Tuesday, May 24, 2016
A new lawsuit against against a school district just outside Cincinnati, Ohio, raises several interesting factual and legal claims. Unfortunately, they are bound up in incredible tragedy. According to the complaint, Emilie Olsen, a middle school student, committed suicide following an extended period of regular and egregious harassment and bullying. The introduction to the complaint states:
Emilie, an Asian-American, was continually bullied, harassed, assaulted, battered, and discriminated against in school, and further bullied and harassed online, because of her race, national origin, and gender, as well as her association with Caucasian students, and her perceived sexual orientation and practices. Emilie and her parents tried to end the bullying and repeatedly pleaded with certain Defendants for help. Defendants failed to stop the bullying, and it continued. Consequently, Emilie suffered severe anguish, distress, and depression, and ultimately committed suicide. Sadly, Emilie’s case was not an outlier; other Fairfield students also suffered unrelenting bullying and discrimination, and two of those students attempted suicide months before Emilie’s death. Certain of the Defendants, likewise, failed to intervene on behalf of these students. This action seeks damages and seeks to reform the Fairfield City Public Schools’ policies and practices for responding to bullying, harassment, assault, battery, and discrimination.
The complaint frames these facts as violations of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments, Substantive Due Process, and Equal Protection. It also raises Section 1983 claims, alleging a pattern and practice of violating these aforementioned rights, along with a host of state law claims.
The first issue that jumps out at me is one of mixed motive. The complaint details a long list of incidents, statements, and altercations, some of which relate to sex, some of which relate to sexual orientation, and some of which relate to race and ethnicity. Some incidents do not facially fit into any category of discrimination and could be either general bullying or circumstantially related to the aforementioned discrimination. General bullying would not violate any federal statutory protection, although it might fall into a substantive due process claim if sufficiently egregious and ignored.
Bullying need not, of course, fit into any single prohibited category to be actionable, but it does need to fit in some category. The "cleanest" cases are those where the bullying is strictly about race or gender, as the fact finder does not need to work as hard to discern a prohibited motivation or form of discrimination. This makes the narrative of discrimination easier to build. In the instant case, race and ethnicity seems to be a dominant aspect of the harassment, but sex and potentially sexual orientation seem to play a significant role as well. The court, however, will either need to sort these types of discrimination out or recognize the inter-sectional nature that discrimination often takes but which courts sometimes fail to appreciate. Here, it may very well be the case that this student's gender, sexual orientation, race and ethnicity all intersected to create a particularly virulent form of discrimination. Life, quite simply, does not always fit easily into the neat boxes the law would proscribe.
Second, this case raises the same issues always at play in harassment cases: what exactly did the district know and, if they knew something, did they do enough to address it. Title VI and Title IX law is pretty permissive on both questions. Teacher knowledge is not enough. Agents of the school (principals, administrators, etc) must have knowledge of the harassment that amounts to prohibited discrimination and fail to reasonably respond. Failing to respond means more than just failing to stop the discrimination. Here the district, according to the complaint, was repeatedly put on notice on numerous occasions of what occurred. The parents, however, seem to have been kept in the dark about a lot of things, including incidents that the district may have learned of itself and the district did or did not take to address them. For the most part, the complaint alleges that the district did nothing to respond, which very well may be true, but one could fairly assume the district will point to a number of things it did, in fact, do. The determinative question will be whether whatever the district did was enough.
The lawsuit, interestingly, goes beyond these basic notice and response questions of statutory claims, raising constitutional claims that potentially require a broader inquiry into whether the district actively put the student in danger or harbored some impermissible biases or neglect of its own. I will, however, reserve that discussion for later.