By Perry Zirkel
Principal, November/December 2014

Student suicide is a tragedy that continues to persist, along with the ensuing increase in the frequency of liability litigation. This column has provided successive snapshots of the outcome trends in the case law in the May/June 1996 and May/June 2006 issues. Here, I examine the court decisions in the intervening eight years. As the following case and the accompanying question-and-answer discussion reveal, another increasingly important issue for principals—bullying—looms large in the factual circumstances of these cases. The legal question is whether this combination results in inevitable school liability.

The Case¹
When Montana Lance enrolled in kindergarten in Lewisville, Texas, the school district’s multi-disciplinary evaluation team determined that he was eligible for special education based on his lisp, dyslexia, and ADHD. He received speech therapy, dyslexia services, a behavior intervention plan, and counseling.

When Montana was in second grade, his mother informed the school that he was “making verbal statements about hurting himself at home.” A full psychological evaluation determined that Montana was eligible under the classification of emotional disturbance.

Montana’s peers persistently picked on him at school. For example, while in third grade, another student verbally provoked Montana, who responded by pushing him while saying, “I’m not afraid of you.” The other student shoved Montana down into a stack of chairs. The assistant principal investigated, gave both boys an in-school suspension, and talked with them about rebuilding their relationship.

A month later, when two students bullied him verbally and physically, Montana pulled out a pocketknife and told them to back off. The assistant principal interviewed everyone in the immediate area and gave a disciplinary consequence to all three students. In light of the weapon, the district placed Montana in an alternative program for 10 days. Montana’s mother protested that this action was not only too harsh in light of his self-defense justification, but also too much of a reward because Montana enjoyed escaping the bullying at his school.

While at the alternative program, Montana told the teacher that he wanted to kill himself. The teacher informed the counselor, who met with Montana for approximately an hour before assessing the lethality of his ideation as low. He followed up with Montana, and alerted his mother. Montana’s parents arranged for him to meet with a private psychologist.

When Montana returned to his home school, a student called him a name. When he told the student to stop, the student shoved him into the wall. Montana stormed off and sat alone at an empty table. Later in the day, a substitute teacher sent Montana and another student to the principal’s office for “talking” and “using profanity.”

As required of all students sent to the principal’s office, Montana was allowed to use only the bathroom in the school nurse’s office. After Montana didn’t emerge after a prolonged time, the nurse asked if he was OK, and he replied, “I’ll be right out.” When he stopped answering her inquiries, the nurse called the custodian because she didn’t have a key to unlock the door. The custodian used a screwdriver to open the bathroom door, only to find Montana hanging from his belt, which he had fastened to a metal rod in the ceiling. He was pronounced dead upon being transported to the hospital.

His parents filed a liability suit against the district in federal court. Their primary claims were Section 1983 for violation of 14th Amendment substantive due process, and Section 504 of the Rehabilitation Act. The federal district court granted the school district’s motion for summary judgment. The parents filed an appeal with the Fifth Circuit Court of Appeals.

What do you think was the judicial outcome of the appeal based on Section 504 and 14th Amendment substantive due process?
In Estate of Lance v. Lewisville Independent School District (2014), the Fifth Circuit affirmed the denial of the parents’ disability discrimination claim under Section 504 premised on peer harassment. Although agreeing that such a claim under Section 504 does not require denial of the IDEA’s “free appropriate public education” requirement, the court concluded that the parents had not established the essential elements for such a claim. The parents did not provide evidence that the officials’ response to the harassment was clearly unreasonable. The parents’ expert admitted that the district’s anti-bullying program, which included employee training, student assemblies, and ongoing counselor efforts, was “appropriate and up to national standards.” Moreover, the record showed the district’s “pattern of active responses to incidents involving Montana.”

Following the precedents of judicial deference to school authorities in such cases, the Fifth Circuit commented: “Section 504 does not require that schools eradicate each instance of bullying from their hallways to avoid liability. Judges make poor vice principals.”

Similarly following precedent, the Fifth Circuit rejected the applicability of the various theories, including “state-created danger,” under 14th Amendment substantive due process. The court concluded that the district did not create the danger and was not deliberately indifferent to it.

Is this decision representative of other recent parent liability suits in the wake of student suicide, including those based on negligence?
Thus far, parents have not conclusively won any of the published decisions, which serve as the official or unofficial precedents. Moreover, some of these suits have resulted in the same outcome as the Lance case. The most recent examples are the 10th Circuit’s 2013 decision in Long v. Murray County School District, which included various federal and state claims, and a federal district court’s 2014 decision in Moore v. Chilton County Board of Education, which summarily cited lack of deliberate indifference in denying the Section 504 claims of disability-based harassment.

In some of these cases, the ruling was inconclusive for one or more of the parents’ multiple claims. “Inconclusive” in this context means that the court either denied the district defendants’ motion for dismissal or summary judgment or denied the parents’ motion for such a pretrial victory, thus preserving the matter for further proceedings.

Such inconclusive rulings often lead to settlements, where the parents obtain at least partial payment. For example, in Carmichael v. Galbraith (2014), the plaintiff-parents alleged that their middle school son’s suicide was attributable to bullying at school based on his perceived homosexuality. The lower court dismissed their federal liability claims premised on discrimination. On appeal, the Fifth Circuit upheld the summary denial of their 14th Amendment equal protection claim but reversed the dismissal of their Title IX gender-based harassment claim. However, their leverage for settlement is limited because the ruling was based on the pervasiveness element of the peer harassment without reaching the issue of whether the district’s response constituted deliberate indifference.

Does this judicial trend extend to cases of bullying connected with threatened or attempted suicide?
Yes, both the factual and legal patterns reflected the same basic variations of the general theme. The facts revealed that the bullying victims were often students with disabilities or other protected categories, such as race or gender, and that the legal claims usually relied on more than one theory, with the judicial outcomes lacking a ruling conclusively in favor of the plaintiff family but in some cases preserving one or more claims for further proceedings or possible settlement.

For example, in Sutherlin v. Independent School District No. 40 (2013), a federal district court in Oklahoma granted the school’s motion for summary judgment for the parents’ 14th Amendment substantive due process and state law breach of contract claims, but denied such disposition of their claims under Section 504 and 14th Amendment equal protection. In Sutherlin, a district with a zero-tolerance policy on bullying allegedly had done nothing to stop constant disability-based bullying of a middle school child with Asperger’s syndrome and a specific learning disability that led to his suicidal depression.

Conclusion
The continuing trend in the case law concerning the liability of school districts and their officials in the wake of attempted or actual student suicide provides several legal lessons. First, suicide and the causal connection to bullying is increasingly and alarmingly evident. Second, although the frequency of the litigation has not abated, the net balance of the outcomes is in favor of the district defendants.

Although the cases that have had inconclusive outcomes serve as tempering partial exceptions, the predictions of a landslide of liability for student suicides have proved to be largely empty threats. My conclusion in the May/June 2006 column applies again today: “The litigation to date should not be the source of a paralyzing fear or an anesthetizing immunity.”

Instead, the primary reason to take serious and systematic steps to reverse the tide of both suicide and bullying in our schools is professional. As the courts recognize, in our increasingly turbulent and at times violence-prone society, schools cannot guarantee student safety. Nevertheless, effective leadership for a safe learning atmosphere is both ethically and practically a prerequisite for attaining the mission of the public schools.

Although a proactive approach lessens the likelihood of liability and litigation, the real reason for a systemic focus on school culture is to reduce not only suicide and bullying, but also other pernicious indicators, including absenteeism, alienation, boredom, and special education overidentification. Thus, instructional leadership and student suicide have an inevitable and potentially inverse connection.

Perry A. Zirkel is University Professor of Education and Law at Lehigh University.

1. Because the court’s decision arose on the defendant-district’s motion for summary judgment, the “facts” are merely allegations construed in the plaintiff-students’ favor.

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