools and parents that bullying is an unfortunate reality that sometimes cannot be cured by legal means.

Memories of Bullying

A mother and her minor child D.S. brought several federal and state claims against his school after years and years of repeated and increasingly outrageous incidents of bullying by fellow students. In fact, the numerous bullying incidents were so numerous and were caused by so many different students that each documented incident took almost have of the circuit's opinion.

Children would mercilessly both physically and verbally abuse D.S. at Rutledge Middle School. He was called "queer," "gay," and many other names. And, as we are all aware, when children throw these terms around at school, they aren't used in a complimentary way: they're intended to hurt.

Incredibly, despite all of this chaotic emotional turmoil, D.S. was a straight A student from seventh to eighth grade. But his mother later transferred him to a different school,

Title IX Claims

D.S. and his mother sued Rutlege and the Grainger County Board of Education on multiple claims. The most notable was a claim that the school was in violation of Title IX which prohibits discrimination from participation based on sex (or sexual harassment) in an educational institution receiving federal assistance.

Under Title IX, a prima facie case is established if the plaintiff demonstrates the following elements: sexual harassment that is so severe or pervasive that it would deprive the plaintiff of access of the educational opportunities or benefits of the school; the school had knowledge; and "deliberate indifferen[ce]" to the harassment.

What was relevant was the terrible regularity with which D.S. had to suffer the bullying. Anytime D.S. was bullied at school, either he or his mother would alert the school, and agents would promptly attend to the matter. Kids were either suspended, disciplined, or lectured. But no matter what measures seemed to be taken, the harassment and fights only seemed to get progressively worse.

New Bullies

Case law had previously established that a school could be found to violate Title IX for the actions of the students in "limited cases." Davis v. Monroe County Board of Ed. The Sixth Circuit concluded flatly that the first two elements of Title IX had been met. But it found that the plaintiffs fell short of proving element number three.

The Circuit highlighted some hard truths about the case. The fact of the matter was that DS had been harassed by separate children throughout those years and there was not repeat pattern of any particular child or particular child: the only common thread was that D.S. was harassed, but not by different kids. Previously case law on the matter had held that courts usually only found Title IX claims when harassment came from the same students.

No matter how many students the school reprimanded, punished, scolded, or suspended, the bullying continued -- and from different people. Unfortunately, the circuit also noted that in some instances, D.S. was also the instigator in some fights. Whatever the case, the facts and record seemed to indicate that the school beyond what it could have done to protect D.S., but to no avail. Its actions were clearly not "deliberately indifferent."

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