Nsiaaa 2014

Legal Update for NSIAAA Karen Haase (402) 499-547 khaase@hslegalfirm.com H & S School Law @KarenHaase

Legal Issues Today  Hazing  Bullying  Locker Room Supervision

Hazing

Hazing “any activity by which a person intentionally or recklessly endangers the physical or mental health or safety of an individual for the purpose of initiation into, admission into, affiliation with, or continued membership with any organization…”

Hazing Includes “whipping, beating, branding, forced and prolonged calisthenics, prolonged exposure to the elements, forced consumption of any food, liquor, beverage, drug, or harmful substance not generally intended for human consumption, prolonged sleep deprivation‌â€?

Hazing Includes “…or any brutal treatment or the performance of any unlawful act which endangers the physical or mental health or safety of any person…”

Craig v. Portage Township Sch. (Ind. 2013)

   

Allegations of sex harassment on bus Driver couldn’t see Student: “can anything be done?”

Court Dismissed Suit: • • •

School did not know When school discovered took action Failure to train didn’t cause injury

Davis v. Carmel Clay Sch. (7th Cir. 2014)

 Boys basketball team • • • •

“gooching” Dragged freshman into shower Grabbed and flashed Bus incident

 Court Dismissed Suit: • School did not know • When school discovered took action • Need for training not evident

Mathis v. Wayne Co. BOE (Tenn. 2011)

 Boys basketball team • “lights out” • “blindfolded sit-ups” • “pencil” and “marker” incidents

 Court Ruled in Favor of Plaintiffs on Title IX Claim • Coach knew of “horseplay” • School deliberately indifferent through coach’s inaction

C.H. v. Los Lunas Sch. Bd. of Educ., (NM 2012)

 Plaintiff on HS football team • Seniors held down and “physically and sexually battered” him • 2 years prior, another highly publicized incident of hazing in NM involving HS football team

 Court: prior incident gave defendants notice of possible hazing

How Common is Hazing?

National study commissioned by North American Interfraternal Foundation (NIF) • 48% of college athletes reported that they had been hazed in high school • Male and Female athletes roughly equivalent (Types of hazing differed) • 66% reported they’d observed hazing of others in high school sports

Hazing We’ve Seen in Nebraska  “Paddling” by upper classmen  “Freshmen eat a pepper” day  “Russian dick-lette”

Bullying Litigation

Rosario v. Clark County Sch. Dist.

(D. Nev. 2013)

 Basketball student tweeted after last game of the season • • • • • • •

[Principal] is a bitch I hope coach brown gets f*cked in the *ss by 10 black dicks Now I can tweet whatever I want and I hope one of ya’al m*therf*ckers snitch on me F*ck coach brown’s bitch *ss Finally this b*tch season is over Oh yeah and [AD]’s square *ss And [assistant coach] is a p*ssy *ss n*gg* tryin to talk sh*t

Rosario v. Clark County Sch. Dist.

(D. Nev. 2013)

 Targeted staff filed discipline complaints and “victim impact statements” against student  Student was suspended and eventually assigned to a different high school  Student sued

Rosario v. Clark County Sch. Dist.

(D. Nev. 2013)

 First Amendment Claims – Student argued free speech – School argued no protection because content obscene  Court: – Only one tweet “obscene” – Punished for all tweets – Must establish that this speech caused material and substantial disruption

Rosario v. Clark County Sch. Dist.

(D. Nev. 2013)

 Fourth Amendment Claims – Student claimed unlawful search of twitter account  Court: – No “search” – No expectation of privacy – Poster assumes risk that remarks will be made public

Rosario v. Clark County Sch. Dist.

(D. Nev. 2013)

 Assault and Battery Claims – Coach threw basketball in student’s face – Assistant coach supported  Court: – Basketball players assume risk of normal physical contact, not basketballs thrown in face

M.D. v. School Bd. Of Richmond (6th Cir. 2010)

• African-American Kdg student bullied

by Hispanic peers – “repeatedly and continuously directed vulgar and offensive racial epithets” at student – Physically assaulted him – Stole his property – Called him “gay”

M.D. v. School Bd. Of Richmond (6th Cir. 2010)

• Mom reported bullying to school, asked for copy of policy • School staff routinely told parents staff could do more that speak to bullies • Vice Principal: “I can only punish within limits of my authority. I can’t control what kids do.”

M.D. v. School Bd. Of Richmond (6th Cir. 2010)

• In April, Principal agreed to “personally address” the situation • Parents withdrew from school • Principal met with “bullying specialist” to develop plan • Parents refused to return student to school

M.D. v. School Bd. Of Richmond (6th Cir. 2010)

• Parents sued under Title VI (race) and IX (sex) • Court: – “The issue here is not whether Plaintiff has suffered severe bullying on account of his race and sexual orientation at the hands of fellow students. . .

M.D. v. School Bd. Of Richmond (6th Cir. 2010)

• Court: – “The pivotal issue is whether Plaintiff states a claim against [the school] based on ill-treatment by fellow students.”

– Although staff did nothing but speak to offending students for two months, principal was willing to get involved – School not deliberately indifferent

Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)

 Student with Aspergers subjected to bullying by peers  Alleged that school staff did not stop and also called her “crazy”  Sued in federal court

Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)

 Failure to protect – Compulsory attendance laws do not create duty for school to protect from third party bullies – School’s policy did not undertake this obligation – Claim dismissed

Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)

 Equal protection claim – School: student treated like any other student – Parents: 32 documented incidents of bullying – Court: difference in treatment without rational basis

Sutherin v. Indep. Sch. Dist. No. 40 (N.D. Okla. 2010)

 Section 504 claim – School: no evidence that school staff treated student badly because of disability – Court: other students treated this student badly because of disability; school was deliberately indifferent to student misconduct

Phillips v. Robertson County Bd. (Tenn. Ct. App. 2012)

 Student with Asperger syndrome • Private counselor sent letter • Parent constantly reporting bullying and asking for help

• School developed system for kid • Preferential seating • Card system to signal when feeling bullied or stressed

Phillips v. Robertson County Bd. (Tenn. Ct. App. 2012)

 Teacher left student classroom unsupervised • Student struck in the eye by bully • Sustained permanent damage  Teacher testified • Didn’t know about disability • Didn’t know about accommodations  Court ordered $300,000 judgment

Kendall v. West Haven Dep’t. of Ed. (Conn. 2000)

 Elementary special ed student injured by another student • Parents called and reported prior incidents to assistant principal • Assistant principal said she would take care of it • Assistant principal then called out of building

Kendall v. West Haven Dep’t. of Ed. (Conn. 2000)

 The student seriously injured when the bully attacked him in the school cafeteria.  Court awarded $67,000 in damages  Found the assistant principal personally liable

G.M v. Dryceek Joint Elem. Sch. (Cal. 2012)

 Student bullied 5 times in 6 months • After first incident teacher said she’d watch the situation • After similar incident teacher and counselor met with bullies • Assistant principal met with bullies • Bully punched victim in face and received 5-day suspension

G.M v. Dryceek Joint Elem. Sch. (Cal. 2012)

 Court: school officials took action aimed at stopping the harassment each time  Deliberate indifference requires that district know of harm and failed to act

Cyber/bullying Responses     

Keep “Responding and Reporting” separate in your mind (and your staff’s mind) Focus on Small Stuff DOCUMENT, DOCUMENT, DOCUMENT Look for nexus Don’t make promises you can’t keep

Locker Room Supervision

Doe v. Rich Central H.S. (Ind. 2012)

 Boy complained of being bullied in locker room  Security camera caught staff talking  Boy assaulted by teammates  Parents sued  Case settled

Creekbaum v. Livingston Parish Sch. Dist. (LA 2011)  Three football players urinated on freshman’s locker  Victim sued claiming emotional distress and negligent supervision  Coach: never had a problem before

Legal Update for NSIAAA Karen Haase (402) 499-547 khaase@hslegalfirm.com H & S School Law @KarenHaase