School Officials Can Face Liability for Retaliation Against a Bullied Student

School Officials Can Face Liability for Retaliation Against a Bullied Student | Legal Digest Online

Jennifer Childress – Editor of The Legal Digest :: 31 October 2011

When it comes to dealing with student bullying complaints, school administrators can get into legal trouble by imposing disciplinary action against a complaining student. Courts have held that retaliatory discipline in response to complaints of harassment or bullying may violate Title IX and the First Amendment. In Jackson v. Birmingham Board of Education, the U.S. Supreme Court first recognized a claim of retaliation under Title IX by a male former coach of a girls’ basketball team. The plaintiff in Jackson was removed after complaining to superiors that his team did not receive funding and access to athletic equipment equal to the boys’ team. The Supreme Court held that Jackson could raise a retaliation claim even though he was not a victim of the discrimination that was the subject of his original complaint.

Title IX retaliation claims require a showing that (1) the plaintiff engaged in activity protected under Title IX; (2) the district knew of the protected activity; (3) the plaintiff was subjected to a materially adverse action; and (4) there was a causal connection between the protected activity and the adverse action. If the district is able to articulate a legitimate reason for taking the adverse action, the plaintiff must then establish that the reason given by the district was pretextual. Plaintiffs may prove pretext by showing that a retaliatory reason more likely motivated the district’s decision or by showing that the district’s reasons were “unworthy of credence.”

Similarly, to recover damages for a First Amendment retaliation claim, a plaintiff must demonstrate that (1) the student was engaged in a constitutionally protected activity; (2) the district’s adverse action caused the student to suffer an injury that would likely chill a person to engage in that activity; and (3) the adverse action was motivated, at least in part, by the student’s exercise of their constitutional rights.

One bullying case out of Ohio illustrates this point. In Marcum v. Bd. of Educ. of Bloom-Carroll Local Sch. Dist., 727 F.Supp.2d 657 (S.D. Ohio 2010), the student alleged that the district retaliated against her for complaining of student bullying and sexual harassment by suspending her and ultimately expelling her. The Ohio court declined to dismiss the retaliation claims against the school principal under Title IX and the First Amendment, holding that genuine issues of fact existed on whether the principal acted with a retaliatory motive when he disciplined the student. The record showed that the principal disciplined the student for allegedly stealing another student’s iPod. The student claimed, however, that she found the iPod and gave it to another student to return to its owner.

The student also presented sufficient evidence from which a reasonable jury could find that the decision to suspend and expel the student was motivated, at least in part, by her prior complaints about alleged sexual harassment and verbal taunts by other students. For example, evidence suggested that the principal acted as if he was “getting tired of” the complaints. The student’s mother characterized the principal as “rude” and “hateful.” The principal allegedly laughed and smirked when he told the mother that he was “going for expulsion” of the student. The principal also admitted that he should have investigated the iPod incident more before issuing the discipline. According to the court, the evidence was sufficient to create genuine issues of material fact on whether the principal disciplined the student in retaliation for complaints of harassment.

The main lesson here is that disciplinary action, especially a suspension or expulsion, against a student who has raised complaints of sexual harassment or bullying can give rise to a retaliation claim under either Title IX or the First Amendment. School officials must be able to establish legitimate, non-retaliatory reasons for the discipline. A thorough and impartial investigation of the student’s misconduct, as well as clear and unbiased documentation, will support the reasons for the district’s actions.