With the growing incidence of bullying at school and related student suicides, many people are concerned that there is not enough teeth in the law to protect students from this conduct. While efforts have been made in Michigan to pass anti-bullying laws, there has been much resistance to that in the Legislature.
One frustrated family decided to take a different path when their son continued to experience bullying throughout middle school and into high school. The bullying affected his grades and his self-esteem. He was sexually assaulted at school. He was certified as “emotionally impaired” and offered special education services. While the school did some investigation and made some attempt to intervene, it was not enough to protect this students. The parents finally decided to sue in federal court Title IX, the federal statute that provides that no student may “be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance....” 20 U.S.C. § 1681. The United States Supreme Court developed a three part test for Title IX cases in Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), and the Sixth Circuit adopted that test in Vance v. Spencer County Public School District, 231 F.3d 253 (6th Cir.2000). In the Davis case, the Supreme Court held that IX may support a claim for student-on-student sexual harassment when the plaintiff can demonstrate the following elements:
(1) the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school;
(2) the funding recipient had actual knowledge of the sexual harassment, and
(3) the funding recipient was deliberately indifferent to the harassment.
In Patterson v. Hudson Area Schools, 551 F3d 438 (Mich. 2009), the Sixth Circuit held that the student had offered sufficient evidence to avoid dismissal of the case, and the case was remanded for a jury trial. While school had made some effort to intervene, support the student, and enforce its anti-sexual harassment policy, the court held that this was not enough to avoid the claim that it had been, in fact, “deliberately indifferent to the harassment.”
It is a pity when parents are forced into federal court to protect their children from bullying. Michigan should criminalize this behavior. It should not just be treated as a civil matter, especially when the bullying itself is often a crime and the bullying often leads to academic failure, social stigma, and often suicide.