Keywords: Title II of ADA, Rehabilitation Act Section 504, bullying, harassment, public school
The plaintiff brought these claims on behalf of her grandson who attends school in Blount County. Plaintiff’s first claim was that the school violated Title II of the ADA and Section 504 of the Rehabilitation Act because the school did nothing to stop the bullying of her grandson by other students on account of his disabilities.
The Court applied a five-factor test in evaluating the actions taken by the defendant Board of Education to determine whether there was a violation of the ADA and the Rehabilitation Act. While the Court agreed that plaintiff’s grandson was an individual with a disability and that the Board of Education knew other students were harassing him, it did not find the defendant to be liable because there was no deliberate indifference by the defendant toward the plaintiff’s grandson.
Plaintiff is the legal guardian of her grandson, a minor child, who is an individual with disabilities that attends public school in Blount County. He has had an individualized education plan in place since the second grade. He has been subjected to bullying by his classmates since the first grade up to the time of the filing of this case when he was in the eighth grade. Plaintiff had met with the school officials on numerous occasions because of the bullying that her grandson was facing in order to make the school aware and put a Student Safety Plan in place to alleviate the bullying. There were specific steps for all parties to follow under the Student Safety Plan, and the Safety Plan was revised at least once since it had been created to adjust to the needs of the grandson.
The plaintiff alleged a violation of Title II of the Americans with Disabilities Act, which prohibits a public entity from excluding from participation in or denying benefits of the services, programs, or activities of the public entity to persons with disabilities. Section 504 of the Rehabilitation Act prohibits the same for entities receiving federal funds. The defendant board of education filed motions for summary judgment on all of the plaintiff’s claims.
Is the Defendant Board of Education liable for not preventing disability-based bullying of the Plaintiff’s grandson?
The analysis of ADA and Rehabilitation Act claims is similar, so the Court discussed them at the same time. The Court applied a five-factor test, the Davis standard, to determine whether liability would attach to the defendant in this case of disability-based peer-on-peer harassment. Davis was a case from the Supreme Court that addressed liability for school boards of education under Title IX for peer-on-peer sexual harassment, that has been extended to evaluating liability in the case of harassment based on disability. The Davis standard requires: (1) the individual has a disability, (2) the individual was harassed because of this disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of the individual’s education and created an abusive educational environment, (4) the defendant board of education knew about the harassment, and (5) the defendant was deliberately indifferent to the harassment.
The Court found factors 1 and 4 satisfied, that plaintiff’s grandson was an individual with a disability and that the defendant board of education was aware of the bullying to which he was being subjected, without discussion. The Court found factor 2, that the plaintiff’s grandson was being bullied based on his disability fulfilled as well, because there was a reasonable presumption that his disabilities made him a target for peer harassment. For factor 3, the Court found that there was severe and pervasive harassment of the plaintiff’s grandson that effectively denied him the equal educational opportunities available to other children because of the length of time of the bullying and that it had a negative psychological impact on him.
Factor 5 is where the plaintiff’s case failed. The Court did not find that the defendant board of education was deliberately indifferent to the harassment. The Davis standard requires “deliberate indifference” only be found in this context where the school’s response, or lack thereof, is “clearly unreasonable in light of the known circumstances.” The Court said that it was not enough to show only that the defendant board of education just did not succeed in stopping the harassment.
The defendant board of education filed motions for summary judgment on all of the plaintiff’s claims. Taken in the light most reasonable to the plaintiff, the court did not find any issue of material fact that would allow the case to move beyond summary judgment. This means that there was no jury, and the judge decided that there was no evidence that would allow a reasonable jury to return a verdict for the nonmoving party, or the plaintiff in this case.
After reviewing all of the evidence in the case, the court based its decision to grant summary judgment in favor of the defendant because there was no evidence that the school was deliberately indifferent to the harassment of plaintiff’s grandson. Since the claim failed the five-factor Davis test, the Court granted summary judgment for the defendant.
“Deliberate indifference” is a high burden to prove in these cases. Boards of Education are not required under federal law to provide an environment that is free of disability-based harassment or bullying. Boards have to take reasonable steps to prevent and protect students from bullying, but even if measures taken have little effect, they are not likely to rise to the level of deliberate indifference.
Some states, however, have adopted specific protections. For instance, in Alabama, anti-bullying, or harassment laws specifically protect certain classes of people, including people with disabilities. The state includes cyberbullying as a form of harassment. In this case, pursuing a suit under the Alabama statute likely would not result in a successful outcome in terms of finding liability for the school, because the Alabama statutes only cover policy implementation and reporting requirements. In Florida, people with disabilities are not specifically covered by its anti-bullying law. In Georgia, there are no specific groups listed under the State’s anti-bullying law. But under Section 20-2-751.4 of the Georgia Code, bullying can be an act that has the effect of substantially interfering with a student’s education. For more information: State anti-bullying laws at https://www.stopbullying.gov/laws/