School Ducks Liability For Bullying

     (CN) – A federal judge in Pennsylvania found that a high school is not liable for the constitutional claims of a student who says she was bullied by her teammates on the school basketball team.
     U.S. District Chief Judge Yvette Kane, in Scranton, granted summary judgment to Loyalsock Township School District, high school principal Allen DiMarco and superintendent Richard Mextorf. Kane found that Molly’s Kirby’s claims for violation of freedom of association, due process, equal protection and municipal liability were all insufficient.
     Kirby, who graduated in 2009, said she quit the team after she was bullied by five teammates. She said the girls wore T-shirts stating “Out of Control” – a statement she believed was directed at her – and that one of the girls spread a rumor that she was pregnant.
     Kirby claimed her right to freedom of association was violated when the school failed to punish the girls for bullying her.
     But Kane found that Kirby failed to show how two forms of “protected association,” intimate and expressive association, were violated.
     “Assuming that defendants’ conduct did cause plaintiff to quit the basketball team and avoid certain school functions, plaintiff has failed to prove that the relationships at issue were of the sort afforded special constitutional protection,” Kane wrote.
     Kane added that Kirby’s “friendships with her classmates and basketball teammates” fell outside the scope of the First Amendment.
     “It appears that plaintiff is not arguing that defendants interfered with her right of association for expressive purposes. Indeed, plaintiff has not alleged any expressive purpose to her associations with her classmates. Moreover, the court finds that there is nothing in the record to suggest the relationships at issue were created for the purpose of engaging in activities protected by the First Amendment. To the extent that plaintiff alleges a claim of violation of the freedom of association for expressive purposes, this claim also fails.”
     Kirby also claimed that the assistant principal, Dr. Reitz, who usually disciplined students for such offenses, did not conduct an investigation, violating her right to equal protection.
     But Kane found that Kirby failed to prove she had been treated differently than similarly situated students, and that her allegations of disparate treatment were too general to back up her claims.
     “While Dr. Reitz testified that he would normally conduct investigations into student complaints, and that it was rare for defendant DiMarco as principal to conduct investigations, Dr. Reitz also testified that from 2007 to 2009 he was not directed by defendant DiMarco to conduct any investigations into complaints of bullying despite the fact that the school received eight to ten complaints of bullying from students other than plaintiff during that time. Plaintiff has failed to identify any similarly situated student whose complaint was investigated by Dr. Reitz at the direction of defendant DiMarco,” Kane wrote.
     Kane added that it was “undisputed” that Kirby turned down an opportunity to participate in a parent conference with one of her alleged tormentors – the girl Kirby claimed was responsible for the pregnancy rumor.
     “Plaintiff cannot reject the administration’s offer of a parent conference only to later claim that she received disparate treatment because another student’s complaint was resolved through such a conference,” Kane wrote. “Because plaintiff has failed to offer any evidence that she was treated differently than others similarly situated, the court will grant defendants’ motion as to plaintiff’s equal protection claim.”
     Kane also threw out procedural and substantive due process claims. She found no Supreme Court precedent to support a “protected property interest” for public school students taking part in extracurricular activities.Kirby said she quit the basketball team and did not attend the senior prom as a result of the bullying.
     Kane added: “Plaintiff concedes that ‘there is no dispute that education itself does not constitute a fundamental right of protection of the federal constitution.'” Therefore, Kirby has no “fundamental right to participate in extracurricular school activities.”

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