HOUSTON (CN) - A school board president must face claims by a mother whose teenager committed suicide after school officials ignored repeated complaints of bullying, a federal judge ruled.
While Asher Brown was in the eighth grade at Hamilton Middle School, he "was a victim of incessant bullying by a number of students," according to a federal lawsuit by his mother, Amy Brown Truong.
He killed himself in September 2010, shortly after a bully kicked him down two flights of stairs.
The complaint recounts several instances of bullying heaped upon the boy, who had Asperger's syndrome, spoke with a lisp and walked with a slight "sashay" because he was pigeon-toed.
"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," the complaint states.
"On numerous occasions someone would run up to Asher when he was running track, and a student would stop short in front of Asher, so that Asher would run into that boy and simulate anal intercourse. Then someone would call out, 'Hey faggot, quit trying to [email protected] me. [Sic.] Hey guys, 'Asher is trying too butt [email protected] me.' On many occasions these incidents were often observed by the physical education and coaching staff.
"Also on numerous occasions Asher would be tying his shoe lace and D.K., D.H., K.C. and another D.K., would come up behind him, simulate anal sex and yell out, 'You like this don't you? You [email protected] faggot. Is this what Buddha does to you guys, doesn't he? Have you [email protected] Budda today, Boodie boy?' all in reference to being known as a follower of the Buddhist faith. Asher himself filed a complaint to school administrators but there was no record in any of the students' files that any were ever punished."
Truong says her husband, David Truong, went to Hamilton Middle School numerous times to complain about the bullying, leaving several notes with the receptionist.
The mother also gave Asher notes to pass onto school officials complaining about the bullying, and only once did a school official respond, according to the complaint.
Assistant Principal Alan Durham called Truong to say he would investigate the bullying claims, but he allegedly never followed up.
In a federal complaint last April, the child's estate sued Dr. John Ogletree, board president of the Cy-Fair Independent School District; superintendent David Anthony; Hamilton Middle School principal Ify Ogwumike; and assistant principal Alan Durham.
Though the school and district adopted a policy to deal with bullying, in response to recent federal and state legislation, officials "failed to put these policies into practice and only gave these concerns 'lip service,' and turned a 'blind eye' to the problem," Truong says.
After the bully kicked Asher down the stairs, another student witness filled out an incident report, but the school took no action, according to the complaint. Hamilton Middle School punished the bully by sidelining him from one football game.
The school covered its tracks after Asher's suicide, Truong claims.
"Representatives of the school district staff have destroyed and withheld evidence including but not limited to incident reports filed by Asher and other students about bullying and harassment, videos of Asher and other being bullied and harassed during school and on the bus, documentation of David Truong signing into the school to meet with school officials, videos of David Truong coming to the school to meet with school officials as well as documentation of telephone and email communications from Amy and David Truong to and from school officials," the complaint states.
Ogletree, the board president, moved to dismiss the federal claims against him in official capacity.
On Tuesday, U.S. District Judge Keith Ellison said Asher's estate can proceed with civil rights claims under section 1983 and Title IX, which proscribes sex-based inequalities in any campus program or activity.
Truong has adequately argued pled that the district acted with deliberate indifference to its policies by ignoring the harassment and bullying of Asher, Ellison found.
Ogletree said Title IX requires that the school principal be informed of harassment before a school board can be deemed to have the "actual knowledge" under Title IX, but Ellison balked at this maneuver.
"The complaint alleges that Amy attempted to contact CFISD through a variety of means, including in person and through telephone calls, emails, and handwritten notes," the 37-page decision states.
"In addition, Asher allegedly filed incident reports with the school administration, thereby making use of the very system CFISD mandated for reporting harassment and bullying. The complaint further alleges that phone calls and other communications went unreturned and that in-person visits were repeatedly rebuffed by a receptionist who essentially stonewalled Truong's access to higher-ups in the school administration.
"CFISD cannot now escape liability by pointing to the success of its affirmative efforts to thwart Asher and his parents' access to the 'appropriate school officials,' such as the principal.
"Further, even under defendant's preferred test, the complaint alleges that Truong made contact via telephone with the Assistant Principal, Alan Durham, and the eigth grade principal, Mr. Bilstein, and expressed her concerns to both individuals."
The judge dismissed claims alleging that Ogletree violated the First Amendment, the Rehabilitation Act and the equal protection clause of the Constitution.
Nowhere in the complaint does Truong mention whether she seeks damages for a free speech violation or religion claim, according to the ruling.
Since there is no allegation that the district singled Asher out with the toothless anti-bullying policy, there is no basis for an equal protection claim. Gender discrimination claims fail since there is no allegation that the district responded differently to reports of bullying involving female bullies and victims.
There is no connection between Asher's disability, and the school district's actions, or inaction, so Truong does not have a claim under the Rehabilitation Act, the court found.
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