Judge Tosses Claim Over Bullied Teen’s Suicide

     HOUSTON (CN) – A school district will not face claims that it violated the due process of a bullied teenager who committed suicide, a federal judge ruled.
     Amy Brown Truong says her son Asher Brown endured constant bullying while attending Hamilton Middle School in the Cypress Fairbanks Independent School District.
     Asher had Asperger’s syndrome, spoke with a lisp, and walked with a slight “sashay” because he was pigeon-toed, according to the federal complaint.
     “He was made fun of because of his size, because he had a lisp, because he was a Buddhist and because ostensibly he was gay,” Truong says.
     Though Asher and his parents and friends complained to school officials about the bullying, their complaints were ignored and the school slacked on its duty to protect her son, according to the complaint.
     Two weeks after a bully threw Asher down the school stairs, the eight-grade boy killed himself in September 2010.
     The school district is the only remaining defendant in Truong’s lawsuit. In February 2012, U.S. District Judge Keith Ellison said the mother could pursue a due-process claim under section 1983 and a harassment claim Title IX, which proscribes sex-based inequalities in any campus program or activity.
     But Ellison dismissed the due-process claim last week as well, after reconsidering the claim in light of Doe v. Covington County School Board, a decision the 5th Circuit published March 23.
     “In Covington, the Fifth Circuit considered whether the plaintiff – a nine-year old elementary school student – adequately alleged a violation of a constitutional right where the plaintiff was checked-out and molested on six separate occasions by a man who was not authorized to take the plaintiff out of school,” Ellison’s 11-page order states. “As the Fifth Circuit explained, the plaintiff’s constitutional claim was based not on the individual’s molestation of the plaintiff, ‘but rather upon the school’s allegedly deficient check-out policy, which allowed the molestation to occur’ insofar as it did not require school officials to verify the identity of individuals before releasing children into their custody. Finding that the school district defendants had no constitutional duty to protect the plaintiff from non-state actors, the Fifth Circuit determined that the plaintiff failed to allege a violation of any constitutional right. Further, the Fifth Circuit clarified that a school district’s duty to protect a student is contingent upon the existence of a special relationship, as defined in the Supreme Court’s DeShaney opinion.”
     DeShaney v. Winnebago County Department of Social Services involved a 4-year-old boy, Joshua DeShaney, beaten to the point of severe mental retardation by his father.
     Finding that Asher and the Cypress Fairbanks School District did not have a special relationship, Ellison said there was no violation of due process.
     Though the court initially “focused on CFISD’s inaction as evidence of deliberate indifference,” it should have considered a special-relationship exception, Ellison found.
     “This court’s focus was misplaced,” Ellison wrote. “Covington makes clear that any duty to protect must be moored to a special relationship.”
     Ellison reflected on what he called the “troubling” limits imposed by DeShaney and Covington.
     “The holding in Covington has the undesirable effect here of allowing a school district to affirmatively enact anti-bullying policies which purport to assume responsibility to react to private violence, that is, violence inflicted by other students, yet absolve the same school district of responsibility for enforcement of such policies absent the existence of a special relationship,” Ellison wrote. “Sadly, this is not new.”
     “Following Covington, in the absence of a special relationship between the school and the student, public school officials who enact anti-bullying policies do not violate a student’s constitutional due process rights by failing to enforce such policies, no matter how pervasive the bullying, no matter how hateful, and no matter how many lives, in addition to Asher’s, are lost,” Ellison added.
     The court further lamented that the Texas Tort Claims Act prevents Truong from seeking relief under state law.
     In a footnote, Ellison noted that “defendant argues that this is not entirely true, proposing that plaintiff could sue the students who bullied Asher.”

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