CINCINNATI (CN) – The principal and vice principal of a Cincinnati elementary school argued before a Sixth Circuit panel Wednesday that they are entitled to immunity from claims brought by the parents of a third-grader who killed himself after being bullied repeatedly.
Gabriel Taye was 8 years old when he hanged himself with a necktie in his room in January 2017, two days after he was knocked unconscious by a bully in the boys’ bathroom at Carson Elementary School.
School administrators did not call 911 when Taye awoke in the bathroom, waited for over an hour to call his mother, Cornelia Reynolds, and then lied and told her that he fainted, according to court records.
When he returned to class a day later, Gabriel was bullied again in the bathroom and had his water bottle flushed down the toilet.
He hanged himself in his bedroom that night.
Karen Meyers, the administrator of Taye’s estate, along with Reynolds and Benyam Taye, the boy’s father, filed suit against the Cincinnati Board of Education and several school officials in 2017.
U.S. District Judge Timothy Black denied Principal Ruthenia Jackson and Vice Principal Jeffrey McKenzie’s motion to dismiss several state law claims, despite their argument that a failure to respond to bullying does not constitute an “affirmative act” under due process law.
Black, a Barack Obama appointee, ruled the school officials’ lies about how Taye sustained his injuries and concealment of bullying at Carson Elementary not only constituted affirmative acts, but also increased danger to the elementary school student.
The judge also denied the officials’ motion to dismiss the family’s wrongful death claim, and cited the 2017 Sixth Circuit opinion in Tumminello v. Father Ryan High School, in which the Cincinnati-based appeals court ruled that a school can be held liable if it is aware of a student being bullied and does nothing to prevent further incidents.
“Plaintiffs have alleged not only that the Carson defendants were aware that Taye was a victim of abuse and harassment, but that they concealed that abuse and harassment from Taye’s parents,” Black wrote. “Therefore, the court finds that Taye’s suicide was a reasonably foreseeable consequence of the bathroom attack and the Carson defendants’ cover-up of that attack.”
Attorney Aaron Herzig argued on behalf of the school administrators Wednesday and was grilled by the Sixth Circuit panel throughout his argument.
Herzig told the panel that denying his clients immunity would be “opening up whole new vistas of liability” for school officials, and said no case law supports the conclusion that officials must reduce student-on-student violence to zero.
The attorney also said the complaint makes no allegations of bullying as defined by Ohio law, an argument that failed to convince the panel.
U.S. Circuit Judge Jane Stranch, an Obama appointee, rebuffed Herzig and said the complaint includes at least 48 references to bullying, even though the majority of the instances were labeled under the term “aggressive behavior.”
“Nothing in the complaint suggests … this student ideated suicide or was depressed,” Herzig responded.
U.S. Circuit Judge Bernice Donald, another Obama appointee, reminded Herzig that his appeal came at the motion to dismiss stage, where all allegations in the complaint must be taken as true, and asked somewhat incredulously what else Taye’s family would have to allege to survive the motion to dismiss.
Attorney Jennifer Branch argued on behalf of Taye’s parents and his estate, calling Herzig’s arguments regarding a statutory definition of bullying and the use of the term “aggressive behavior” a “red herring,” and pointed out that the term is taken from the school’s own handbook on bullying.
“These parents had no idea how dangerous his third-grade school was,” Branch said. “These parents had no idea what was going on at Carson Elementary School.”
The attorney said even if they were constrained by the state’s definition of bullying, which requires multiple instances perpetrated by the same bully, the boy’s parents could meet the standard because the student involved in the bathroom incident had previously punched Taye in the face and given him a bloody nose.
Branch said in an interview after the hearing that she thought it went “phenomenally well,” while mentioning that her opposing counsel had to deal with a flurry of questions from the panel of judges.
She said she expects the decision of the lower court to be affirmed, and thinks the Sixth Circuit wants to establish a standard for bullying cases moving forward.
Herzig declined to answer questions from reporters.
U.S. Circuit Judge Richard Griffin, a George W. Bush appointee, rounded out the panel.
No timetable has been set for the court’s decision.