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Schools work to reduce liabilities over bullying

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Schools work to reduce liabilities over bullying

The widely publicized suicide of a Massachusetts teen and an $800,000 award to a Michigan teen, both of whom allegedly were bullied by classmates, are expected to generate more litigation against school districts, observers say.

In the Massachusetts case, 15-year-old Phoebe Prince, a recent immigrant from Ireland, hanged herself in January after being bullied by classmates at South Hadley High School. The bullying allegedly began after she briefly dated a high school senior.

Prosecutors have filed charges including statutory rape, violation of civil rights with bodily injury, harassment and stalking against six alleged perpetrators.

In the Michigan case, a federal jury in Detroit last month awarded $800,000 to a student despite the fact that the school district had made some efforts to stop the bullying.

In David Patterson and Dena Patterson vs. Hudson Area Schools and Kathy Malnar, the parents of Dane Patterson accused the school district of violating Title IX of the Education Amendments of 1976, which bans sex discrimination in schools, by allowing their son to be harassed by other students. The son, now 19, endured years of escalating bullying by his classmates that culminated in a sexual assault, according to court documents.

Observers say school bullying has always been an issue, but the advent of online social networking has exacerbated the problem.

Steps school district risk managers should take to address the problem include implementing a policy and training students, staff and parents, experts say (see related story).

Eric Seaborg, risk management consultant for Chevy Chase, Md.-based United Educators Insurance Inc., a reciprocal risk retention group, said, “There are a lot of school systems out there that are very, very advanced in regard to having committees and prevention group programs to address bullying, to identify bullying behaviors, to deal with bullying behaviors.”

In the Michigan case, the 6th U.S. Circuit Court of Appeals in Cincinnati in January 2009 overturned a lower court ruling that had dismissed the Pattersons' case. The appeals court held that despite implementing several proactive programs to combat harassment and bullying, a “genuine issue of material fact” remained as to whether the Hudson, Mich., school district's actions were “deliberately indifferent,” one of the required elements to establish a violation of Title IX.

The 2-1 ruling said after the cycle of harassment against the teen intensified in ninth grade, “Hudson's only response was to employ the same type of verbal reprimands that it had used unsuccessfully in response to the sixth- and seventh-grade harassment,” steps that “were clearly unreasonable in light of the known circumstances.”

The appeals court ordered the case returned to district court, where a federal jury in March awarded $800,000 to the family. An attorney for the school district could not be reached for comment as to whether an appeal is planned.

Elsewhere, the parents and sister of 14-year-old Christopher David Jones of Crofton, Md., who was surrounded and beaten to death by gang members as he rode his bike home, filed suit last week against the Anne Arundel County Board of Education and others. A school administrator who had promised to take several measures to protect Christopher against gang member threats failed to take any action, said the family's attorney, Richard L. Jaklitsch, of the Upper Marlboro, Md.-based Jaklitsch Law Group. A school district spokesman had no comment.

Bullying is “one of the major, top issues in schools,” said Cheryle Mangels, executive director of the Denver-based Colorado School Districts Self-Insurance Pool.

“I think school districts are extremely concerned about it and are paying a great deal of attention to it,” said Nancy Sylvester, managing director, public entity and scholastic division, for Arthur J. Gallagher Risk Management Services Inc. in Baton Rouge, La. “The effort (to address the issue) is much more concentrated now than ever before.”

“It's a very, very big concern,” agreed Lee Gaby, executive director of the Athens, Ga.-based Public School Risk Institute Inc. The Massachusetts incident and the Michigan case, along with other bullying incidents, “all combined may have served to reawaken an interest in finding what's been referred to as a systemic solution” to the problem of bullying, he said.

Internet access has exacerbated the problem. Communications can be sent anytime “with the push of a button,” said Philip D. Burns, president of Tulsa, Okla.-based Sytech Research Inc., a psychological research firm. “The consequences now are far more dire due to the instant public humiliation that this type of electronic bullying can bring to the equation,” he said. “It's far more devastating on the kids.”

In a 2005-2006 study of 7,000 sixth- through 10th-grade students by the Rockville, Md.-based National Institute of Child Health and Human Development, 36.9% reported they have been victims of verbal bullying, 32.1% rumor spreading, 25.8% social exclusion, 13.2% physical bullying and 10.1% cyber bullying.

Among victims of “traditional” bullying, 17.8% also reported online victimization; but 95.1% of cyber victims said they also were victims of traditional bullying.

While there were no reports of litigation by Ms. Prince's parents, more litigation stemming from bullying is expected. “We're not seeing a lot of it, but I think that will increase,” Ms. Mangels said.

Jean Demchak, Hartford, Conn.-based global education practice leader at Marsh Inc., said the tendency to sue in such cases has increased as parents have become aware of their rights. “Litigation will increase in this area based on the historical perspective we have of similar incidents,” she said.

State law in many cases provides school districts with immunity and such litigation is more likely to be brought under federal law, as in the Michigan case, observers say.

“There's absolutely very likely to be a proliferation of these cases brought,” said Katie Anderson, senior counsel with law firm Strasburger & Price L.L.P. in Dallas.

The Michigan damage award “was really shocking,” said Christine Lueders, Chicago-based senior vp in the Willis Pooling Practice, a unit of Willis North America. “It really says to the schools that even though they have a policy” and take some actions against individuals when bullying occurs, the school district still may be held liable for failing to create a safe environment for the student.

School districts are charged with the responsibility “of taking action and making sure it's effective,” said Ms. Anderson. “They can't just do something and say, "Look, we did something.' They have to check and make sure it worked.”

When a landmark case such as the one in Michigan is successful, plaintiffs attorneys will try to set the same precedent elsewhere, said David Ruiz, employee benefits and risk manager for the Martin County School district in Stuart, Fla.