Pushing the limit of “deliberate indifference”

LonelyBoyWhen is a school liable for student-on-student bullying? The standard laid down by the Supreme Court in Davis v. Monroe County Board of Education is whether the school has shown “deliberate indifference.” In Davis, the Court held that a school is liable for damages if it failed to respond to known acts of severe student-on-student harassment, thereby creating an environment that denies the victim equal access to education.

The Supreme Court justified the doctrine of deliberate indifference by referring to the doctrine of in loco parentis, noting that the school has “substantial control over the context in which the harassment occurs,” and that “the nature of the State’s power over schoolchildren is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” As my post on in loco parentis noted, the power of the school to exercise control over its students comes with a duty to ensure safety, health, and an effective learning environment.

The school officials in Davis were obviously “deliberately indifferent” because they totally failed to respond to a female student’s complaint of sexual harassment by another student. But in reality, deference to the judgment and discretion of school officials has meant that in cases where school officials addressed the student complaint, courts are unlikely to question the adequacy of that response and find deliberate indifference.

But recently, a case has pushed the boundaries of what “deliberate indifference” means. [Full disclosure: I worked on the case briefly and tangentially last year.] Like other cases that involve bullying, the case of Patterson v. Hudson Area Schools is a disturbing and sad one. For three years, the plaintiff DP’s life in school was a nightmare. Beginning in 2002, while he was in 6th grade, classmates began taunting him, calling him “faggot” and “queer” and pushing him into lockers. DP reported some of the incidents and began psychiatric counseling, but the taunting escalated in 7th grade. DP’s grades suffered, and he became withdrawn and depressed.

Things briefly improved in 8th grade with the help of a compassionate special-education teacher, but worsened again in 9th grade, after DP began high school and no longer had access to the teacher. The harassment of DP escalated again. In addition to name-calling, students wrote insulting phrases about DP on note cards and showed them during a presentation in class, defaced DP’s planner with sexual phrases and drawings, and vandalized his school locker. Some students also broke into DP’s gym locker, removed his clothes and urinated on them, then threw his shoes into the toilet.

The school punished each of the identified students responsible for the harassment. The individual harassers who were punished never bothered DP again. But some harassers, such as those who defaced DP’s lockers on the two occasions,were never identified. In the meanwhile, the harassment continued, and finally culminated in a sexual assault by a student against DP in May, 2005. DP’s attacker was suspended and ultimately expelled permanently from the school system.

After the attack, DP refused to set foot in his high school again. His school allowed him to receive instruction off the school grounds in another building, and later to attend college courses to satisfy his high school requirements. DP graduated high school early. In 2005, his parents filed suit against the school district.

DP’s parents alleged that the school violated Title IX of the Education Amendments of 1972 by showing “deliberate indifference” to DP’s reported harassment complaints. The question came down to whether the school’s responses were reasonable under the circumstances as a matter of law. The school argued that it had punished each of the identifiable perpetuators who harassed DP, and that the punishment was effective at least as to the individual harassers. The school also pointed to its attempts to help DP by providing him with counseling, one-on-one meetings with the principal, a special-education teacher, and extensive accommodations after his sexual assault.

The district court agreed with the school’s argument and granted summary judgment against DP’s parents. But the Sixth Circuit reversed, finding that the school’s response to the pattern of harassment was not reasonable. The court reasoned that, although the school effectively punished individual perpetuators, the real problem that DP faced was not any isolated incident but a pattern of pervasive and persistent harassment and an environment of hostility. When it became clear that the standard responses were not working to stem the harassment, the school had a duty to do more.

Here, the opinion was treading on thin ice. Unlike in Davis, the Hudson Area Schools officials did not sit idly by while a student was being harassed. They tried to help him, but their efforts failed. There simply isn’t a lot of case law that supported the contention that what the district did here was inadequate or unreasonable. The majority opinion cited an out-of-circuit district court case extensively, a fact that was ridiculed by the dissent. The majority was also silent on the obvious question of what else could the school administrators have done.

Patterson represents the broadest interpretation of “deliberate indifference” that a circuit court has made to date. Last week, the Supreme Court denied certiorari to the case, which means that the Sixth Circuit decision stands, at least for now.

Yet, despite all that is unsatisfying about the case, I believe that Patterson is a positive development. First, the case makes sense doctrinally, even if it goes beyond what “deliberate indifference” has been interpreted to mean in other school cases and in other contexts, such as employment law. The decision tracks the trend of expansion of school powers into many areas of student life, not the least of which are rights involving free speech and search-and-seizure. With the broadening of school authority and the increase in the school’s ability to control its students should come a corresponding broadening of the school’s responsibilities. As I discussed above, the Davis Court itself has linked its justification for the doctrine of deliberate indifference with the control that a school exercises over the school environment. DP loses a lot of rights when he walks into that schoolhouse. In exchange, he should receive a lot more protection.

Second, and more important, this ruling, if it is followed, will encourage school officials to look beyond rote and often ineffective responses to bullying to look for more creative and effective solutions. As DP’s case illustrates, bullying is a devastating phenomenon with complex social and psychological roots. School officials should not be automatically shielded from liability just by resorting to solutions that have been shown to be ineffective. DP deserves educators who are actually not “deliberately indifferent.”

2 Responses

  1. Great post. One thought: you write: “The majority was also silent on the obvious question of what else could the school administrators have done”.

    I would like to point out that although one may have expected to the court to articulate the types of activities the school should have done, or do in the future, there is an advantage for being silent on this issue.

    I am mainly thinking here of what Mark Tushnet has dubbed weak form judicial review. Because judicial review entails a host of democratic problems, some have suggested that its anti-democratic character be mitigated by using weak remedies, or by giving more space to the democratically accountable branches to fashion their own solution.

    Thus, the court is saying: “this is illegal/unconstitutional/breach of duty/etc., but because you’re the democratically accountable branch,e.g. a school board, and are professionally competent to address issues within the purview of your authority, I am going to give you a lot of leeway in fashioning a solution to the problem, after I highlighted the problems with your present solution”.

    Understood as an instance of weak form review, it seems to me that the court was right in remaining vague on the desired remedy.

    • Adam, I agree with you that once the legal determination is made that the school’s response was unreasonable, it is better for the court to refrain from making specific prescriptions as to what the school should do. But exploring what else the school might have done to help DP may bolster the legal conclusion that the school’s response was in fact unreasonable, especially since the school’s argument was essentially that its officials did all they could. Even though I agree with its ultimate conclusion, I still think that this is a major weakness in the decision.

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