This article was written by Robert M. Schwartz, Chief Counsel, NJPSA.
When faced with a lawsuit brought by parents on behalf of a student who has been bullied, can a board of education then bring suit against both the alleged bullies and their parents to have them contribute to any damage award that may be made? This was the issue addressed in a recent superior court decision entitled V.B. a Minor by his Parent L.B. v. Flemington/Raritan Regional Board of Education & Hunterdon Central Regional High School and Hunterdon Central and Flemington/Raritan Regional High School v. C.W., J.A. and K.I.
The plaintiff had filed a complaint against the Flemington/Raritan Regional Board of Education and the Hunterdon Central Regional High School claiming damages under the New Jersey Anti-Bullying Bill of Rights Act, N.J.S.A. 18A:37-13 et seq. and the New Jersey Law Against Discrimination (NJ LAD), N.J.S.A. 10:5-2 et seq. The allegation was that from the time V.B. was in 4th grade through 10th grade he had been subjected to a “hostile school environment.” V.B. claimed that he repeatedly had been taunted for being overweight, referred to as gay, had negative comments made about the length of his hair and generally did not fit in. The specific allegations were:
1) In 4th grade, when V.B. was significantly overweight, he was taunted and disparaged on numerous occasions, being told to put down “the box of Twinkies” and to exercise.
2) In 5th grade, the hurtful teasing continued with students calling V.B. fat and chubby.
3) In 6th grade, V.B. continued to be subjected to disparaging comments about his weight, which now included comments making fun of his loose fitting clothes. He was called “chubs,” “lardo” and “flubber.”
4) In 7th grade, in addition to being called “chubs,” students increasingly referred to V.B. as “gay.”
5) In 8th grade, in response to the increasing negative effects of the bullying comments, V.B. suffered a dramatic debilitating weight loss.
6) In 9th grade, V.B. was called “caveman” because of the hair on his legs. He was also called “gay, homo and fag.” During the same school year, V.B. was subjected to cyber bullying with Facebook messages referring to him as being gay.
7) In 10th grade, V.B. continued to endure bullying, which was now more focused on his sexual orientation and resulted in his hospitalization for various ailments including anorexia.
V.B. said that over a period of time he had reported the incidents to a number of district employees, including teachers, guidance counselors and various administrators, but the bullying conduct nevertheless continued. V.B. said that on one occasion when he told a principal about what was happening, the principal said that she would “talk to the bullies.” When a student jabbed him in the stomach on several occasions, he reported it to a vice principal. V.B. said that the vice principal’s response was to say that “her sister used to do this to her” followed by “tips on how to handle bullying.”
Later, V.B.’s parent and guardian, L.B., called the police, but was told that this was a school matter and should be taken up with school administrators. When L.B. showed up at the principal’s office without an appointment, she was initially told that absent an appointment she couldn’t see the principal. Nonetheless, she did speak to the principal who told her that he would investigate the matter and take whatever steps were allowed by the district’s policy to correct the situation. L.B. was also referred to the resource officer in the school who told her that V.B.’s “civil rights were not violated unless he was gay.” Also, when attending the Hunterdon Central Regional High School, V.B. alleged that he was told to study weight loss issues in health class and to participate in strenuous activities when in gym, like “rock climbing.”
The court’s decision also noted that L.B. had directly contacted the mother of one of the alleged bullies, D.W. to try to change the situation. The mother’s response was that D.W. was “uncontrollable.” When L.B. contacted the father of one of the other alleged bullies, T.M., who had posted a Facebook message stating that V.B. was a fag, T.M.’s father said that it had been done “without his or his wife’s knowledge.”
The suit against the two school districts did not name as defendants the students who were responsible for the alleged acts of bullying or their parents. Certainly, the plaintiff could have pursued that option. However, only the two boards were named defendants. As a result, both boards filed what is referred to as a “third-party” action against the alleged bullies and their parents seeking to make them defendants in the case and to require them to share in any potential payment of damages. The two boards of education bassed their cause action on the New Jersey Joint Tortfeasors Contribution Act which is more typically used in negligence actions. The Act is intended to allow any defendant to bring in other defendants not named in the suit to make them bear financial responsibility for the act or acts that result in an award of damages. It appears that this is the first time that a board of education has used the theory underlying the Joint Tortfeasors Contribution Act in the context of a case predicated on the Anti-Bullying Act and the NJ LAD.
In response, the parents of the students accused of the bullying conduct asserted the "parental immunity doctrine," which they said precluded the two boards from bringing such a cause of action. The doctrine is normally applicable in situations that involve the exercise of parental liability and customary child care. It generally does not apply in cases of a parent’s willful or wonton failure to supervise his or her children.
The two boards contended that if the alleged bullies and their parents had been placed on notice of the bullying claims made by V.B., and they had failed to take adequate measures to stop the bullying conduct, they too should be made financially responsible for any damages awarded by a jury. The court agreed.
In concluding that the parents of the students accused of the bullying conduct could not hide behind the parental immunity doctrine, the court held that, at the very least, the issue of whether the bullies and their parents should be made to contribute an award for damages was a question for a jury to decide. As the respective boards’ administrators may have been on notice of the bullying issues involving V.B., the court found that the students charged with bullying V.B. and their parents were also on notice of both the conduct and the emotional toll it had taken on V.B. The court referenced the communications by school administrators to the parents of students accused of bullying V.B., and the direct discussions that had been initiated by V.B.’s parent with the parents of at least two of the alleged bullies.
This case is far from over. Whether the plaintiffs will prevail and whether liability will be assessed against the two boards of education is uncertain. It’s also uncertain as to whether a jury will agree to hold the alleged bullies and their parents as “joint tortfeasors” responsible for a share of any damages awarded. If appealed, the court’s decision may be overturned. The case may still be settled. However, at this juncture, by allowing the boards to bring in as defendants the parents of the students charged with the bullying conduct, as well as the students themselves, the court has opened the door for other boards to follow a similar course of action; to hold bullies and their parents partially or wholly responsible for financial claims in actions for which boards of education would otherwise have to assume responsibility. Merely having this as a potential option creates yet another tool to assist boards and administrators in their continuing effort to prevent and/or stop bullying conduct.