Local School Harass Cases May Clear 'Davis' Hurdles
By KEVIN LIVINGSTON
Plaintiffs in two Bay Area cases could reap the rewards of a U.S. Supreme Court ruling that allows schools to be held liable for student-on-student harassment.
The ruling helps clear up whether the cases - one in Alameda County, the other in San Francisco - can move forward, attorneys involved in the actions say.
But those two claims may prove the exception rather than the rule in such harassment cases, local lawyers contend. While attorneys on both sides of the bar predict an up tick in claims as a result of Monday's decision, obtaining large verdicts will be another matter.
The court's decision in Davis V. Monroe County Board of Education. 99 C.D.O.S. 3861. Sets a high hurdle for plaintiffs to clear if they want to hold schools liable under harassment claims.
The court said the harassment must be severe, and plaintiffs must show that a school official with the power to take corrective action knew of the harassment, but showed deliberate indifference to it.
"Teachers and administrators are involved, caring people." said Thomas Beatty, an attorney who represents the Martinez School District. "I don't think the standard will be met very often."
Both Bay Area suits accuse local schools of showing deliberate indifference to sexual assault - which may be enough to satisfy the high court's tough liability standard.
Pending in Alameda County Superior Court is Doe V. Markham Elementary School. 805168-6. which involves the sexual assault of an elementary school student. In that case, a 7-year-old boy alleges he was sexually assaulted by an older student in a school bathroom.
Set to go forward in San Francisco in Lee V. Cornerstone Academy. 995169. That case centers on the sexual assault of a second-grader at the hands of another student.
Lawyers for the boy in Doe said the school ignored the abuse even after the boy's mother complained. Randall Scarlett and Steven Fabbro of San Francisco's Brown. Fabbro & Scarlett said the school failed to take remedial measures, including calling child protective services. Listed as defendants in the case are Markham Elementary, the Oakland School District, Principal Mary Murphy, and several other school officials.
Scarlett said Monday's opinion by the Supreme Court - no matter how conservative - clears up any confusion of whether cases like Doe can go forward.
Likewise in Lee, solo attorneys Robert Lazo and Arnold Laub say a 10-year-old boy was repeatedly assaulted as a second-grader. After his mother complained repeatedly to school officials, the boy was subjected to further harassment and retaliation at the hands of students.
According to court papers, a student at the school grabbed the boy's genitals, threw objects at him, and humiliated him.
Doe is expected to go to trial by fall, and Lee must go to arbitration within three months.
But while both cases claim sexual assault and deliberate indifference, lawyers who represent school districts say few such cases will meet the standard laid out in Justice Sandra Day O'Connor's opinion.
Beatty, a partner with Walnut Creek's McNamara, Houston, Dodge. McLure & Ney represented the Martinez School District last year in a successful defense against a student-on-student harassment claim.
He predicts more sits will be brought against schools, adding to the cost of litigation, but said schools can protect themselves under the Supreme Court standard.
Districts had hoped that the Supreme Court would affirm the Eleventh Circuit U.S. Court of Appeals' ruling in Davis -
PEER PRESSURES: Steven Fabbro and Randall Scarlet of Brown, Fabbro & Scarlett are suing an Oakland school in a student-on-student harassment case.
granting them immunity from such claims - but Beatty said schools must now show they made an attempt to stop the harassment.
"Immunity is a lot better then a winnable standard." Beatty said. "But it is wrong to know about egregious harassment and do nothing."
Beatty said the ruling will minimize frivolous claims and schools will not be subjected to million-dollar verdicts every time a student is teased is the classroom.
The fight over school liability in student-on-student harassment has consistently been before the courts in recent years.
Beatty's Martinez School District case last year is one example. A federal jury in San Francisco found the district was not responsible for the harassment of eighth-grade girl by a fellow classmate after Northern District Chief Judge Marilyn Hall Patel allowed the claim to go forward under Title IX.
The case - Nicole M. v. Martine Unified School District, 964 F.Supp. 1369 - was one of the first peer-on-peer harassment claims to result in a federal jury verdict. Relying on a Supreme Court opinion in Gebser v. Lago Vista Unified School District, 118 Sup.Ct. 1989 - a case of teacher-on-student harassment jurors found that the district did not foster the harassment through deliberate disregard.
On the other hand, an Alameda County jury last year awarded a former Albany High School student $683,000 after her ex-boyfriend assaulted her on campus.
The jury found that the school district did not have a proper sexual harassment policy in place.
And last August, the Laguna Salad Union School District in Pacific settled out of court for $160,000 after a mother accused school officials of failing to protect her 10-year-old son from anti-gay slurs.
"We will find out about new cases now that there is a federal right to proceed." Scarlett said.
Reporter Kevin Livingston's e-mail address is klivingston@therecorder.com.
