The family of a boy who was shot to death at a Madison County middle school in 2010 is suing Madison school officials and others. They say the school officials failed to protect him from a problem student.

The News Courier reports (http://bit.ly/z6WjDi ) the lawsuit was filed Thursday in Madison County.

The suit states that school officials — including the school board, Superintendent Dee Fowler and Principal Robbie Smith — failed to protect Todd Brown from another student who had a history of behavioral issues.

Brown’s family maintains that the other student should not have been transferred to Discovery Middle School because of a history of bad behavior, and that school officials were aware of that history.

In March 2011 Judge Richard Caputo (Adam C. v. Scranton School District, 2011 WL 996171 (M.D. PA 2011)), ruled that the Schools knew that fights were not at all uncommon, that “kids were always getting hurt”  that “there were fights every day” and “police were frequently called to the school.”

The court also found that despite the frequency of fights, many of the staff were not trained in behavior management techniques or how to intervene in disputes.

Further the Court found that Plaintiff-student was involved in approximately twenty fights with other children.  That in April 2005 Adam was involved in a series of verbal exchanges with another student who had a history of behavior problems.  The verbal confrontation escalated to threats and ultimately physical blows.  The other child punched Adam, and both students then exchanged blows.

Following the fight, Adam’s mother was called to pick him up.  She noticed that one side of his face was swollen, and she took him to the emergency room.   Adam suffered an aneurism, headaches, eye damage and a decrease in cognitive functioning as a result of this fight.

In a summary judgment order, the Court ruled/found as follows:

• [T]he environment at Lourdesmont was, in many senses, awful. Fights occurred daily; students perpetrated violence against each other and against teachers, walked out of classes, and damaged school property. With a maximum of three staff members available to respond to fights, and only one being on duty at times, Lourdesmont had a demonstrated, perpetually inadequate system for crisis management. Other shortcomings at Lourdesmont only compounded these problems: NEIU teachers were forbidden from intervening in fights; teachers and therapists alike had little to no training in defusing students’ aggression.
• Public schools have an obligation to provide a free and appropriate public education to disabled students. 345 C.F.R. 104.33(a) (defining “appropriate education” in part as an education “designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met”).
• Private schools have no obligation to provide an appropriate education to disabled children. 34 C.F.R. 104.33 (providing FAPE only required for a “recipient that operates a public educational program”)
• A public school cannot abdicate its responsibilities to provide appropriate educations to disabled students by warehousing some in an environment utterly unequipped to meet their needs.  Thus Scranton School District (a public school) may be liable for denying Adam his FAPE by inappropriate placement.
• While a private school has no obligation under FAPE, Title III of the ADA defines an elementary private school or hospital as a place of public accommodation.  Thus a private school can be liable for discrimination under the Rehabilitation Act (RA) and ADA.  No discrimination was found in this instance.
• Private schools are held to a standard of ordinary negligence.  A negligence action requires that the plaintiffs prove: “(1) a legally recognized duty or obligation owed them; (2) a breach of that duty; (3) a causal connection between the breach of duty and the resulting injury, and (4) actual loss or damage. 
• The legally recognized duty in this instance is that schools have a duty of reasonable care under the circumstances.  While no liability attaches where personnel was competent, acted reasonable or where the injury was not reasonably foreseeable, here Plaintiff showed that the fight was foreseeable as the child that struck Adam was known to have “behavior issues” and suffer from emotional disturbance.  Additionally, this child had been involved in at least one other physical confrontation with another student. 
• The evidence presented by the Plaintiff was sufficient to require the case to go to a jury to determine whether the staff were properly trained and equipped to handle the many physical altercations occurring at school.

Thus Schools have a Duty to Train Staff In Breaking Up Fights and Defusing Student’s Aggression when the school is on notice that there are students at the school with aggression, emotional and behavioral issues.

A Harrisburg mother says educators didn’t PROTECT her son, who has Tourette’s syndrome

The mother of a middle school student has filed a federal lawsuit against the Harrisburg School District, alleging that its educators failed to protect him from bullying and assaults by other students.

The complaint accuses the district of negligence and intentional infliction of emotional distress by allowing other students to taunt, push and strike him.

The suit also accuses the district of disclosing the boy’s confidential personal information and education records to the general public without his consent.

Because the boy and his alleged tormenters are juveniles, The Register-Guard is not publishing their names.

Harrisburg Superintendent Brian Wolf declined comment on the suit, saying district officials do not discuss pending litigation publicly.

The suit alleges that classmates began bullying the boy in 2007, when he was a fourth-grader at Harrisburg Elementary School.

It says he was taunted with derogatory terms for homosexuals and offensive hand gestures. It says the district failed to address “escalating incidents” of such bullying over the years, creating a “hostile and toxic education environment” for the boy.

It alleges that other students hit, punched and spit on him; jumped on him, causing him to cut his head; and shoved him into a wall, breaking his thumb.

It says the boy repeatedly complained to teachers. It charges that at least one teacher responded by accusing him of lying. It says others admonished his alleged attackers, or punished both him and them with in-school suspensions. But the district failed to stop the other students’ actions, the suit alleges, and the boy stopped seeking teachers’ help.

The boy’s mother also complained to school officials and reported the broken thumb to the Linn County Sheriff’s Office, the suit charges, but the behavior still was “not addressed” at school.

After two months of “near-daily incidents of name-calling and harassment, all with the same anti-homosexual theme,” the boy in 2009 began begging to stay home from school, the suit says. His parents pulled him from school, it contends, after he began experiencing “diarrhea, stomach pains, anxiety, fear of adults, aggression toward his younger sisters, and general distrust of people.”

The harassment and physical attacks continued when the boy attended seventh grade at Harrisburg Middle School during the 2010-11 school year, the suit alleges. It charges that a teacher failed to intervene when another student grabbed and “dry humped” the boy in a locker room.

The suit says Oregon teachers and administrators are required to know federal laws prohibiting discrimination, including “student-on-student perceived gender discrimination.”

Yet, “as a result of the (Harrisburg) district’s unofficial policies, customs or practices,” the boy was “harassed, bullied, disciplined and punished by his fellow students” with behavior that was “condoned, tolerated and intentionally encouraged by the district,” the suit says.

Moral of the Story: There are consequences for failing to take action.

7th Circuit ruled that A special education teacher cannot sue her school district in Federal Court for injuries suffered while trying to block an autistic child from hitting her with a chair.

W.K. began second grade at White Eagle Elementary in 2005. Diagnosed with Asperger’s syndrome, the 7-year-old had a history of verbal outbursts and violent assaults and was determined to be eligible for special education services. In one month alone in 2007, teachers reported 34 outbursts and 36 physical outbursts. During this time, he averaged almost three “incidents” per day.

W.K.’s violent actions were so common at “teachers stopped documenting each such occurrence,” according to the court. “No one could be sure exactly when W.K. would have an outburst, or what would trigger it, creating a precarious environment for all who were around him.”
But his parents, wanting to keep W.K. enrolled in school with neighborhood friends, resisted recommendations to transfer the boy to a therapeutic day school.
Paula Jackson, the plaintiff, pushed for a transfer at multiple meetings during W.K.’s third- and fourth-grade years, and she unsuccessfully asked Principal Ronald Zeman to assign W.K. to a different support teacher.
Despite the frequent outbursts and violence, White Eagle outlined an individualized educational plan that included giving W.K. a private “office” to work in at times during the day.
Then in March 2008, while W.K. was in fourth grade, Principal Zeman asked Jackson to check on W.K. in the one-on-one office after the child had just calmed down from an outburst in which he threw objects around the room and at his teaching assistant.
Jackson said she found W.K. in a rage. When W.K. swung a chair a Jackson, she struggled to protect herself, fell backward and hit her head and neck on the white board.
The teacher was taken to the hospital while W.K. was suspended and transferred to an alternative school.
Jackson filed suit, alleging that the district had violated her constitutional rights by knowingly placing her in danger. A federal judge dismissed the case, and the 7th Circuit affirmed on Thursday, finding that the school warded off a constitutional violation by taking so many meetings, evaluations and actions with regard to W.K.
“As the unique facts of this case stand, although the defendants’ actions may well have been short-sighted, flawed, negligent, and tortious, they do not satisfy the standard for finding a constitutional violation,” Judge Ann Claire Williams wrote for the three-judge panel. “We do not lightly reach the conclusion that the defendants’ conduct does not shock the conscience.”
“Educational professionals who take on the extraordinary task of teaching children in public schools, including those who choose to teach children with disabilities, should not also be expected to endure frequent and unpredictable acts of violence,” Williams added. “We emphasize that at no time is it necessary for a student to inflict serious bodily harm on a teacher before a school is justified in deciding that a general education classroom is not the appropriate forum for a certain disabled student.”

Thus while the court held that the facts of the case at issue did not rise to the level of a constitutional tort, the Court did leave the door open for suit in State Court.http://www.courthousenews.com/2011/08/16/39025.htm