It’s no news that kids bully and harass other kids at school—verbally, physically, or on social media. And some students are particularly vulnerable to harassment, particularly children with disabilities and kids who don’t fit traditional gender norms. If your child has been a victim of harassment at school or even assault, the first thing you’ll want to do is figure out how to put a stop to the behavior.
But say you’ve been trying your best to get school officials to take action, and you’re frustrated by their lack of response. Can you sue the school district to force changes or get compensation for the harm your child has suffered?
It might not be easy to win in court—or get a good settlement. Your chances of success will depend on the circumstances, the evidence, and which laws apply.
Suing Schools for Negligent Supervision
Some states have anti-bullying laws that require school districts to have anti-bullying policies. But that doesn’t necessarily mean that private citizens can sue schools based on violations of those laws.
Still, students who’ve been harmed as a result of harassment (or their parents) might be able to file a personal injury lawsuit against the school for negligence. Schools do, after all, have a duty to provide a safe environment, and they may be considered negligent if they fail to provide adequate supervision.
Anyone suing a school for negligence must overcome several hurdles.
Immunity. Public schools (and some private ones) are usually immune from lawsuits except under certain circumstances. Immunity doesn’t mean you can never sue a school, but it often means that you have to file a claim with the school district first.
Failed duty. The school usually isn’t legally responsible if a student assaults a classmate out of the blue—without a previous history of harassment or misbehavior. In order to prove that the school is liable for failing to protect a child from peer harassment, one usually needs to show that school officials:
- knew a particular student or group of students had been bullying the victim
- could have predicted that the bullies would do it again, and
- didn’t take reasonable steps to prevent the damage that resulted when the bullies repeated or escalated the harassment.
Suing Schools Under Title IX for Sexual Harassment
If your child is a victim of sexual harassment or assault by schoolmates, you might be able to sue the school district based on a federal law known as Title IX. That law says any educational program that receives federal funds—all public schools and most private schools—may not discriminate “on the basis of sex.”
Sexual harassment is a form of illegal sex-based discrimination. It includes comments or behavior of a sexual nature, unwanted sexual advances, or sexual assault or coercion.
The U.S. Supreme Court has set a high bar for successful Title IX lawsuits based on sexual harassment by peers. The victim must show that:
- school officials knew about the harassment but did so little about it that their response amounted to “deliberate indifference,” and
- the harassment was so bad that it effectively deprived the victim of equal access to educational activities or programs.
(Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).)
Suing Schools for Harassment Based on Sexual Orientation or Gender Expression
Title IX doesn't mention discrimination based on sexual orientation or gender identity. But when bullies target gay or transgender kids, the bullying often includes forms of harassment that the law recognizes as being based on sex. For instance, if students push around and call a girl names because she has short hair and wears boys' clothes, the harassment might be covered under Title IX if it was based on her gender nonconformity. And if the harassment was bad enough and not addressed by the school, the parents might be successful in suing.
Suing Schools for Harassment Based on Ethnicity or Disability
According to the U.S. Department of Education’s Office for Civil Rights (OCR), bullying or harassment can be a form of discrimination if it interferes with a student’s ability to participate in any educational activities. Students who've been harassed because of their ethnicity or disability might be able to sue the school under federal or state civil rights laws, including:
- Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000d), which prohibits discrimination based on race, color, or national origin in all public schools and any private schools that receive federal assistance; and
- Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, both of which prohibit public schools from discriminating against students because of their disabilities.
Title VI doesn’t mention religious discrimination. But often, when students are harassed because of their religion, they’re also targeted because of their national origin or ethnicity.
Talking to a Lawyer
If your child has been the victim of harassment or assault by other students at school or during school-sponsored activities, consider consulting a lawyer. An attorney with experience in education law should be able to give you practical advice about reporting the problem to school officials and filing a formal claim with the school district or an agency like the OCR.
And if the school hasn’t responded to your concerns, an attorney who has handled cases like yours should be able to explain the state and federal laws that apply to your situation and whether you have good legal reasons (or “grounds”) for a possible lawsuit. There are deadlines for filing claims and lawsuits, so you should probably talk to a lawyer sooner rather than later if you’re if you’re considering court action.