Sua Sponte: NSBA urges Eleventh Circuit to preserve the high deliberate indifference standard in disability-based harassment cases
On November 28, 2012, NSBA, along with the Georgia School Boards Association, Georgia School Superintendents Association, and the Alabama Association of School Boards, filed an amici curiae brief in Long v. Murray County School District, Docket No. 12-13248, now before the U.S. Court of Appeals for the Eleventh Circuit (AL, GA, FL). The appellate court will review the decision by the U.S. District Court for the Northern District of Georgia, as to whether it “correctly concluded, relying on Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), that [the parents of a special education student] had not presented evidence of ‘deliberate indifference’ required to establish a peer-on-peer harassment claim” under Section 504 of the Rehabilitation Act or the Americans with Disabilities Act.
NSBA warns the Eleventh Circuit that the U.S. Supreme Court’s intentionally narrow Davis standard should not be expanded because it “would discount years of precedent regarding deference to public officials generally, and school officials in particular with respect to matters of school discipline and safety.” School officials are in the best position to develop effective strategies to create safe learning environments.
NSBA also identifies that the parents are attempting “to change the standard to one of simple negligence, in which a court would look at an ‘industry standard’ for appropriate prevention and response to bullying in schools, as evidenced by agency guidance and ‘expert’ reports and testimony,” which NSBA argues “is dangerous for many reasons.”
In the brief, NSBA states:
True harassment based on a protected category such as sex, race or disability, has a vastly different legal significance from peer bullying, which can be based on any characteristic. To conflate guidance for public schools regarding bullying (which may or may not constitute harassment) with a legal standard for monetary damages under federal law will subject thousands of school districts to liability needlessly.
NSBA’s brief was written by Deputy General Counsel Naomi Gittins, Council of School Attorneys Director Sonja Trainor, and Senior Staff Attorney Leza Conliffe.