We routinely field frantic calls from parents asking us what to do once their child has been assaulted at school by another student. In the age of social media and cameras placed all over school property, it has been heartbreaking to actually watch students violently attack each other. Rose colored glasses shatter when we view other students encouraging fighting without any regard to student safety. Sadly, violence at schools is viewed as entertainment or sport for many students.
Attacks can often fall into different categories that require a variety of legal responses. If a student touches another student in a sexual manner and, for example, gropes a student by touching private parts, the student victim will have a claim that Title IX has been violated. Non-sexual acts of bullying that go unchecked by school officials can rise to a civil rights violation under 42 U.S.C. Section 1983. Many times, acts can fall into overlapping categories, especially when race, religion and/or a student’s disability is implicated. Either way, students have the right to attend school without relentless teasing, unwanted touching and/or physical assaults.
When a parent learns about an attack, we strongly encourage parents to make sure the following steps are taken:
- Report the Fight/Harassment: If the school is not aware of the fight/harassment for some reason, make sure that the student reports what happens. We prefer that the student fill out a written accounting of what occurred to make sure that there are no misunderstandings or mischaracterizations of the event(s). A written report of events is also critical for ensuring that the school takes appropriate responsive steps to ensure student safety.
- Gather and Preserve Documents: In this age of social media, most fights are captured on someone’s phone or discussed on social media. If Snapchat messages have been created, it’s important to screenshot or preserve those messages before they disappear.
- Demand an Investigation: Under most school policies, parents have the right to demand an impartial investigation. Indeed, if students are found responsible for violating a school’s policy, it’s not unreasonable for the school to impose discipline. However, schools may not share the discipline with parents out of privacy concerns.
- Request Interim Measures: Students have the right to have no contact orders put in place to ensure the future safety of the student. No contact orders play an important role in preventing further occurrences. In addition, consider changing academic schedules, seating charts for the bus and reorganizing lunch periods.
- Seek Academic Accommodations: It’s not unusual for students to struggle after an attack. Many students will find it difficult to stay focused in school. Students might need extended time to turn in homework or take examinations. Others might need to be able to take a break from class and report to a school counselor or nurse to gain composure or take medication. Work with a trained mental health counselor to determine what sort of requests should be made to the school for added support.
After we provide advice for parents about how to address the immediate threat to the student, parents often wonder if the school is liable for the assault by another student. Without dodging the answer, we provide a “lawyerly” response that depends on the circumstances. The general rule is that schools are not responsible for those attacks or assaults that are truly unforeseeable, which is why providing notice to school officials is so important. Under the landmark case of Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998), schools are not liable for claims unless there was actual notice of the claim and evidence that the school was deliberately indifferent to the notice of bullying or harassment of the student. In other words, schools are only responsible if they turn a blind eye to claims by students or parents and/or take acts that ratify the illegal action, which can be proven in a number of ways.
The first priority must always be student safety. After the appropriate measures are taken, then the attention should turn to ensuring that the appropriate parties are held accountable for their actions. An experienced lawyer can assist with global plan to see that a remedy is available for the student.
