I’ve written and spoken frequently on how school districts can sometimes be held accountable for the actions of one student toward another. A recent case out of Alabama with some truely horrific facts seems to run counter to prevailing law.
The prevailing law holds that school officials can be liable under Constitutional arguments if the District took affirmative steps that increased the danger of foreseeable harm (known as the “state created danger” rule). The school can also be liable if the harassment was based on gender, disability, race or ethnicity if the school knew of the harrassment, the harassment was severe or pervasive, it was sufficient to cause an educational detriment to the victim, and the school reacted to the bullying with “deliberate indifference.”
In this case, known as Hill v. Madison Cty. Sch. Board, the school district had a rule not to punish misbehavior of a student unless it could be “corroborated” by a third party. Thus, a student who claimed she was bullied or otherwise harassed had no support from the school unless she could provide a witness or some other form of evidence of the maltreatment.
A special education aide at the school became aware that a male student who had a history of inappropriate sexual behavior was targeting some of the special needs female students at the school. Because of the school “corroboration” rule, the aide believed that the offending boy could not be disciplined unless she had witnesses to his sexual misconduct.
Thus, when a 14-year old female student with special needs informed her that the boy was harassing her and seeking to have sex with her in the boys’ bathroom, the aide told her she should agree to meet the boy in the bathroom for sex, where she and another teacher would be hiding, so they could catch him in the act.
At first the girl said “no”, but the aide convinced her she would be safe and that they would stop it before it went too far. The aide then went with the female student and reported her plan to the Vice Principal. He did not instruct them to call it off, nor did he report it to his superiors.
The female student then went with the boy, but he took her to a different boys’ bathroom than the aide and teacher were hiding in. She fought him off for a while but ultimately was anally raped. Needless to say she was deeply traumatized.
You would think these facts would fit squarely within the “state created danger” Constitutional claim, as well as amount to a severe attack, known to the school, and to which the school acted with deliberate indifference to the danger. However, the case was thrown out on summary judgment by the federal District Court in Alabama.
The parents are appealing to the 11th Circuit and the federal Department of Justice has written a brief to the Court in support of the special needs student. You can read the brief yourself here: http://media.al.com/news_impact/other/doj%20amicus.pdf
You can read a news report of the case here: http://www.al.com/news/index.ssf/2014/09/feds_side_with_14-year-old_gir.html
One of the more appalling comments from the school vice principal is that the victim was “responsible for herself once she entered into that bathroom.” This comment should never be made about any victim of rape, let alone a young girl in the special education community.
I have read reports of studies showing that girls with special needs are up to 8 times as likely to be sexually abused at school as compared to other girls. Sadly, I am not suprised. I am suprised, however, that such girls cannot obtain protection from the federal courts on facts as egregious as the ones here. I am quietly confident that the Circuit Court will overturn the dismissal and send the case back for trial.
If your child is harassed at school, remember to report it to teachers and administrators. People are often reluctant to report, but the District’s knowledge of the abuse is critical to holding them responsible if they fail to take effective measures in response.