Students sexually abused by peers face struggles in court

Posted at 5:13 AM, May 22, 2017
and last updated 2017-05-22 05:13:38-04

When children sexually assault other children at school, sometimes the only measure of justice comes through the courts.

The barriers are formidable, and can lead to long, grueling fights: Public schools in many states enjoy powerful shields, including caps on damages if they lose a lawsuit and high legal hurdles to prove misconduct. And a handful of states offer schools complete immunity from lawsuits in state court.

But the incentives for families are powerful, too — protecting their children, winning reforms and sparing others the nightmare of sexual assault.

In Miami, the mother of a second-grade boy filed suit in 2012 after she said she pleaded in vain for months for administrators to protect her son from sexual abuse by an older boy at his charter school. Eventually, the 7-year-old tried to kill himself by walking into traffic with his eyes closed, according to the family’s lawsuit. Two years later, the boy testified, he still had nightmares his tormenter would crawl in through his bedroom window and kill his mother.

His mother said she came to believe the school was more worried about its reputation than her son.

“You can’t protect the institution and forget about the students,” said the mom, who The Associated Press is not naming to protect her son’s identity.
Ultimately, the family prevailed, but only after a legal battle that lasted more than three years.

An AP investigation has detailed how K-12 schools in the United States can fail to protect students in their care from sexual assault, sometimes minimizing or even covering up incidents.

Holding those schools accountable takes both fortitude and patience, according to lawyers who bring court cases against school systems.

Families can face judicial politics in non-jury trials and, outside the courtroom, community pressure to drop their cases. Even when schools agree to settlements, they often insist on confidentiality, which shields them from public accountability.

The fight is so tough that Nashville, Tennessee-based attorney Eddie Schmidt said he often tries to talk families out of suing.

“A lawsuit is very expensive, very uncertain and it takes a long time,” Schmidt said.

Only in rare cases do victims of student-on-student sexual assault win large verdicts. Most lawsuits never make it to trial. Many get thrown out on legal grounds, while others are settled pre-trial.

Even fewer are criminally prosecuted because the burden of proof is beyond a reasonable doubt, which is difficult to meet in cases involving children, said Jeffrey Herman, the Florida lawyer who represented the Miami boy.

For many aggrieved families, the fight is particularly worth it if it prompts policy changes that can make schools safer for their children and others.

“Why do people go to court? Because no one’s helping, nothing’s moving,” said Richard Vacca, a senior fellow at Virginia’s Commonwealth Educational Policy Institute. “Court decisions have a major impact in how schools are run.”

The Miami case resulted in one of the largest verdicts in student-on-student sexual abuse. Although it was a public charter school, Herman successfully argued that Florida’s $200,000 cap on damages in lawsuits against schools did not apply because the institution was managed by a private company.

A jury awarded the family $5.25 million in 2014. The school appealed and, in 2015, reached a confidential settlement for an undisclosed amount.

Not all states have such caps. In California, for example, there are no liability damage limits on cases brought against a public school.

But other restrictions abound, depending on the state. Virginia and Georgia give school districts absolute immunity from lawsuits in state court. In Illinois, the families of students must show there was willful and wanton misconduct, not just negligence, on the school’s part.

Adele Kimmel, a senior litigator who specializes in student abuse cases for the Washington, D.C., nonprofit Public Justice, said any family would have to overcome a variety of obstacles in filing lawsuits under state law.

“They include whether you can even sue a school district, what the liability standard is, how high a hurdle it is, whether you can sue school officials and if so, for what types of decisions,” she said.

In Tennessee, for example, someone suing a government entity such as a school has no right to a jury trial, Schmidt said. Instead, any case filed in state court would have to be heard by an elected judge, who would decide whether a fellow government employee, such as a school superintendent or principal, was negligent.

“The odds of that happening are extraordinarily slim,” Schmidt said.

So when Schmidt agreed to represent two seventh-grade boys who said they were sexually assaulted in the locker room of their rural Tennessee school after repeated harassment, he filed the lawsuit in federal court and claimed their civil rights were violated under Title IX, the federal law that prohibits sex-based discrimination in federally funded programs.

The U.S. Supreme Court ruled in 1999 that public school districts, regardless of the state, could be held liable for monetary damages under Title IX if students sexually assaulted or harassed by classmates could clear certain legal hurdles.

Victims must show that school officials with the power to act were deliberately indifferent to known sexual harassment, and also prove the harassment was “so severe, pervasive, and objectively offensive” that it effectively barred their access to an education.

While that means victims can sometimes seek justice in federal courts when a state lawsuit is not feasible, it’s not an easy road. Law professor Catherine MacKinnon, who pioneered the use of Title IX in school sexual harassment actions while at Yale University, analyzed federal courts’ treatment of the deliberate indifference doctrine over many years and found that about 6 in 10 such cases never made it past pretrial motions.

Still, Kimmel noted, “there are many students that have very good cases that can satisfy the threshold.”

Schmidt’s Title IX action in Tennessee took years to resolve, and required dozens of depositions and expert witnesses as it wound its way through district and appellate courts. Ultimately, the two families won a $200,000 verdict, upheld by an appeals panel, which turned down the school’s argument that it was not deliberately indifferent but acted reasonably when it learned of the harassment. The director of schools in the Tennessee district declined to comment on the matter or say whether any changes had been made since the 2011 verdict.

One advantage to filing in federal court is that it often removes a case from the community where victims may be under pressure to stay silent.

Attorney Terry Heiss spent more than four years representing a boy from rural Michigan who said his abuse began with name-calling and bullying in sixth grade and then escalated. In ninth grade, according to evidence introduced at trial, he was assaulted in the high-school locker room after one student blocked the door and another, a star athlete, climbed on top of him while naked and rubbed his genitals in the boy’s face.

The boy’s parents filed a complaint with police and a lawsuit in U.S. District Court for the Eastern District of Michigan. And although court records show the student eventually pleaded guilty to a misdemeanor, the community blowback was fierce.

“The community turned against the (family) for a season,” Heiss said, adding that the family received phone threats and had to temporarily relocate. “So, not only do children face harassment, the parents have a level of harassment trying to do the right thing.”

Heiss’ client pressed on, testified at trial and — even though he broke down crying on the witness stand — said he felt it was worth it in the end.

“One of the things that kept him going, he didn’t want it to happen to someone else,” Heiss said.

Jurors returned an $800,000 verdict — more than the $500,000 Heiss had requested. Both sides then reached a confidential settlement for an undisclosed sum.

A judge later overturned the verdict, citing a lack of evidence that the school acted with deliberate indifference to severe, sex-based harassment, but the settlement stands.

The AP is not naming the boy because it does not identify victims of sexual assault. The district’s superintendent did not respond to requests seeking comment.

Geography also plays a role in whether families prevail. A jury pool in a rural area may be less likely to return a big verdict than a pool in New York City, for example. In areas where there are racial biases, or biases against same-sex relationships, it can be more difficult to find a jury willing to rule against a school.

“You might find that a jury would be very sympathetic to a sexual assault where a very big boy attacks a very small girl,” Kimmel said. “But what about cases where it’s same-sex abuse, where it’s boy-on-boy?”

More than money, forcing change is often the main motivator in such cases.

Some settlement agreements can require anti-bullying training for school staff, teachers and students, in addition to money — or sometimes instead of it.

Vacca has followed such cases in his work at Virginia Commonwealth University advising Virginia schools and lawmakers about sound educational policies. He said schools need to be “pro-active,” with policies and procedures that are updated, enforced and communicated to parents and the wider school community.

Schools must investigate if an assault is reported, he said, and can help avert such situations by training students on peer intervention and mediation.

“It’s an education process,” Vacca said. “We have to be very forward about it, be public about it, communicate with parents.”

In the Florida case involving the second-grader, the mother said she hired a lawyer only after reaching an impasse with Downtown Miami Charter School.

According to the family’s lawsuit, an 11-year-old boy had forced her son to perform oral sex in the backseat of a transport van on the way home after school. The mother said she reported it to the school, which promised to monitor the older boy. Later, he cornered the second-grader twice in a school bathroom and again forced him to perform oral sex, the lawsuit said.

In his video deposition testimony played at the 2014 trial, the boy described his agony after the second bathroom attack, sure the abuse “would happen again and again.” He said the smell of a school bathroom would trigger painful memories, making him feel “shell-shocked,” a feeling he described as “very nervous, very upset, very scared.”

After his suicide attempt, the mother said, “I felt like I needed to go ahead and see what my options were, because the school was not doing enough.”

In its response to the lawsuit, the school said it took prompt, reasonable measures to prevent the boys from interacting and was not notified of any inappropriate interactions on school property. It also argued that administrators could not have foreseen what happened, and therefore the school was not liable, and cited the doctrine of sovereign immunity. During the trial, the school’s lawyer argued a lack of evidence.

The boy’s mother remembers the challenging moments, and the moments of hesitation. She had to turn over medical records and open herself and her son up to invasive questioning. But ultimately, she said, the little boy’s testimony gave him a sense of empowerment, being able to say in his own words what happened and how he felt about it.

“It seemed like he was vindicated simply by saying, ‘This happened. It hurt me. I’m still here.'”