School District Not Liable for Alleged Failure to Prevent Bullying: Morgan v. Town of Lexington, 823 F.3d 737 (1st Cir. 2016)

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Pierce Davis & Perritano successfully defended the Town of Lexington against claims of civil rights violations arising from the alleged failure to prevent school bullying. The First Circuit Court of Appeals recently upheld the dismissal of a civil rights suit brought against the Town by a seventh-grade student who alleged he was assaulted by a group of other middle school students as part of an initiation into their “Kool-Aid club.”  The brief assault involved punching and kicking outside the school building, and was recorded on a cell phone video by another student.  Thereafter, the plaintiff reported the assault and contends he was retaliated against by the perpetrators for getting them in trouble.  These subsequent acts of retaliation included tripping, pushing, and knocking over the plaintiff, as well as pulling down his pants in public.  The plaintiff also alleged he was bullied by Facebook comments created by a student who did not attend the Middle School.   The plaintiff left school due to the harassment, then later re-enrolled, after briefly attending another school.  The plaintiff was treated by a mental health professional for PTSD, fear and anxiety, which he attributes to the bullying.  He missed 112 days of school purportedly due to these conditions.

The Circuit decision authored by Chief Judge Sandra Lynch was issued just three weeks after oral argument.  The Court agreed with the Town’s position that the failure to prevent or respond to peer-on-peer school bullying did not violate the plaintiff’s constitutional right of substantive due process.  The Court’s decision focused on the lack of causation between the school’s conduct and the harm allegedly suffered by the plaintiff, as well as the lack of any allegations that “shock the conscience” that are required for such a claim.  The Court also addressed the so-called “state created danger” theory, but ruled the plaintiff’s allegations fall well short for such a claim because the failure to stop bullying is not itself the creation of the danger.  Lastly, the Court also noted that the plaintiff’s last-minute oral argument maligning the School Resource Officer for going to the plaintiff’s house when he refused to attend school did not create constitutional liability because the government has a legitimate interest in enforcing truancy laws.

The First Circuit also rejected the plaintiff’s Title IX claim that he suffered from discrimination “based on sex.”  While the Court conceded that pulling down a victim’s pants may be viewed as harassment “on the basis of sex”; in this case “no such inference is plausible.”  Instead, the Court viewed the pants-pulling as “clearly to be an adjunct to the bullying on the basis of other considerations.”  The Court noted that the plaintiff was wearing gym shorts under his pants that were pulled down, so his skin was never exposed.  The Court then distinguished the case law from other jurisdictions depicting more egregious sexual hazing as not factually analogous to the circumstances of this case.   

This decision in favor of the Town reinforces the body of law that narrowly interprets the substantive due process rights afforded to students who experience bullying or harassment by classmates.  A school’s failure to prevent peer-on-peer bullying does not ordinarily rise to the level of a constitutional violation of a student’s civil rights.  Nor does bullying conduct, which included isolated incident of pulling down a victim’s pants, transform that conduct into harassment “based on sex” to support a Title IX discrimination claim.  

Published in PDP’s Developments in Municipal Law Fall 2016 Newsletter.