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Oklahoma Nonbinary Student’s Death Shines a Light on Families’ Legal Recourse for Bullying

The death last month of a nonbinary Oklahoma student following a fight with other students in a high school restroom, while still mired in questions about what exactly transpired, is drawing renewed attention to school responses to harassment and bullying.

It remains challenging for teachers and administrators to prevent and respond to bullying. But it is also difficult for students and parents to hold schools and districts legally responsible for any failures.

Laws in most states require schools to have anti-bullying policies and procedures, but most do not give families a right to sue over ineffective responses. There is a dichotomy over the fact that 24 states have anti-bullying laws or regulations that specifically include LGBTQ+ students in their protections, while 23 states—including Oklahoma—have laws restricting the rights of those students in some way.

Meanwhile, claims under federal law and the U.S. Constitution face a relatively high bar for plaintiffs to hold school authorities liable.

Despite all that, there has been an apparent increase in legal settlements over harassment and bullying cases in recent years, some with payouts in the millions of dollars.

“Bullying is devastating our children,” said Adele P. Kimmel, the director of the Students’ Civil Rights Project at Public Justice, a Washington, D.C., and Oakland, Calif., legal organization that has made anti-bullying a major part of its work. “Bullying needs to be treated as the serious problem it is, not as a normal rite of passage to be left alone and endured. Far too often, schools are not doing what the law or their own anti-bullying policies require. They generally raise every defense they possibly can to avoid accountability.”

Diane M. Holben, a former school district administrator in Pennsylvania who is now an education professor who has studied bullying and the legal liability surrounding it, said there has been a notable change in outlook among educators over the last generation toward bullying and harassment of students by their peers.

“Everybody’s awareness of it as a problem is far more heightened than it was 15 to 20 years ago,” said Holben, an associate professor of secondary education at East Stroudsburg University. “Attitudes have shifted on [bullying of] students with disabilities and students with gender identity issues.”

But that doesn’t mean bullying has been erased from the nation’s schools, of course.

“There is still much work to be done” to make schools safer for bullied students, Christine Tamer, an assistant law professor at the University of North Texas at Dallas, observed in a recent scholarly article. “In order to make schools change their climate to be safe for all students, including the scores of students bullied on the basis of their sexual orientation, schools must be made afraid of what will happen to them if they don’t.”

Questions about what occurred in a high school restroom

The Oklahoma case involves Nex Benedict, a nonbinary 10th grader at Owasso High School in a Tulsa suburb who died one day after a Feb. 7 altercation in a school restroom with three girls who had allegedly mocked Benedict in the past over their appearance.

The girls allegedly beat Benedict in the restroom, and Benedict hit their head on the floor.

From a hospital bed, the student provided police with their account of the altercation. In an interview captured on a school resource officer’s body camera, Benedict said they had not contacted a school counselor or administrator about earlier bullying activity by the girls involved in the restroom incident.

“I didn’t really see the point in it,” Benedict told the officer.

Benedict died the next day, and there is uncertainty surrounding the student’s cause of death. The police had said preliminary autopsy results indicated that Benedict did not die as a result of trauma. But the investigation is continuing, and last week the U.S. Department of Education’s office for civil rights launched its own probe into the incident.

The federal action came after the Human Rights Campaign, a Washington-based LGBTQ+ civil rights organization, wrote on Feb. 21 to Secretary of Education Miguel A. Cardona calling on the department to investigate Owasso High’s alleged failure to address harassment and discrimination against Benedict.

“We are deeply concerned about the failure of Owasso High School to address documented instances of bullying, violence, and harassment against Nex, which occurred in earnest over the course of the previous school year,” said the Feb. 21 letter from HRC President Kelley Robinson.

In the letter, Robinson refers to Oklahoma as being among the “nation’s top five promulgators [among states] of anti-LGBTQ+, discrimination,” citing its adoption of laws that prohibit gender-affirming health care for transgender youths and barring transgender students from using names, pronouns, and restrooms consistent with their gender identity.

Other states have passed similar laws, as well as some barring transgender females from participating in girls’ athletics or more generally restricting discussions of sexual orientation or gender identity in the curriculum.

On the flip side, 24 states include sexual orientation and gender identity in their anti-bullying laws or rules as of 2021, according to Child Trends, a Rockville, Md.-based research organization.

At least one state, Iowa, would appear to fall in both categories. It includes sexual orientation and gender identity in its anti-bullying law, but has also adopted a law restricting discussions of LGBTQ issues in schools.

Researchers find a rise in lawsuits, and settlements

It is too early for any civil claims for liability in Benedict’s case. But scholars say bullied students and their parents have increasingly turned to the courts to seek redress for alleged failures by school officials to stop or adequately respond to problem behavior.

Holben and a Pennsylvania colleague, Perry A. Zirkel, an emeritus professor of education and law at Lehigh University, published a study in 2015 of 20 years of state and federal litigation seeking to hold schools responsible for failing to respond to bullying.

They found an increasing number of federal claims brought under federal constitutional provisions such as the 14th Amendment’s equal protection and due process of law clauses, or Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools.

Researchers view peer sexual harassment as a form of bullying. They also draw a distinction between harassment based on race, sex, national origin, and disability, which are protected classes under federal law, and other forms of bullying, such as student appearance, which aren’t protected classes under federal law.

Harassment or bullying based on sexual orientation and gender identity remains a developing area of the law. In 1996, a gay high school student in Wisconsin won a groundbreaking federal appeals court ruling that recognized a federal equal protection claim over his school district’s alleged failures to end his bullying by fellow students.

The student, Jamie Nabozny, told Education Week at the time that his middle school principal had once told him, “if I was going to be openly gay in school, I had to expect this.” The U.S. Court of Appeals for the 7th Circuit, in Chicago, revived his lawsuit, ruling that his school had treated his complaints of verbal and physical abuse differently than girls’ complaints about sex discrimination.

Nabozny’s case went back for a trial, and after a jury found that school administrators had failed to protect him, the Ashland, Wis., school district quickly settled with Nabozny for more than $1 million.

But most federal claims often face a high bar to hold school districts or administrators responsible.

In 2013, in a closely watched case, the full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, held that a Pennsylvania district could not be held liable for the racially motivated bullying of a female student by one of her classmates. The perpetrator had engaged in threats and even physical assault of the victim, and the high school re-admitted her even after she had been adjudicated delinquent in juvenile court, and the girl returned to making threats. When the victim’s parents brought the latest threats to school officials’ attention, they suggested the parents might want to transfer their daughter to another school.

The 3rd Circuit court ruled that despite compulsory education laws the school did not have a “special relationship” with its students that would give rise to a duty to protect them from harm from other students. And it ruled that legal injuries to the victims were not the result of actions taken by administrators under a “state-created danger” theory of liability, in which the government has created the dangerous conditions that resulted in harm to someone.

Citing Supreme Court and circuit precedents, the 3rd Circuit said that “public schools, as a general matter, do not have a constitutional duty to protect students from private actors.”

Once a plaintiff clears a legal hurdle, odds of a settlement increase

Meanwhile, all 50 states now have anti-bullying laws, which dictate various procedures and policies for local districts and schools, definitions of who is covered, and staff training requirements. But except for New Jersey, they don’t have a private right of action to sue districts for failing to respond to bullying.

Families can file other types of state lawsuits, such as torts or civil rights claims, but school districts and administrators often have robust immunity from civil damages in such cases.

“Depending on the level of immunity, you are not going to get very far in state court,” Kimmel said.

Despite such hurdles, the lawsuits keep coming. And scholars say there are a significant number of cases resulting in settlements paid out by districts, often covered at least in part by their insurers. Such settlements typically come about only after a plaintiff has cleared a legal hurdle.

“When a court does not throw the case out at the motion to dismiss or summary judgment stage, that’s when you see schools get serious about talking about settling,” said Holben.

She and Zirkel followed up on their 20-year study of bullying litigation with a 2020 paper examining cases that had resulted in inconclusive outcomes. They found that when a bullying lawsuit had at least one inconclusive claim that favored the plaintiff, even if a court ruled decisively for the defendant on a suit’s other claims, about two-thirds of those cases were settled.

There have been some significant settlements in bullying cases in recent years.

  • In 2021, the Huntsville, Ala., school district settled a lawsuit with the family of a gay high school student who died by suicide after suffering unrelenting anti-gay bullying by classmates. The settlement was for $840,000. In addition, the district agreed to bolster its policies to protect LGBTQ+ students.
  • Also in 2021, the Washoe County school district in Nevada settled for $4.4 million in a suit on behalf of a student with disabilities who suffered bullying and physical abuse from fellow students on his school bus for six months.
  • In 2020, the Moreno Unified School District in California settled for $27 million in a lawsuit over its handling of the bullying of a 13-year-old after two students attacked him in the middle school lunchroom, resulting in a brain injury from which he did not recover.

Schools agree bullying is a problem, but aren’t likely to surrender defense to lawsuits

School officials and their advocacy groups agree that bullying is a problem that requires vigorous responses. When the U.S. Supreme Court in 2021 took up a case about whether administrators could punish students for off-campus speech on social media, groups representing school boards, superintendents, and principals filed a friend-of-the-court brief arguing they needed the leeway to discipline such off-campus behavior to battle cyberbullying.

“Effectively addressing student-on-student bullying is a core part of a school’s role,” the groups said. (When the court, in Mahanoy Area School District v. B.L., overturned the discipline of a high school cheerleader who had used vulgar language on Snapchat, it said schools could likely still regulate “serious or severe bullying or harassment” that targeted individuals online. The school groups claimed a partial victory.)

But when it comes to individual cases in which they are sued, school districts are not likely to admit liability or quickly surrender their defenses. The same goes for their advocacy groups. In the U.S. Supreme Court in 2022, the North Carolina, South Carolina, and Virginia school boards associations filed a brief supporting a Virginia school district’s effort to seek review of lower court rulings holding the district potentially liable in a case of student-on-student sexual harassment.

The state school board groups expressed concerns about “the pitfalls of allowing courts to second-guess school administrators’ subjective knowledge about student-on-student interactions.”

The groups said in their brief in Fairfax County School District v. Doe (a case the U.S. Supreme Court declined to take up) that initial complaints from a student about harassment or bullying often evolve as the matter moves up the discipline chain and possibly into court.

“Particularly once a student’s parents become involved, the alleged incident may soon bear little resemblance to the initial report.”

Kimmel said Public Justice helps litigate bullied student cases aiming to hold school districts and officials accountable. In its cases, it seeks changes in policies in addition to damages for the victims.

“We cannot eliminate all bullying among school children, but we can make schools and school districts respond appropriately to it, and do a better job of preventing it in the first place,” she said. “It’s about making schools safe and welcoming environments.”

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