Legal experts: Lawsuit forces Anoka-Hennepin to prove it responds to bullying

The Anoka-Hennepin School District claims it has already investigated harassment allegations brought by five students and concluded school officials in each case responded appropriately.

Now they must prove it in court, said attorneys who have advised or represented school districts in similar cases across the country.

"The keys of the defense of that lawsuit are to be able to show that they've taken some action to stop the bullying, to prevent it from continuing," said Dana Fattore Crumley, a Chicago-based education law attorney. "If the situation is continuing, you have to find a way to separate the kids, and it has to be in a way where the person who's the victim is not further victimized."

The five current and former students on Thursday sued the Anoka-Hennepin School District, Minnesota's largest, for allegedly failing to adequately respond to harassment for their actual or perceived sexual orientation. In the lawsuit filed by two national civil rights groups, the teens claim they were verbally abused, urinated on, stabbed with pencils and pushed against lockers.

Crumley, who represents Illinois school districts in lawsuits, said courts have held school districts to a high standard when it comes to bullying and harassment, because it affects student learning. On the other hand, if a school district can show steps were taken to address the issues and can document those actions, it can successfully defend such lawsuits, she said.

"I don't think the courts expect us to completely eradicate every incident of harassment. That's impossible," she said.

The lawsuit will place additional scrutiny on Anoka-Hennepin's bullying and harassment policies. Tim Tobin, a Minneapolis attorney who represented the Royalton Public Schools in a harassment claim brought by an American Indian student, said Anoka-Hennepin officials will have to show that they are following their own policies and applying them in a consistent way.

"The legal standard is, what would a reasonable school administrator do under the same or similar circumstances?" Tobin said.

The parents suing Royalton school officials ended up withdrawing their lawsuit after Tobin argued they would have to bring in an expert witness to show the school district's response to the harassment was inadequate according to commonly-held school standards. But more than a dozen lawsuits involving harassment claims brought by gay students have led to either changes in how school districts respond to harassment or monetary relief for the students.

The Anoka-Hennepin case is similar to many of those cases in that it accuses school officials of failing to address the issue. But the Anoka-Hennepin case also has an added complexity: a curriculum policy on sexual orientation.

The policy states the topic of sexual orientation isn't part of the normal curriculum and that teachers should remain neutral if the subject comes up in class.

The question a court would have to answer is whether that policy, as the students and their advocates have argued, has contributed to a hostile atmosphere for gay students by making it harder for schools to fully address bullying and harassment.

Tobin said it's possible a court could come to that conclusion.

"The way you prove discrimination and harassment claims is in large part by proving what the atmosphere was in the institution," he said. "If, in fact, there had been previous incidents and the school district did not appropriately respond, it is absolutely true that that emboldens other students who might otherwise think twice about bullying somebody."

As an outside observer, education consultant Edward Dragan said it appears such a policy would only exacerbate a bullying problem. Dragan is a former school administrator who advises school districts on legal issues and has served as an expert witness in school lawsuits.

"It just helps maintain a climate and an atmosphere that is not open to differences and really does not help kids to learn," said Dragan.

"They could dig their heels in, and I think that's going to be a big mistake for the school district if they do that because they're only, I think, in the end going to have egg on their face," he said. "I think they ought to get into a situation where they're bringing people together from the community to begin a discussion about this issue."

The school district has argued that the so-called neutrality policy is an appropriate way to serve a community with diverse viewpoints on sexual orientation issues. It prevents teachers from telling students what they should believe, officials say.

That goal is valid and shouldn't be confused with bullying issues, said Jeremy Tedesco, legal counsel for the Alliance Defense Fund, a conservative Christian legal organization.

"Assuming that some of the bullying allegations are true, the schools need to more vigorously enforce their anti-bullying policy," Tedesco said.

But Tedesco believes the curriculum policy would hold up in court.

"School districts are given very broad discretion over curriculum decisions, and that's what that policy is," he said.

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