Bullying and Legal Liability

Michael S. Carroll

o
3

Daniel P. Connaughton
Patterson v. Hudson Area Schools and Malnar
U.S. Court of Appeals, 6th Cir.
551 R3d 438
January 6, 2009
he parents of a student who
was subjected to persistent
harassment and bullying over the
course of several years brought
aTitle IX suit against the school
district and its superintendent for
failing to take reasonable action to
halt or prevent such bullying.The
defendants moved for summary
judgment, which was granted by
the U.S. District Court for the Eastern District of Michigan and subsequently appealed by the plaintiffs.

Facts of the Case

The plaintiff student (referred to as
DP) began to experience various
forms of harassment and bullying,
both verbal and physical in nature,
during his sixth-grade school year.
After DP and his parents reported
the harassment, a school administrator responded by stating, "Kids
will be kids, it's middle school"
(Patterson v. Hudson Area Schools
and Malnar, 2009, p. 439). DP estimated that he was called derogatory names as many as 200 times

Disclaimer
The comments regarding the
case presented here are generalized thoughts and not hard
law. The cases in Law Review
are illustrative of situations
that can happen and how the
courts have responded to the
., circumstances. The generalized
thoughts may not apply or be
proper in all states and jurisdictions and under all circumstances. Finally, it is important
to understand that the tips
provided may not apply in your
state or jurisdiction.

/OPERD Volume 81 No. 7 September 2010

pa

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during seventh grade and began

to withdraw and isolate himself
from his classmates. At one point,
students broke into DP's gymnasium locker, urinated on his clothing, and threw his shoes into a
toilet. His locker was also covered
with sexually oriented graffiti.
This harassment and bullying was
reported by DP and his parents,
and the school took action against
the known perpetrators. While
this had the effect of stopping
those who were reported, other
tormenters continued to bully DP.
Two months after the locker incident, after a Friday-night, juniorvarsity baseball practice, DP was
sexually assaulted by a teammate
in the locker room. He informed
the coach of the team, yet the assailant was allowed to play in a
game the following day so the
team would not have to forfeit.
After the sexual assault, the coach
held a team meeting in which he
instructed the student-athletes, in
the presence of DP, to "not joke
around with guys who can't take
a man joke" (Patterson, p. 443).
Due to the continued harassment
and bullying, DP transferred and
finished high school through
placement courses at a Catholic
elementary school and a local college. DP's parents, the Pattersons,
brought suit against Hudson Area
Schools (Hudson) and the Superintendent of Schools for Hudson
(Malnar), alleging that (1) Hudson
violatedTitle IX of the Educational
Amendments of 1972, (2) Hudson
violated DP's equal protection
rights, and (3) the superintendent
failed to properly train and edu-

(0

&
ro
cate staff on how to handle harassment issues.

U.S. District Court

The defendants moved for summary judgment, which was
granted for all three claims. Summary judgment may be granted
in cases when there is no genuine issue of material fact and in
which one party, as a matter of
law, is entitled to a pretrial judgment. Title IX, which bans gender
discrimination in schools, can
also be used to support a claim of
student-on-student sexual harassment, as in this case. In examining
theTitle IX claim, the district court
used the three-part test developed
in a similar case, Davis v. Monroe
County Board of Education (1999).
Under this test, in order to prove
a sexual harassment claim under
Title IX, a plaintiff must demonstrate that (1) the sexual harassment was so severe and pervasive
that it deprived the student of
access to educational opportunities or benefits at school, (2) the
school had actual knowledge of
the harassment, and (3) the school
was deliberately indifferent to the
harassment. Applying this test, the
District Court found that the Pattersons proved the first two parts
of the test but not the third, concluding that the school responded
to DP's complaints of harassment
and bullying and punished the
guilty parties, precluding them
from being found deliberately indifferent. The Pattersons appealed,
claiming that the court erred in determining that the plaintiffs were
not deliberately indifferent.
51

U.S. Court of Appeals

Q)
*i

>
Q)

The only issue before the appellate court was whether the actions
taken by the school were, as a
matter of law, sufficient to preclude the school from a finding of
deliberate indifference. According
to the Davis (1999) case, plaintiffs
can demonstrate a defendant's
deliberate indifference by showing
that their response to the harassment was clearly unreasonable
considering the circumstances.
In this case, the court noted that
DP was repeatedly bullied over
a period of years and that the
school responded to this bullying by verbally reprimanding
those involved. Although these
reprimands typically halted the
harassment from those particular
students, it did not stop other students from harassing DP, which
eventually escalated to the criminal sexual assault. Additionally, it
was noted that the school knew
that their responses were not
effectively and completely halting DP's harassment.The court
concluded that, given the fact that
the school knew that their measures were ineffective yet did not
change them, a reasonable jury
could find their conduct unreasonable and therefore deliberately indifferent. Thus, the appellate court
found the district court's granting
of summary judgment was an error and, therefore, they reversed
the judgment and remanded the
case for further proceedings.
In March of 2010, a federal jury
awarded $800,000 to the Pattersons, although the school district
may appeal the decision (Greenwald, 2010).
Discussion
Although this case did not arise
out of incidents occurring solely
within a sport or recreation context, a growing body of research
shows that peer victimization of
children is relatively common,
especially among those who are
overweight (Storch et al., 2007).
Furthermore, evidence suggests

52

that overweight children may

avoid participation in physical
education classes or extracurricular activities (e.g., sports) to avoid
such weight-related victimization
(Faith, Leone, Ayers, Moonseong,
& Pietrobelli, 2002).This case illustrates that bullying and other
forms of harassment are actionable underTitle IX if schools and
school personnel do not respond
adequately. Of particular concern
in this case was the baseball
coach's attitude toward the bullying, effectively blaming the victim
for not being able to take a joke.
In addition to the $800,000 judgment against the school district,
this case also generated a great
deal of negative publicity for the
district and those involved.The
following risk-management tips
are offered for schools, coaches,
teachers, and administrators for
reducing the occurrence of bullying and harassment in sport,
recreation, and physical activity
programs, as well as a means for
limiting liability.

Risk-Management Tips
1. A strict, zero-tolerance antibullying and harassment policy
should be developed and communicated to all stakeholders.
The policy should consist of a
definition of bullying as well as
examples, including electronic
bullying and harassment via social
networking sites. Students and
sport participants should know
that bullying of any kind will not
be tolerated and will result in
strong disciplinary action.This
policy should meet the approval
of the school district or the organization's legal counsel.
2. Students, teachers, coaches,
parents, and administrators
should all be educated on the dangers of bullying and other forms
of harassment. The Patterson case
illustrates that even some teachers
at the school downplayed the bullying and harassment as normal
joking behavior among students.
Teachers, administrators, and

coaches need to be aware of the

adverse effects of bullying, including depression, social isolation,
and suicidal thoughts.
3. Athletes and participants
should be required to sign a contract stating that they have read
and understand the anti-bullying
policy and agree to refrain from
engaging in any bullying behavior. Communicate that a failure to
abide by the contract may result
in their suspension or even expulsion from program activities or
team play, in addition to other
possible penalties.
4. Strong disciplinary and corrective measures should be taken
for known cases of bullying.The
consequences for such behavior
should be used to dissuade other
students from engaging in similar
behaviors.
5. Ensure proper supervision of
physical education classes, recess,
and after-school or weekend sport
activities. Research has shown
that bullying often occurs in these
settings due to a lack of proper
supervision.
6. Establish an easy-to-implement reporting system for bullying, as well as a protocol for
conducting a fair investigation of
reported bullying behavior.
7. Be aware of anti-bullying statutes that may exist in your state
and make sure to comply with
such legislation.
8. Keep a thorough record of
reported instances of bullying and
of the action taken. Maintain these
records for at least the statute of
limitations in your state.
9. Evaluate the school's or organization's bullying practices and
their effectiveness.The Patterson
case demonstrates that an institution whose response to bullying
has been ineffective but keeps doing the same thing may be found
to be deliberately indifferent and
could be held liable underTitle IX.
10. Additional anti-bullying information may be obtained from
www.stopbullyingnow.hrsa.gov/
Continues on page 56

JOPERD Volume 81 No. 7 September 2010

Law Review
0)

Continued from page 52

adults/, www.schoolsafety.us/, and

www.nasponline.org/.

References
Davis v. Monroe County Board of
Education, 526 U.S. 629 (1999).
Faith, M. S., Leone, M. A., Ayers,
T. S., Moonseong, H., & Pietrobelli, A. (2002). Weight criticism
during physical activity, coping
skills, and reported physical
activity in children. Pediatrics,
110(2), e23.
Greenwald, J. (2010, April 19).
Schools work to reduce liabilities over bullying. Business Insurance. Retrieved May 4, 2010,
from http://www.businessinsurance.com/article/20100418/ISSUE01/304189972*.
Patterson v. Hudson Area Schools
and Malnar, 551 F.3d 438 (6th
Cir. 2009).
Storch, E. A., Milsom, V. A., DeBraganza, N., Lewin, A. B., Geffken,
G. R., & Silverstein, J. H. (2007).
Peer victimization, psychosocial
adjustment, and physical activity in overweight and at-riskfor-overweight youth. Journal
ofPediatric Psychology, 32C\),
80-89.

CO

Michael S. Carroll (michael.s.

carroll@usm.edu) is an assistant
professor in the School of Human
Performance and Recreation at the
University of Southern Mississippi, in Hattiesburg, MS 39406. Daniel P. Connaughton (danc@hhp.ufl.
edu) is an associate professor in
the Department of Tourism, Recreation and Sport Management
at the University of Florida, in
Gainesville, FL 32611.

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