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One does not have to look very far to see the continuing saga of student bullying.  In preparing this article in early April 2014, a Google news search of the term “bullying suicide” revealed yet another student who committed suicide that his parents attributed to bullying. Jeffrey Hulon, Jr., of Pitt County, North Carolina, took his life on Monday, March 31, 2014, leaving a note that said he had wearied of the bullying in his high school, and even alerting his parents that he had been attacked in a school restroom that same day.1

Recent bullying data are equally sobering.  According to the most recent bullying statistics found at the U.S. Government’s well-referenced website: 28% of students in grades 6-12 have experienced bullying, 30% of youth admit to having bullied others, and over 70% of both students and teachers have witnessed bullying in schools.2     The U.S. Government acknowledges that “multiple risk factors”3  are involved in youth suicide and notes the difficulty in establishing a cause-and-effect relationship between bullying and suicide. However, another website, Bullying Statistics, refers two studies, one conducted by Yale University and one conducted in Great Britain that suggest, respectively, bullied students are more likely to consider suicide than non-bullied students and that bullied students account for up to 50% of suicides.4

Against this pressing backdrop, and because so much bullying occurs where kids congregate, i.e., schools, the purpose of this article is to: (1)  examine the Texas definition of bullying, (2) look at legislative requirements for Texas school district policies and procedures, (3) review the legislative requirements for transferring both bullying victims and bullies, (4) consider the perspectives of the United States Department of Education and their impact on bullying, and (5) review court cases, including one decided within the last two months, weighing in on issues of bullying in Texas school districts.  Finally, the article will elicit themes from the court cases that are designed to guide Texas school officials who confront issues of bullying on a daily basis.5


How is Bullying Defined in Texas?

While as early as 2005, the Texas Legislature required public and open-enrollment  charter schools to prohibit bullying in their codes of conduct, it was not until 2011 that the 82nd Texas Legislature  defined bullying  as:   “engaging  in written or verbal expression, expression through electronic means, or physical conduct that occurs on school property, at a school- sponsored or school-related activity, or in a vehicle operated by the district and that:

•       has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; or

•       is sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.”6

Importantly,  to be considered  bullying,  the conduct must also exploit a power imbalance between the perpetrator and victim and must either substantially  disrupt school operations or interfere with the victim’s education.7

Examining this definition yields three observations.  First, bullying must occur on the premises or vehicle owned by the school or at a school-sponsored  or school-related activity to be considered within the purview of the school district.  Second, assuming the jurisdictional, power imbalance, and substantial disruption or interference with the victim’s education elements are met, bullying can stem from either a single-incident (see the first bullet above), or multiple incidents (see the second bullet above).   While attending  a recent professional  development,  I was struck by comments made by more than one school administrator that much “bullying” conduct is not really by definition bullying because the conduct does not include a series of events over time.  However, bullying can constitute a single incident, especially if the student or the student’s property is harmed or the student is placed in reasonable fear of harm to the student’s person or property.   Third, as will be seen shortly, establishing that a student has either engaged in or been the victim of bullying is crucial when determining whether to transfer a bully or a victim of bullying.


What about School District Policies & Procedures?

By not later than the 2012-13 school year, Texas school districts were required to establish policies and procedures that must:  (1) prohibit bullying; (2) prohibit retaliation against any person “who in good faith provides information” regarding bullying incidents; (3) put in place procedures for the school district to notify parents and/or guardians  of both the victim and perpetrator of bullying in a reasonable amount of time when an incident has taken place; (4) establish actions that students should take to gain “assistance and intervention in response to” a bullying incident; (5) provide counseling options available to victims and perpetrators  of and witnesses  to bullying;  (6) set out procedures for reporting, investigating, and resolving bullying incidents; (7) prohibit disciplining a victim of bullying who reasonably  relies on self-defense  in response to being bullied; and (8) ensure that the discipline  of students with disabilities who are found to have bullied comports  with the Individuals with Disabilities Education Act (IDEA) and other federal laws impacting student discipline.8     Of particular importance is the legislative requirement that students with disabilities may not be disciplined for bullying (as well as for harassment9   and making hit lists10) “until an admission, review, and dismissal committee meeting has been held to review the conduct.”11    The district’s policy and procedures  must be published  annually  in student and employee  handbooks  and the reporting  procedures  must be, “to the extent practicable,” posted on the district’s website. However, the legislature remained silent on specifying bullying as either an offense requiring removal to a DAEP or expulsion, thereby leaving school districts discretion as to how bullying will be disciplined but also triggering additional requirements if the bully will be expelled or removed to a DAEP.  Finally, school district bullying policies are found in TASB Policies FFI(Legal and Local). The reader should pay particular  attention  to his/ her district’s Policy FFI(Local), which details procedures for bullying investigations.12


What about Transferring Students Involved in Bullying?

Adding to its previous legislation extending transfer rights to school-district verified victims of bullying on parent/guardian request,13   the 82nd Texas Legislature in 2011 gave districts the discretion to transfer students who have engaged in bullying.14  This statute permits the board or its designee to transfer the bullying perpetrator to another classroom on the same campus (without parent/legal guardian consultation) or to another campus in the school district “in consultation” with the parent/legal guardian. When identifying a bully, school districts are permitted to consider the alleged aggressor’s past behavior.  Importantly, the board or its designee must verify that the bullied student was indeed a victim of bullying; thus, the board or school administrator must make a finding of fact that the conduct meets the definitional requirements of Tex. Educ. Code § 37.0832.  Further, the determination of the board or its designee as to whether the alleged victim was a victim of bullying and the transfer decision is final and not appealable.  A school district is not required to provide transportation to another campus in the district for verified victims who have received a transfer.   Further, the transfer of a student with a disability who is the verified victim of bullying must comport with the placement  requirements  of Tex. Educ. Code § 37.004, i.e., the placement must be made by the student’s ARD committee.  Interestingly, this same ARD committee requirement is not made explicitly applicable to the disabled student who is transferred for engaging in bullying.   However, because school districts initiate the transfer of the student who engages in bullying (as opposed to the parent who initiates the transfer for the victim), school officials are wise to treat that transfer of the bully as a change of placement  that requires the ARD committee  to conduct a manifestation determination  review.


What is the United States Department of Education’s Take on Bullying?

While the Texas Legislature  added both obligations  and tools for school districts to address bullying, the United States Department  of Education  (DOE) has weighed in on the issue twice since 2010.   First, the DOE’s Office of Civil Rights (OCR) released a “Dear Colleague Letter”15     in October 2010.  In this letter, the OCR “reminded”  school officials who are obligated to adhere to other anti-discrimination laws enforced by the OCR that, to the extent bullying is based on a victim’s membership in a class protected by these statutes (e.g., gender protected by Title IX; race, color, or national origin protected by Title VI; disability protected by Section 504), school officials’ responses to bullying are subject to the anti-discrimination provisions of these statutes and any accompanying  regulations.   To illustrate, citing its own sexual harassment guidance revised in 2001,16  the OCR noted that schools subject to these statutes are “responsible for addressing harassment incidents about which [they know] or reasonably should have known.”17  This guidance, which departs from United States Supreme Court cases articulating an actual knowledge standard in Title IX teacher- and student-perpetrated sexual harassment  cases, effectively  told school districts  that their negligent failure to address bullying with connotations of discrimination or harassment could lead to a finding that the educational institution is in violation of these statutes and/or regulations.

This letter generated a great deal of concern, and in December 2010, Francisco Negron, General Counsel for the National School Boards Association (NSBA), responded18  to the “Dear Colleague Letter” by arguing that, first and foremost, OCR’s stated intent to hold educational institutions to a “knew or should have known” standard expands the scope of liability beyond the actual notice-deliberate  indifference standard articulated by the U.S. Supreme Court with regard to student-on-student sexual harassment under Title IX.19     Mr. Negron also chided the OCR for requiring institutions to take all measures to stop bullying, again expanding Supreme Court guidance that remedial actions must not be deliberately  indifferent  or “clearly unreasonable.” The NSBA letter expressed concern that OCR has rendered educational institutions more vulnerable to student bullying challenges beyond that which the U.S. Supreme Court envisioned in Davis v. Monroe Co. Bd. Of Educ., 526 U.S. 629 (1999).  In its March 2011 response20  (Ali, 2011) to the NSBA’s letter, the OCR took the position that the “actual knowledge-deliberate  indifference” standard established in Davis only applies to cases where complainants seek monetary damages through the courts, and not to OCR’s administrative  enforcement of the anti-discrimination statutes and their accompanying regulations, where OCR argues that the “knew or should have known” standard should apply. Thus, school officials should be aware that the current administration’s enforcement of these statutes and regulations imposes a greater duty of care on school officials than most court decisions (which will be addressed in the next section).

Second, the DOE’s Office of Special Education & Rehabilitative Services (OSERS), in an August 2013 “Dear Colleague Letter,”21  also made its stance known on bullying by first observing that the “bullying  of a student with a disability  that results in the student not receiving meaningful benefit constitutes a denial of a free appropriate public education (FAPE) under IDEA that must be remedied.”22   In its letter, OSERS addresses the provision of FAPE regarding two categories of students with disabilities: (1) students who are targets of bullying, and (2) students who engage in bullying.   With regard to the former, OSERS asserts that schools have a duty to provide FAPE to bullied students with disabilities.   Going further, OSERS maintains that schools should “convene the IEP team [the Admission, Review, & Dismissal (ARD) committee]  to determine whether, as a result of the bullying, the student’s needs have changed”23   to the extent that the IEP is no longer reasonably calculated to provide the student a “meaningful educational benefit.”24    If this is the case, the IEP team must determine  what changes  need to be made to the IEP and revise it accordingly.   Finally, OSERS cautions school districts to avoid changing a bullied student’s placement without good reason, particularly by placing a bullied student in a more restrictive placement to avoid contact with the bully. Any change in placement,  of course, may not be unilaterally  made by the school district, but as part of the ARD process.   With regard to the disabled student who bullies, OSERS urges school districts to “review the student’s IEP to determine if additional supports and services are needed to address the inappropriate behavior…[and  to examine] the learning environment in which the bullying occurred to determine if changes to the environment are warranted.”25     Here again, it is important to remember that, under Texas law, a student with a disability under IDEA who engages  in bullying,  harassment,  and/or making hit lists may not be disciplined for this conduct “until an admission, review, and dismissal committee meeting has been held to review the conduct.”26


What are Courts Saying about Bullying Cases in Texas?

Texas case law regarding bullying has started to accumulate during the past few years, and this brief summary of five Texas cases, including  three involving  student suicides, begins to illuminate important issues before the courts.

The first case is really not styled as a “bullying” case, but is a leading 5th Circuit decision involving what the court termed “a petty squabble, masquerading as a civil rights matter”27  between two female cheerleaders who were rivals for the same boy’s affection. In Sanches v. Carrollton-Farmers  Branch Indep. Sch. Dist.,28  the federal appellate court affirmed a grant of summary judgment to the school district on claims of peer sexual harassment brought under Title IX and the Equal Protection Clause. Without going into the finer details of the long-simmering  feud between two female high school cheerleaders, the plaintiff, who did not make the varsity cheer squad as a junior, asserted that she was sexually harassed by a senior cheerleader on several occasions:   (1) when the alleged aggressor  indirectly  referred to the plaintiff as a “ho” (as the plaintiff was now dating the previous boyfriend of the aggressor), (2) when the aggressor allegedly spread a rumor that the plaintiff had a “hickey on her breast,” (3) when the aggressor told the plaintiff that she was having sex with the boy and wiped tears from the plaintiff ’s eye, (4) when the aggressor slapped the boy on the buttocks in the hallway and remarked how cute the new couple looked together, and (5) when the two girls traded allegations that the other was pregnant with the male student’s child.   In each instance when the plaintiff student or her parents complained to school officials, school officials took action, including investigating and interviewing all parties concerned.   For example, after the “ho” comment, a school administrator removed the aggressor from the plaintiff ’s class.  With regard to the hickey comment, the student denied saying it, and the assistant principal discovered that the two students were not together when the plaintiff pointed out in the locker room that she had a “rash on [her] breast.”29    Finally, the aggressor admitted wiping tears from plaintiff ’s eyes, but out of real sympathy for both of the girls being “played” by the boy.

In affirming the federal district court’s grant of summary judgment  on the plaintiff ’s claims,30   the 5th Circuit first held that, with regard to the Title IX claim, the aggressor’s  actions were not “based on sex.”  The court said that the incidents were based on “personal animus” rather than the gender of the plaintiff, and even the “ho” name-calling  incident paled in comparison to other cases cited by the plaintiff for the proposition that the harassment  was sex-based.   Further, the court found that even if the conduct was “based on sex, it was not severe, pervasive, or objectively unreasonable,”31 again paling in comparison to the conduct in cases cited by the plaintiff in support of her claim. Finally, the court held that the school district’s actions were not deliberately indifferent to the alleged harassment, as each time school  off icials received  a complaint,  they investigated  and took appropriate  action when warranted.   Noting that Title IX does not require schools “to remedy the harassment  or accede to a parent’s remedial demands,”32  the court found that school officials’ actions were “not clearly unreasonable,”  the standard for overcoming a claim of deliberate indifference.

The second case is also not styled as a “bullying” case (with the term only appearing three times in the lengthy decision), but as a race-based harassment  case.   It is included in this section as illustrative of the analysis that a court might use in evaluating race-based bullying claims, particularly under the Equal Protection  Clause.   The case, Fennell  v. Marion  Indep. Sch. Dist,33 concerns three African-American  female siblings in the Marion Independent School District who alleged that they were subjected to race-based bullying (by peers) and discrimination (by the district and its officials) dating back to at least 2008.  This is a very fact-intensive  case, and space limitations  preclude a full recitation of the facts except where necessary.  From a host of claims, four claims against the school district and/or school officials survived the defendants’ motion to dismiss.   First, the federal district court declined to grant qualified immunity to the district’s athletic director under the Equal Protection Clause stemming from an incident where the athletic director “admonished” an African-American female student-athlete for her “ethnic” hairstyle.  The court found that the plaintiff adequately stated an equal protection claim by alleging facts that the athletic director failed to admonish  “similarly-situated”  female student athletes for their “multi-toned”  hairstyles, that the director’s use of the term “ethnic” could raise an inference of discriminatory  intent. Further, the student’s right to be free from race discrimination was clearly established  at the time of the incident  in the late 2000s.  For similar reasons, an equal protection claim also survived against an Anglo female high school girls’ softball coach who, also asserting  the qualified immunity  defense,  left with the softball team prior to the scheduled departure time, leaving behind another female African-American  student (the sister of the student discussed above) because she broke a team rule by signing out for lunch on the day of a game.  The complaint survived because the student alleged facts that similarly-situated female student-athletes  who were not African-American  were not disciplined for signing out for lunch on game days.  Finally, the court declined  to dismiss  equal  protection  and Title VI race discrimination  claims against the school district for peer race-based  harassment  against the three children.   With regard to the equal protection claim against the district, the court observed that the plaintiffs alleged facts that the employee-based discrimination was the result of the board’s policy, custom, or practice of being deliberately indifferent to known incidents of race-based harassment.   With regard to the Title VI student-to- student racial harassment claims (including claims that students displayed nooses in front of the plaintiffs), the court noted that the plaintiffs successfully alleged facts that the school district, acting through its responsible school officials, actually knew of and was deliberately indifferent to such incidents.  This case is still in litigation and certainly bears watching, as currently the defendants’ summary judgment is pending before the court.34

The final three cases involve suicides of students, allegedly as a result of peer bullying. The first case is styled Estate of Carmichael v. Galbraith (Carmichael I),35  and is the first of two decisions rendered from the same set of facts.  The controversy involves a suit brought by the estate of a thirteen-year-old middle school student from the Joshua Independent School District who committed  suicide in 2010.   The suit claimed that the student had been subjected to “relentless” verbal and physical bullying by classmates, including being attacked by teammates in the football locker room; and having his head flushed in a toilet. Further, it was alleged that, on the day preceding his death, he was “stripped naked, tied up, and stuffed into a trash can while the incident was videotaped”36  and classmates paraded by calling him a “fag,” “queer,” “homo,” and “douche.”37     The complaint also alleged that more than one teacher witnessed the incidents and did nothing,  and that a counselor  from whom the young man sought assistance did not report the bullying incidents.   In the suit against the school district as well as the teachers and counselor in their individual capacities, the federal district court dismissed all claims but allowed the family to amend the suit, finding first that the deceased student could not prevail on his Fourteenth Amendment due process claim that the defendants’ actions violated his rights to life and liberty.  The court held that the due process clause protects individuals from actions of the state only, and not from other private actors.  The court rejected the estate’s Fourteenth Amendment equal protection claim, finding that the school district did not treat claims of the student’s bullying differently from bullying claims brought by other students, nor did it treat bullying claims differently based on the gender of the perpetrators and the victims.  In other words, the school officials did not respond differently to bullying claims involving female student bullies and victims or mixed-gender  bullies or victims. Finally, the court dismissed the Title IX claim against the school district, finding no evidence that the district discriminated in its alleged response to the student because he was male, that the bullying occurred because the student was male, or (with one possible exception limited to the videotaping incident) that the bullying was based on sex.

After the Carmichael’s amended their Fourteenth and Title IX claims, the federal district court again dismissed the complaint,38 this time with prejudice (i.e., with no opportunity to further amend the suit).  The court explicitly rejected the estate’s “state-created danger” theory claim on the grounds that the 5th Circuit had yet to adopt this theory of liability.39    With regard to the equal protection claim, the court found conclusory any allegation by the estate that had the student victim been a female, school officials would have responded differently to the bullying. With much less discussion,  the court also reiterated its first holding that the estate could not establish,  for Title IX purposes,  that the bullying was based on the gender of the deceased student.

The second bullying-suicide  case involved a middle school male student in the Cypress-Fairbanks  Independent School District, who allegedly was bullied both verbally and physically, with the bullying carrying religious and sexual overtones.  Although the student’s family later voluntarily dismissed the suit, it illustrates the types of allegations sufficient to state claims under Title IX. For example, the suit alleged that Asher Brown’s classmates simulated having anal intercourse with Asher on several occasions, that his classmates called him sexually derogatory names (e.g., “gay,” “faggot,” “queer,” “bitch,” and “         head”40), and tied this conduct  to his Buddhist  religion  by insinuating  that he had sex with Buddha.  Asher’s mother asserted that she, Asher’s  father, and even Asher himself  tried to notify a host of school officials—including a counselor and two grade-level principals—about  the misconduct, but were ultimately rebuffed in their attempts to make contact.

When the student committed suicide in September 2010, his estate brought suit against the school district and several school officials, asserting that the defendants’ inadequate response to the bullying incidents resulted in the death of their son and violated, in relevant  part, his Fourteenth Amendment  due process  and equal protection rights as well as his rights under Title IX.   In two decisions dismissing all but the Title IX claim,41  the federal district court dismissed the due process claims against the defendants on the same grounds as noted in the Carmichael case. The Court held that students cannot claim due process protection when injured by a private actor (including oneself) absent the existence of a special relationship, which the 5th Circuit explicitly foreclosed in Doe v. Covington Cty. Sch. Dist.42    With regard to the equal protection claim, the court also ruled similarly to the Carmichael case, observing that the estate failed to adequately plead (1) that the district followed its bullying policies with regard to the other students while failing to follow them for Asher, and (2) that the district enforced its bullying policies differently for males bullied by males, than it did for same-gender female bullying or mixed-gender  bullying. Left standing was the Title IX claim, with the district court finding sufficient pleadings that the school district had actual notice (through a complaint made to an assistant principal43), that the district was deliberately indifferent to this knowledge (by doing nothing), that the bullying was based on sex (due to it being “overtly sexual or involv[ing] sexual innuendo”44   and based on the classmates’ “perception that Asher was gay”45), that the sex-based bullying occurred in a context subject to the district’s control (on school premises),  and that the bullying was sufficiently “severe, persistent, and objectively offensive”46   to deprive the student of his educational   benefits. Key to this ruling was the finding that the bullying was “based on sex,” which is necessary to convert a bullying claim into a sexual harassment claim under Title IX.47

The third bullying-suicide case, which has resulted in a recently-published  decision by the 5th Circuit, involved a claim brought by the estate of ten-year-old Montana Lance, a student with a disability who hanged himself in the nurse’s restroom in a Lewisville Independent School District (LISD) school after being subjected to, for lack of a better term, bullying based on his perceived sexual orientation (related to his speech impairment). 48

Two documented incidents of bullying took place in late 2009 during his fourth grade year.   The first occurred in November 2009, when a classmate “verbally provoked” Montana to the point that Montana verbally retorted, pushed the student away, and the student provocateur responded by pushing Montana into some chairs.  The second altercation took place about six weeks later when, in response to being told by a classmate at recess to “stop playing like a Ninja,”49  Montana pulled out a pocketknife and called the classmate a bully.  A second classmate then told the first to “beat [him] up again,”50  and the first classmate responded by picking up Montana and moving him.

The district responded to the November 2009 incident by investigating it, by talking to the children involved and working on relationships, and by assigning one of Montana’s classmates to in-school suspension.  The district responded to the second incident involving the knife by placing Montana into an off- campus Disciplinary Alternative Education Program (DAEP) for 10 days.  School officials later reduced the DAEP placement to eight days after Montana’s mother complained to the superintendent that the punishment was (a) too harsh, and (b) seemed to be a reward to Montana because he was not being bullied in the DAEP.  In addition, school officials investigated this second incident and assigned disciplinary consequences (including some suspensions) to all students involved.

During his time in the DAEP, a school psychologist counseled Montana, and Montana told his teacher that he wanted to kill himself.  A school counselor met with Montana and afterwards told Montana’s father about Montana’s suicidal comments. Even though the counselor opined that the “‘lethality’”51  of Montana’s comments  was low, Montana’s  parents made arrangements  for him to meet with another psychologist, to whom Montana gave no indication of suicidal thoughts.  Two days after Montana returned  to his home campus,  he was involved  in an altercation in the breakfast line, being shoved into the tray rods after telling classmates to stop calling him names.  That same day, a substitute teacher sent Montana to the office for using profanity and Montana met with the school’s assistant principal.  Montana asked to use the restroom, and was permitted to use the nurse’s restroom.  After a fair amount of time passed, the nurse checked on Montana, who said “‘he’d be right out.’”52   After a subsequent inquiry from the nurse, Montana did not respond.   Neither the nurse nor the custodian had a key to unlock the locked restroom door.  The custodian and the nurse gained entry to the restroom using the custodian’s screwdriver and found Montana hanging from his belt “secured to a metal rod in the ceiling.”53    Montana was transported  to a nearby hospital,  where he was declared dead on arrival.   The estate brought claims against the district and several school officials under the Due Process Clause of the Fourteenth Amendment,  as well as under Section  504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA).  The federal district court ruled in favor of the district defendants on all claims,54   first granting partial summary judgment on the due process claim, again for the reason that the perpetrators  of the bullying were private actors (students), and not school officials. According to the court, school officials do not have a constitutional due process duty to protect one student from another (or from him/herself) absent a special relationship. Further, because there was no underlying constitutional violation, the estate’s “causes to be subjected” theory of liability under 42 U.S.C. § 1983 failed, as did the due process claim against the district in its governmental capacity.  The court granted the district’s partial summary judgment motion on the Section 504 and ADA claims, essentially for the reason that there was no evidence of disability-based discrimination on the part of the defendants.

In a published decision, a three-judge panel of the Fifth Circuit unanimously affirmed in favor of the school district. The court first analyzed the parents’ Section 504 claim, which was predicated on two theories of liability. In the first, the parents claimed that the district exercised “gross professional misjudgment” when it failed to provide “Montana with educational services necessary to satisfy [Section] 504’s [free appropriate public education (FAPE)] requirement.”55 Noting that the parents would have to prove that the district “‘refused to provide reasonable accommodations  for [Montana] to receive the full benefits of the school program,’”56  the federal appellate court relied on language in both federal regulations implementing  Section 504 and previous case law to hold that the district satisfied its obligation to provide FAPE under Section 504 by providing FAPE under IDEA.  As the documentary evidence from Montana’s IDEA files showed, his parents agreed with the special education and related services provided to Montana and never argued that Montana’s IEP was inappropriately developed or implemented. Thus, the court concluded that the district provided FAPE under IDEA, thereby satisfying its obligation to provide FAPE under Section 504, and defeating the parents’ first theory of liability.

Under the second Section 504 theory of liability, Montana’s parents argued that the school district was deliberately indifferent to known acts of “disability-based harassment”57   on the part of Montana’s classmates.  Analyzing this argument, the Fifth Circuit utilized (but did not explicitly adopt) the Title IX peer sexual harassment framework from Davis v. Monroe County Bd. of Educ.58   The court used the following analytical framework to weigh the parents’ claim:  (1) was the student disabled, (2) was the peer harassment based on the student’s disability, (3) was the “harassment…sufficiently  severe or pervasive that it altered the  condition of [the student’s] education,” (4) did the school district know of the harassment, and (5) was the district “deliberately indifferent to the harassment”?59

In its analysis, the court focused on whether the school district was deliberately indifferent.  At the outset, the Fifth Circuit outlined what it believed are the limits of deliberate indifference  under Title IX and Section 504:   (1) that it does not require federally-assisted  school districts to purge all acts of “actionable” harassment from its hallways or require school officials to choose particular courses of action, but (2) it does require responsible  school officials to respond in a way that is “not clearly unreasonable.”60  Applying this standard in particular to the two documented  incidents  of bullying noted above, the court found that the actions of school officials, and specifically the assistant principal, passed muster.  As noted above, with regard  to the f irst incident  where Montana  was pushed  into a stack of chairs, the court found that the assistant principal counseled with all students involved, attempted to rebuild the relationships among the students, and (arguably most importantly) assigned the offending student to in-school suspension. With regard to the second (pocketknife) incident, the assistant principal interviewed and counseled all students, contacted and met in person with the parents of all students involved, and assigned suspension  to the classmates  of Montana  who were at some fault.  Finally, the court also chronicled the district’s “not clearly unreasonable” responses to several incidents of bullying beyond those documented.  Ultimately, the court concluded that the school district was not deliberately indifferent to the acts of bullying of which it knew.

Finally, Montana’s  parents brought causes of action under the due process clause of the Fourteenth Amendment as enforced through 42 U.S.C. § 1983, under three theories of liability: (1) special relationship, (2) state-created danger, and (3) “caused-to- be-subjected” (borrowing nearly directly from Section 1983). The court quickly dispensed with the special relationship argument, relying on its holding in Covington 61 that compulsory attendance laws as a matter of law do not create a special relationship duty under the due process clause on the part of school officials to protect one student from another private individual or him/ herself. Because there was no special relationship between the district and Montana,  the parents could also not be successful under a “caused-to-be-subjected” theory of liability.  Lastly, while not explicitly adopting the “state-created  danger” theory of liability, the appeals court essentially held that school district officials did not affirmatively act in such a way that created or enhanced a known or imminent danger to Montana, i.e., placed him in a greater danger that it would have if school officials had not acted at all.




The foregoing court cases provide rich practical guidance for school administrators, teachers, coaches, and counselors when addressing complaints of bullying.

1.      Students seeking redress under the due process clause of the Fourteenth Amendment have been, and will likely continue to be, unsuccessful due to the general principle that the due process clause does not impose a duty on school officials to protect one student from another.  However, the author fully believes that, for reasons below, school officials should not be lulled into a false sense of security.

2.      School officials should be particularly careful that they do not treat student complaints of bullying differently based on a protected student classification (e.g., race, gender, disability) or treat a single student’s complaint of bullying differently from other similarly-situated students (in every respect but the protected student’s classification). In other words, treat student complaints of bullying where the perpetrator is male and the victim is male in the same way you would treat mixed-gender bullying or female on male bullying. With the exception of the Fennell case, which dealt with school officials’ allegedly discriminatory acts toward students, students have been unsuccessful to date in making their equal protection claims when bullied by peers, but this is likely as due to improperly pleaded claims as to anything else. At some point in the very near future, a Texas student will push an equal protection bullying claim to the 5th Circuit.  The lesson is to treat seriously all bullying complaints, regardless of the identity or the classification of the bully or the victim.

3.      Whether  it be Title IX, Title VI, or Section  504 (or even the equal protection clause), the term “deliberate indifference” ought to be permanently stamped in the minds of every Texas school official as their legal duty when responding to student’s complaints of bullying. While the term has been treated in this paper as those acts that are “not clearly unreasonable,” there are a couple of critical elements to this definition.  The first is that deliberate indifference constitutes a “conscious choice”62   or “official decision.”63   The second is that the choice or decision is one that determines “not to remedy the violation,”64  or fails “to take the action that is obviously necessary”65  to remedy the bullying. While deliberate indifference does not require school officials to eliminate the bullying or accede to parents’ remedial demands, these critical elements of deliberate indifference should serve as a guide to the decision-making of school officials when addressing complaints of bullying.

4.      School officials must follow their bullying policies and procedures  and document  assiduously  their doing so in all cases, and particularly where students with disabilities are concerned.  From the Montana Lance case, the school district’s special education documentation revealed that it had provided FAPE to Montana, thus defeating the estate’s “failure to provide FAPE” claim under Section 504.

5.      Even if student-on-student misconduct does not meet the Texas statutory definition of bullying, school officials should respond to each student complaint as if it meets the definitional requirement, particularly if a transfer of the bully or a victim is in the offing.




The 5th Circuit in Montana Lance noted that “Judges make poor vice principals,”66  and the federal courts with Texas jurisdiction do not desire to second-guess “the disciplinary decisions made by school administrators,”67  provided these decisions  do not amount to deliberate indifference.   By keeping current with developments in bullying law68  and treating all student claims of bullying with the respect that they deserve, school officials not only reduce their legal vulnerability, but foster a school climate that optimizes the opportunities for success for all students.



1.   Family Says Teen Committed Suicide after Relentless Bullying, Pitt County Sheriff ’s Office Investigating,, http://WWW.witn. com/home/headlines/Family-Says-Teen-Committed-Suicide-After- Relentless-Bullying-253639461.html (last accessed April 4, 2014).

2.   Facts about Bullying,, (last accessed April 4, 2014).

3.   Id.

4.   Bullying and Suicide, (last accessed April 4, 2014).

5.  This article does not cover cyberbullying. For an excellent treatment of this subject, please see Jennifer Childress, Cyberbullying: Legal Developments and Trends in Student Use of Social Media, 29 Tex. Sch. Admin. Legal Digest 2.

6.   Tex. educ. code § 37.0832 (a), emphasis added.

7.   Tex. educ. code § 37.0832 (b).

8.   Tex. educ. code § 37.0832 (c).

9.   Tex. educ. code § 37.001 (b) (2).

10.   Tex. educ. code § 37.001 (b) (3).

11.   Tex. educ. code § 37.001 (b-1).

12.   See, e.g., for the North East ISD Policy FFI (Local).

13.   Tex. educ. code § 25.0342 (b).

14.   Tex. educ. code § 25.0342 (b-1).

15.   “Dear Colleague” Letter from Russlynn Ali, Assistant Director, U.S. Department of Education Office of Civil Rights (Oct. 26, 2010).  (last

visited April 10, 2014).

16.   United States Department of Education, Revised Sexual Harassment Guidance: Harassment of Students By School Employees, Other Students, or Third Parties (2001). (last visited April 10, 2014).

17.   Id. at 13 (emphasis added).

18.   Letter from Francisco Negron, General Counsel, National School Boards Association, to Charlie Rose, General Counsel, U.S. Department of Education (Dec. 7, 2010). (last visited April 10, 2014).

19.   Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629 (1999).

20.   Letter from Francisco Negron, General Counsel, National School Boards Association, to Russlynn Ali, Assistant Secretary, U.S. Department of Education Office for Civil Rights (March 25, 2011). (last visited April 10, 2014).

21.   “Dear Colleague” Letter from Melody Musgrove, Director, Office of Special Education and Rehabilitative Services, and Michael Yudin, Acting Assistant Secretary (August 20, 2013). (last visited April 10, 2014).

22.   Id. at 1.

23.   Id. at 3.

24.   Id.

25.   Id.

26.   See note 11, supra.

27.   Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist, 647 F.3d 156, 159 (5th Cir. 2011).

28.   Id.

29.   Id. at 162.

30.   For purposes of brevity and its applicability to bullying cases, only the Title IX sexual harassment claim is elaborated.

31.   Id. at 166.

33.   Id. at 167-68.

34.   963 F. Supp. 2d 623 (S.D. Tex. 2013).

35.   Fennell v. Marion Indep. Sch. Dist., No. 5:12-CV-0941 DAE (Document 45) (W.D. Tex. Mar. 4, 2014).

36.   2012 U.S. Dist. LEXIS 857 (N.D. Tex. 2012).

37.   Id. at *3.

38.   Id.

39.   Estate of Carmichael ex. Rel. Carmichael v. Galbraith, 2012 U.S. Dist. LEXIS 138206 (N.D. Tex. 2012).

40.   This theory of liability, which has not been adopted by the 5th Circuit, permits a claim to be brought by a private actor under the Due Process Clause against a state actor when the private actor suffers an injury at the hands of another private actor or at the hands of him/herself, when the state actor with deliberate indifference created or enhanced an obvious danger to a known victim. For a full elaboration of the elements of this theory as elaborated (but not adopted) by 5th Circuit, see Doe v. Covington Cty. Sch. Dist., 675 F.3d 849, 865 (5th Cir. 2012).

41.   Estate of Asher Brown v. Ogletree, 2012 U.S. Dist. LEXIS 21968 (S.D. Tex. 2012), at *4. (Brown I).

42.   See also Estate of Asher Brown v. Cypress-Fairbanks Indep. Sch. Dist., 863 F. Supp.2d 632 (S.D. Tex. 2012). (Brown II).

43.   In Brown I, note 29, supra, the court permitted a special relationship claim to proceed against school officials, but was obligated to reverse that decision in Brown II, Id.

44.   The Brown I court rejected the defendants’ claim that notice under Title IX must be given to the campus principal for notice to attach to the school district. See note 28 supra.

45.   2012 U.S. Dist. LEXIS 21968 at *50.

46.   Id.

47.   Id. at *48.

48.   Of significant note is that, roughly one year after these two decisions were rendered, the case seemed to be headed to trial on the Title IX claim. However, the estate voluntary requested that the case be dismissed with prejudice against the school district defendants. In the “Agreed Stipulation of Dismissal,” the estate backed away from several of its allegations made in the original complaint, and the defendants made it clear that they had not settled the case, and that Asher’s “tragic suicide was the result of the complex interaction of medical and mental health conditions and various events and circumstances in Asher’s life that occurred outside of the school environment.” Estate of Asher Brown v. Cypress-Fairbanks Indep. Sch. Dist., No. 4:11-cv-01491 (Document 90) (S.D. Tex. Mar. 27, 2013). The court executed the dismissal order on March 27, 2013.  Estate of Asher Brown v. Cypress-Fairbanks Indep. Sch. Dist., No. 4:11-cv-01491 (Document 91) (S.D. Tex. Mar. 27, 2013).

49.   The fact summary of this case is taken from the 5th Circuit’s decision in Estate of Montana Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 2014 U.S. App. LEXIS 3863 (5th Cir. Feb. 28, 2014), and is longer the fact summaries from the previous cases due to the importance of the case.

50.   2014 U.S. App. LEXIS 3863 at *3.

51.   Id.

52.   Id. at *5

53.   Id.

54.   Id. at *6.

55.   Estate of Lance v. Kyer, 2012 U.S. Dist. LEXIS 160580 (E.D. Tex. 2012).

56.   2014 U.S. App. LEXIS 3863 at *16.

57.   Id., emphasis in original.

58.   Id. at *26.

59.   See Note 19, supra.

60.   2014 U.S. App. LEXIS 3863 at *29-30.

61.   Id. at *37.

62.   675 F.3d 849 (5th Cir. 2012).

63.   See, e.g., Yara v. Perryton Indep. Sch. Dist., 2014 U.S. App. LEXIS 5946 at *6 (5th Cir. 2014).

64.   Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-291.

65.   Id. at 290.

66.   Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir. 1994).

67.   2014 U.S. App. LEXIS 3863 at *31.

68.   Id.

69.   See, e.g., Jennifer Childress, Texas Legal Handbook on Student Bullying (Texas School Administrators’ Legal Digest 2012).