Case tests whether school districts must protect students from bullying under Pa. law (3)

This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.

Do school districts in Pennsylvania have a legal obligation to protect students from discriminatory harassment and bullying?

A court case filed on behalf of a bullied student at William C. Bryant Elementary School in Philadelphia seeks to clarify whether the state’s Human Relations Act protects students from peer discrimination that results from District negligence, as opposed to direct institutional discrimination.

The Court of Common Pleas threw out the case against the School District of Philadelphia earlier this year, but that decision is being appealed.

The Pennsylvania Human Relations Act is the state’s main anti-discrimination statute and ensures “that equal educational opportunity, irrespective of race, color, religious creed, ancestry, disability, sex or national origin, must be provided.”

However, no appellate court in Pennsylvania has yet considered how the act applies to school districts when it comes to bullying. That leaves students and families the option of going to federal court, which can be more costly and difficult.

If the appeal in Pennsylvania is granted, the decision may set a precedent that makes it easier for families seeking recompense for discriminatory abuse in school.

“If the Court of Appeals upholds the trial court’s decision that the Pennsylvania Human Relations Act puts no obligation on school districts to stop discriminatory harassment, then there will be no protections under state law for kids terrorized based on sex and race and assaulted in school and verbally harassed,” said Kevin Golembiewski, a lawyer with Berney & Sang, a local civil rights law firm. “There will be nothing requiring school districts to stop that, other than bad press.”

The case goes back to a 2014 discrimination complaint against the District, a former principal, and a former teacher at Bryant Elementary School. A woman filed the complaint with the Pennsylvania Human Relations Commission on behalf of her son, who was persistently harassed by three older students in 2011 because of his race and gender nonconformity, and she alleged that the District, principal, and teacher failed to take corrective action.

As a result, according to the complaint, the abuse escalated and the 8-year-old boy was sexually assaulted by the three students in a school bathroom.

The perpetrators — two 10-year-olds and one 11-year-old — were suspended for a week, required to undergo counseling, and faced multiple charges that included attempted rape, indecent assault, and unlawful restraint.

As for the victim, after the attack he “attempted suicide multiple times; has spent countless months in hospitals and residential facilities; and has developed post-traumatic stress disorder, attention deficit hyperactivity disorder, and an anxiety disorder,” the complaint said. He now “requires special education services to benefit from school.”

The case has been in the Commonwealth Court system for three years, with the plaintiffs winning procedural arguments to move it forward. But in October 2017, Judge Frederica Massiah-Jackson declared the matter a “nonsuit,” giving the plaintiffs the chance to appeal to the state Superior Court.

The District’s policies on bullying have also drawn the attention of the Office of Civil Rights in the U.S. Department of Education, which opened an investigation in November 2017 into a complaint that children with disabilities were bullied and discriminated against while school officials failed to take proper action. That investigation is continuing.

Golembiewski said his firm receives calls about bullying all the time from parents throughout the state.

A favorable court ruling would require Philadelphia, and other districts, “to really sit down and actually address its policy in a really serious way,” said Golembiewski — “something it really hasn’t done as long as I’ve been around and hearing about kids’ experiences.”

Other states, such as Arizona and New Jersey, have adopted clear laws to protect children in these circumstances, while Pennsylvania has yet to do so outright, said Golembiewski.

Local advocacy law firms — including the Education Law Center, Public Interest Law Center, Juvenile Law Center, and PA Disability Rights — have filed briefs in support of the appeal.

According to the Education Law Center’s brief, “if this court affirms the lower court’s nonsuit, it will be telling school districts that they will not face consequences under the PHRA when they fail to intervene to prevent discriminatory bullying from escalating. … Without an affirmation that the PHRA recognizes claims of indirect discrimination against school districts that fail to address student-to-student harassment, Pennsylvania’s children will be unable to hold their schools accountable under state law for willfully turning a blind eye to their torment.”

Lizzy Wingfield, a Stoneleigh Foundation emerging fellow at the Education Law Center, said, “It fits our priorities to make sure some schools are intervening with bullying before it escalates” and it’s important for the courts to “see the broader implications that apply for vulnerable students.”

The District has made efforts to prevent bullying of any kind in schools.

"At the School District of Philadelphia, we take each and every report of bullying very seriously,” wrote District spokesman Lee Whack in a statement. “Bullying has been plaguing communities nationwide and we are committed to confronting it head-on.”

Last revised in December 2016, the District’s policy includes a hotline (215-400-SAFE) that students and families can call if school administrators fail to act on complaints of bullying. The policy also requires that complaints of bullying be investigated promptly and thoroughly and corrective action taken when allegations are substantiated.

In addition, the policy must be disseminated throughout school communities at least once a year and reviewed annually with staff, students and families; recommendations for change should be brought to the School Reform Commission.

The policy will remain in effect under the new school board that takes control of the schools July 1, unless the board decides to update or change it.