‘Families deserve a remedy’: Bill would allow lawsuits against school districts in bullying cases

By: - May 26, 2021 6:15 am
An empty school playground

New Hampshire schools reported 2,152 bullying incidents in the 2018 to 2019 school year – the latest school year for which data is available – with the highest number occurring in elementary schools. (Dave Cummings | New Hampshire Bulletin)

The bullying started on the school bus in kindergarten. It continued for years, repeating nearly daily. 

Shannon Bouchard knew her daughter, who has a speech disorder, was being occasionally teased on the bus by a bully. But she also thought the school had a handle on it.

“I thought it would stop,” Bouchard, who lives in southeastern New Hampshire, told a Senate committee in April. She took action early on, pressing the teacher at her daughter’s individualized education program meetings and bringing it up with other school officials. At every step, she received reassurance.

“I was assured by the bus company that there were video recordings on the bus, and they handled all acts of behavior and would be keeping a close eye on my daughter,” Bouchard said. 

It wasn’t until much later that Bouchard learned the extent of the abuse. Her daughter had been consistently targeted by one boy on the bus through elementary school and middle school. The bully would open her special education reports and read them aloud to others. He would inspire other students to join in the taunting.

Bouchard didn’t know much of this; her daughter had stopped telling her. She assumed the school would pass it on. 

“It was hard to recognize,” she said. “I was being constantly assured that it was being handled. This boy before the start of middle school had the whole school bus laughing at her.”

The worst incident, which occurred on the playground, involved a physical attack in which Bouchard’s daughter had pieces of her hair ripped out, Bouchard told the committee. Bouchard learned about it a month later from a parent of a school friend. 

“It was kept from me, and she never told me again for fear I would call the school and it would be even worse,” Bouchard said. “I expected the school district and the bus company to protect her.”

Years later, Bouchard and her daughter have struggled with the abuse – even after the bully was suspended from the bus and later allowed back on. The pain caused her daughter to withdraw socially and miss days of school. 

Now, Bouchard is advocating for a new remedy: a legal avenue. A bill working its way to Gov. Chris Sununu’s desk could give Bouchard and other parents a way to take their concerns to the courts.

House Bill 140 would create a private right to action for parents, allowing parents to directly sue school districts that were found to have been grossly negligent or to have committed “willful misconduct” in bullying cases.

According to the language of the bill, a school district commits “gross negligence” if it could be shown in court to have acted with “deliberate indifference.”

The bill passed the Senate Thursday after clearing the House earlier this year; if it is reapproved by the House and Senate, it will head to Gov. Chris Sununu’s desk this summer. 

It’s a major proposed change. New Hampshire has had an anti-bullying statute since 2000. That law, the Public Safety and Violence Prevention Act, requires school boards and districts to adopt written policies prohibiting bullying, including a reporting procedure, parental notification, an investigation process, and a list of clear consequences. And it mandates training for teachers and staff. 

But while there are internal processes for parents to pursue bullying claims, there is no mechanism to bring lawsuits in New Hampshire. In fact, the current statute explicitly prohibits those lawsuits

The bill has moved forward with rare bipartisan support. But it’s dividing parents, lawyers, and New Hampshire school officials. 

To supporters, HB 140 would create a powerful new tool for families. 

“Laws can’t solve every problem that we face,” said Rep. Erica Layon, a Derry Republican. “Caring support from a network of teachers, administrators, and parents won’t solve every problem either. What we can solve with the passage of HB 140 are those rare cases when parents are denied the knowledge they need in order to support their child when they are bullied at school.”

To opponents, the bill would open the floodgates to unnecessary and harmful litigation over complex gray areas.

“I would ask you to seriously consider the damage this legislation can do and will do to the important relationships between the schools and home,” said Matt Southerton, president of the New Hampshire Alliance for Public Charter Schools. “I firmly believe that this will negatively impact the quality of the investigation that schools are able to do, and it will pull the focus away from the very people we are trying to protect: our students.”

New Hampshire schools reported 2,152 bullying incidents in the 2018 to 2019 school year – the latest school year for which data is available – with the highest number occurring in elementary schools. 

Of those 2,152 reports, 976 were investigated by the schools and found substantiated. The numbers have stayed steady in recent years, Department of Education data reveals.

In 2019, a Nashua father took his daughter’s bullying case to Facebook, posting a video showing his daughter being physically attacked by another student. That incident drew criticism over an apparent lack of immediate action by school officials during the fight.  

Reporting can be patchy, too. Nationally, one in five children report being bullied, but only 46 percent of bullied students say they have notified an adult at school, according to a 2019 survey from the National Center for Educational Statistics

For Rep. Glenn Cordelli, the bill’s primary sponsor, the bill is aimed at accountability.

“We, the General Court, need to make sure that bullying issues are being taken seriously, and that parents of bullied children are being listened to,” the Tuftonboro Republican said.

“But when districts do not follow their own policies or the law, families deserve a remedy.” 

Gauthier v. Manchester School District

Many of the current legal constraints can be traced to an attack on a Manchester school bus.

In 2011, a bullying incident on a bus turned violent; one student punched another in the face. The victim of that attack didn’t report the incident to any school authority. But after receiving a report from the bus driver, the principal got involved anyway. 

During a meeting with that principal, Barry Albert, the victim downplayed the incident, asking that Albert not tell her mother. Albert told the student he was required to do so by the school’s bullying policy, a product of the 2000 anti-bullying law. In the end, he didn’t. 

Two weeks later, a second attack against the victim – this time in a school cafeteria – ended in a trip to the emergency room. It was only then, standing in the hospital, that Albert informed the victim’s mother of the earlier bus incident, as well as a string of cyber bullying messages against the victim that the school knew about. 

A four-year lawsuit, Gauthier v. Manchester School District, focused on why the mother, Danielle Gauthier, wasn’t told earlier.

At the time Gauthier was pursuing an untested approach: taking her frustrations directly to the school district in civil court. But the state Supreme Court quashed that approach. In 2015, it held that the statute prohibiting private rights of action against schools prevented the lawsuit. There was no common law duty holding schools responsible for informing parents about bullying either, the court found. 

For Megan Douglas, one of the attorneys for Gauthier in that case, the court’s decision made the landscape abundantly clear. 

“Currently there is absolutely no way to hold any of those adults and their school employers accountable for gross failures in protecting our children,” Douglas said at the Senate hearing. “… All that we want, as plaintiff’s attorneys representing these children, is for teachers to do their jobs.”

This year, advocates have pointed to the 2015 decision as an impetus for changing the law. 

Attorneys have joined in as well, pointing to the high barriers needed to bring forward any legal action against a school district. 

“It is very hard to bring a lawsuit – there are professional ethics requirements that prohibit attorneys from filing meritorious or frivolous claims,” said Marissa Chase, executive director of the New Hampshire Association for Justice, which represents trial attorneys. Making the wrong move could see an attorney disbarred, she said.

The law could help push districts to tighten their behavior – even without a lawsuit in the first place, Chase argued. 

“We truly hope that no lawsuits would be brought under this,” she said. “We don’t want to see children harmed. This is how our civil justice system works. When there are penalties in place, we tend to have better outcomes.” 

Legal costs

School officials see the situation differently. 

In crafting the bill, Cordelli and other supporters say the new legal action wouldn’t punish schools “for good faith conduct.” 

But some school advocates argue there are plenty of murky areas in which schools could be penalized for navigating impossible bullying situations.

“My concern is the current language of HB 140 may allow for unintended lawsuits,” said Kimberly Lavallee, who founded two charter schools in Manchester. “… Legal fees and insurance premiums are expensive for all schools. Small charter schools can be challenged to find affordable legal representation and liability insurance.” 

Lavallee takes bullying seriously; as a parent of two, she’s seen its effects first hand. But a bill allowing for open-ended litigation against schools is not the answer, she argued. 

“If the amount of lawsuits increases, so will the cost of insurance,” she said. “We’ll be facing higher premiums, high deductibles, and higher retention costs.”

Other school officials argued the law already provides a recourse for bullying 

“There’s no need for House Bill 140 when causes of action already exist,” said Barrett Christina, executive director of the New Hampshire School Boards Association. 

Christina pointed to a recently passed state law that allows parents to sue school districts over the mishandled discrimination incidents. That tool should be sufficient to handle most bullying incidents pursued by parents, he said.

Proponents of the law disagree; there are many areas of bullying that don’t fall neatly into discrimination categories, they say. A child could have poor hygiene, crooked teeth, wear a shirt that their peers mock, or have a “bad hair day” – all areas that could result in bullying that wouldn’t necessarily be captured under the current framework.

Finally, Christina and other opponents say the law opens the potential for an unintended side effect: parents of children accused of bullying bringing their own lawsuits.

“We have to also remember that the aggrieved person may not necessarily be the victim of bullying. It may be the perpetrator. … That doesn’t seem to be the intent of the bullying statute, and it’s certainly not good policy,” Christina said.

But to some parents – particularly those with children who have disabilities – the legal remedy is long overdue.

Katherine Shea, an advocate for and parent of autistic children, said for some children, the results of inaction can be tragic. 

“For at least two families of other autistic children, bullying was the final factor that pushed their unsupported, unhappy, and mistreated child – simply for being different – over the edge,” Shea said, speaking of the families. “And those children are no longer with us.”

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Ethan DeWitt
Ethan DeWitt

Ethan DeWitt is the New Hampshire Bulletin’s education reporter. Previously, he worked as the New Hampshire State House reporter for the Concord Monitor, covering the state, the Legislature, and the New Hampshire presidential primary. A Westmoreland native, Ethan started his career as the politics and health care reporter at the Keene Sentinel.