From Bullying to Sexual Violence: When School Officials Fail to Act


Editor’s Note: Bruce Mason, attorney for the plaintiffs in the lawsuit described in this article, is also the author’s father.

As parents, we have to put a lot of trust and faith in our school officials, particularly when our children are in elementary school.  We send them off, day after day, with fingers crossed that teachers and administrators will keep a watchful eye and help them navigate those tricky waters of growing up.  But we do so knowing that teachers and administrators can only do so much.  Kids get hurt, and sometimes kids hurt each other.  But in the normal course of a school year a child should not be the target of repeated sexual harassment, assault, and abuse.  One incident is criminal, but to have your child become the target of what can only be called a campaign of terror is every parent’s worst nightmare.  To have that campaign continue as teachers and administrators turn a blind eye is not only inexcusable, it is also against the law.

That’s the precise scenario facing some parents in the Omaha Public School system (OPS) as their children faced years of escalating threats that ultimately led to acts of physical violence.  Despite repeatedly notifying school officials, nothing was done.  Now OPS must answer to a civil rights lawsuit detailing the abuse its students suffered and the reckless indifference shown by school officials.

Both Title IX of the Education Amendments Act of 1972 and the 14th Amendment prohibit just this kind of scenario.  Just like Title VII protects all employees, regardless of gender, from having to work in a sexually hostile and abusive environment, Title IX offers those same protections for students, while the substantive due process and equal protection guarantees of the 14th Amendment requires that school officials maintain an environment that protects students’ privacy and bodily integrity.

According to the facts of the complaint, beginning in the 2007-2008 school year one student at Oak Valley Elementary School “engaged in continuous name calling, threats of violence and sexually explicit remarks” which he directed at two students while all the students were on school property or in the school, all during school hours.  The parents of those students placed “numerous” calls to the principal but nothing was ever done, despite school policies and procedures, state and federal laws requiring otherwise.

The abuse continued into the next school year and, as is typical with bullying, escalated into actual physical assaults. The principal was once again notified, and the principal again ignored the complaints and failed to address the situation in any fashion. It was becoming clear that the modus operandi was to turn a blind eye and let the perpetrator skate through the system until he was someone else’s problem.

By the following school year the physical violence then escalated to sexual violence.  School officials were again notified and still refused to act.  One of the victims was repeatedly called names like “whore,” “slut,” and “bitch,” while another was choked and hit in the face at recess.  The principal’s response to the parents’ desperate pleas to do something was to simply note that the offender was “troubled” and the principal would speak to him.  And when that “troubled” student’s behavior escalated to grabbing one victim’s breasts and buttocks, and demanding that she perform oral sex on him, the principal’s response to the parent and victim was to dismiss the behavior as a result of a “crush” and that because the victim was “well developed” neither she nor her parents should find this kind of behavior surprising.

The problems with the approach taken by Oak Valley Elementary school are as apparent as they are shocking and they expose the school district to significant legal liability.  As a recipient of federal funding, OPS is bound by Title IX of the Education Amendments of 1972, that prohibits a student from being “excluded from participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination under any education program or activity receiving Federal financial assistance.”  Since the sexual harassment took place on school grounds during school hours and was persistent and repeated, the failure by the district to take any remedial action also violates the victims’ equal protection and due process rights protected by the 14th Amendment. 

As described by Bruce Mason, attorney for the plaintiffs, the failure of OPS to protect these students is a breach of the most fundamental of duties a school has. 

“If you can’t protect students, you can’t educate them.  It’s as simple as that.  The state [and thusly the school district as a state actor] has a duty to preserve the privacy and to protect the bodily integrity of its students.”

The ramifications for a failure to meet this basic duty go much further than the horrific assaults suffered by a handful of students.  “It’s very much like sexual harassment in the workplace.  The entire environment is affected.”  In this case, the school district not only looked the other way, they made the situation much worse.  “If you put a vulnerable person in a more vulnerable situation then a duty arises to protect those rights.”

Mason’s point, and the lawsuit itself, underscores the really insidious nature of sexual harassment that takes place in educational settings.  In this case these are literally children, inching toward and entering puberty.  The assaults, and the response by administrators, reinforce and foster the power dynamic that discrimination depends on.  To the perpetrator it sends the message that sexual domination is not only acceptable, it is appropriate, and sends it at a very young age.  And to the victims it reinforces that their self-worth and value as a person is dependent on their willingness to abide by gendered preferences, regardless of biological sex.  Acting in a gender-appropriate way, including submitting to dominant and aggressive sexual behavior, is your duty.

Just like workplace sexual harassment cases, the biological sex of the victims doesn’t matter, and in this case the abuser targeted both young boys and girls alike.  Because, like all acts of sexual violence, this is a story about power, not sex.  That’s why OPS needs to be held accountable here.  Not just for justice for the victims, but for its simple refusal to acknowledge this fundamental truth–sexual violence is an expression of power, not of desire. 

The legal theory of this case is not necessarily unique.  Title IX recognizes a private right of action when a student has been deprived of access to educational services.  But by positioning this case as a civil rights case rather than a simple assault case, Mason makes an important point on behalf of his victims.  School administrators failed to recognize the fundamental dignity and humanity of their students.  Yes, these students were assaulted by a fellow student. But they were also stripped of their rights by the state.

As parents, when we send our children to school for an education, we send them off in part to learn cultural standards.  Those standards should not include an acceptance of sexual violence.  Too often this kind of behavior is dismissed as simple “bullying” and as an overreaction by sensitive parents.  Kids need to “toughen up.”  We then eventually read about the tragedies that unfold at the high school level where young girls and boys, victims of sexualized bullying, commit suicide because no one would come to their defense.

How many future offenders start off like this young boy?  How many blind eyes were turned?  And how many future acts of sexual violence could have been avoided if school officials had been willing to just do their jobs.

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  • erikal

    These events are troubling–especially since more and more of these attacks are in a cyber setting and through our vast social networking sites.  These are hard issues to wrestle with, especially since many of the victims and offenders are so young. 

    This article also made me wonder what happens to the victim and offender after the initial event(s).  What type of discussions are taking place, if at all, around bullying?  There’s a great organization that is confronting many of these issues–Communities for Restorative Justice (http://www.c4rj.com/). They offer some really great approaches to addressing these hard questions.

  • crowepps

    A local teacher told me that most teachers could identify the future criminals in their classes as early as kindergarten, and certainly by third grade.  Considering the enormous problem their behavior as adults causes to everyone, it would seem to me to be a no-brainer that reports of bullies would be met with aggressive remedial action, not just to protect the other students but in order to turn around the psychological maladoptions behind the behavior in an attempt to salvage the bully.

     

    Unfortunately, all too often attempts to do so through counseling and behavior modification are met with hostility by the parents, who believe that the child’s attempts to establish power and control are evidence he is ‘a leader’ or ‘going to be a real man’ instead of a future criminal.

  • crowepps

    And when that “troubled” student’s behavior escalated to grabbing one victim’s breasts and buttocks, and demanding that she perform oral sex on him, the principal’s response to the parent and victim was to dismiss the behavior as a result of a “crush” and that because the victim was “well developed” neither she nor her parents should find this kind of behavior surprising.

    I don’t know if anyone else remembers the case of the 13-year old girl groped on an airline.

    Here is what Emily told the police: She awoke to the man’s elbow rubbing against the side of her stomach, and he was really close to her. … Suddenly his hand was on her thigh, and he was tugging at her seat belt. Then he was pulling on her underwear. Emily said she pushed his hand away, and he put it back. She pushed it away again, took her seat belt off, and resituated her teddy bear between herself and the man. She moved as far as she could toward the aisle.

     

    That’s when the man put his hand inside her pajama pants and underwear, Emily later told the police, and he began moving his hand back and forth over what she called her “privates.”

     

    … When asked about Emily, Senyonga estimated her to be 21 or 22 years old. He believed this, he said, because “she was a big girl.” He also told police she was mature and that she was well-endowed in the breasts.

     

    http://www.sfweekly.com/2009-07-15/news/predators-are-free-to-move-about-the-cabin/

     

    What is it with this “she has breasts so of course guys are going to grab them” excuse?  Have our standards of personal safety and civility really descended so far that girl’s and womens’ bodies are public sex toys for anyone who wanders by?  Are boys and men truly that lacking in self control that they just cannot keep their hands to themselves?

     

    The more I think about this the more I am filledwith the geezerish impulse to talk about “back when I was growing up nobody would have excused this kind of outrageous behavior for a second…..”

  • ahunt

    Not to worry, crowepps…

     

    Long story short, back in the 70′s, my outraged parents got my suspension from school rescinded, after my violent and highly effective response to a groping…(Dad was a retired intimidating Colonel, and my Mom was velvet danger)…I was believed, and backed up at home. The perpetrator’s suspension stood.

     

     

     

  • crowepps

    I just absolutely cannot imagine any school official that I’ve ever interacted with telling the parents of a girl who was groped “well, they’re BIG, so how was he supposed to resist?”

  • equalist

    Bullying is not taken seriously enough.  I recently had to pull my four year old from her preschool program because of a similar situation.  Two boys in her class were calling her names, making her cry, pinching, hitting, etc, and it was escalating, leading to bed wetting, a refusal to use the bathroom for days at a time (which always stopped after keeping her home from school for a few days) and eventually led to my daughter complaining of not wanting to go to school due to stomachaches.  When we brought the issue up to her teacher, we were told that my daughter was making things up, or exaggerating because surely she would have seen something.  Yet when we questioned my daughter about it, she stated that she’d often gone to the teachers for protection, only to be told to go away because she was becoming a bother.  When we pulled her out of the program (which was voluntary, and not state required for her to be in) one of the same teachers who had refused to do anything about the bullying called DSS and sent an investigator to our home on suspicion of neglect due to the time she was missing from the program.  Through all of this it seems that not only was my daughter bullied by students in her class, but my family was bullied by the system for complaining  about it and trying to protect her.  She will be going to a different school this year for kindergarden, and while some of the same students from the previous program will be in her classes I’m sure, we are hoping for a better result from the public school system.  If we don’t get what we want out of the system, we’re already working on arrangements to have her homeschooled if we need to pull her out again.  It’s up to the school to protect it’s students from bullying, but when the school fails, it’s up to the parents to protect their children.

  • ahunt

    Exactly…my word/ his word resulted in mutual suspensions…until my articulate Mom, backed by Dad…laid it out.

     

    Today? Excusing the indefensible…?

     

    Yes crowepps…it was different in our day.  I was believed and exonerated at home, and ultimately at school. No one made excuses for the perpetrator!

     

     

  • mechashiva

    Yeah…

     

    Many, many moons ago in a land to the deepest of Souths… a faroff place we call “Alabama,” I was sexually assaulted on the elementary school playground by about seven boys from my grade (I was around 8 years old). We were in plain view of the teachers, too. I didn’t know what to do about it, because all the previous times I’d complained about their verbal bullying I’d gotten the, “Oh, if he’s mean, that just means he likes you,” explanation. I figured nothing would be done about this either, so I didn’t tell anyone. I just kept going to school with these same boys, watching what they started growing into. The creepy thing is that they all ended up being in the “popular crowd.” I don’t know if anyone would peg them for little pre-criminals.

  • ack

    I have the utmost respect for what you did for your child. I don’t want to frighten you, but I would also suggest that an evaluation be completed by a competent child psychologist. You may have already done this, but be thorough. The unwillingness to go to the bathroom is particularly troubling.

     

    Wishing healing to you and your loved ones.

  • ack

    Mech, I’m so sorry they felt entitled to do that. They weren’t, and it was wrong.

     

    Oftentimes, positive leadership is confused with negative leadership. We need to make a concerted effort to show children, adolescents, and adults the importance of being positive active bystanders.

  • ack

    Mech, I’m so sorry they felt entitled to do that. They weren’t, and it was wrong.

     

    Oftentimes, positive leadership is confused with negative leadership. We need to make a concerted effort to show children, adolescents, and adults the importance of being positive active bystanders.

  • crowepps

    Does this school have any sort of state certification or permission to be in business?  If so, I strongly, STRONGLY suggest that you write out exactly what happened in as much detail as you can manage and report these people to the State agency which is in charge of certification or licensure.  Obviously, your daughter is now safe.  The other children, however, are still at risk, and certainly the boys who were DOING the bullying are at great risk.

     

    Doing so may open a huge can of worms, and I understand that you might be reluctant to stick your neck out, but for the sake of the rest of the children, please consider it.  You might be surprised to find they already have other complaints.

     

    Unfortunately, complaints and investigations are NOT publicized and parents do not receive fair warning of substandard programs because it’s ‘bad for business’.

  • prochoiceferret

    I’m glad to see the legal complaint against OPS. The parallels drawn between the school environment and the work environment are apt—once upon a time, work places were something of a wild-West free-for-all (anyone seen North Country?), but then attitudes (and legal statutes) changed, and nowadays, work harassment is a radioactive issue that people tangle with at their peril. I think the same will come to happen with schools—and we’ll eventually look back on horror stories like these the same way we look back on the crude disciplinary methods used in schools up to the later 20th century: as a sordid reminder that our society didn’t always use to be as civilized as it is now.

  • equalist

    Thank you for your concern.  She’s already under the treatment of a psychologist, and since she’s been out of the school we’ve seen massive improvement.  I worry that the next school she goes to for kindergarden will be just as bad, but we’re already preparing for that.

  • equalist

    Apparently it is.  It’s the head start program here in SC.  I’ve been telling everyone I know about what happened to my daughter, and we’re already making arrangements to avoid putting my younger child through the same kind of lacking supervision when she gets to that age.  My older daughter made good improvement to her learning, but at the cost of her emotional well being that we’re not willing to put her younger sister through.  I’ll look into opening that particular can of worms, but for now, she’s been through enough without putting her into the middle of more.

  • equalist

    Too often I think people confuse the bullying of today with the pigtail pulling and light name calling of generations ago.  This is much different, and much more dangerous.  The numbers of children assaulted, committing suicide, and going so far as to kill other children and teachers in retaliation of their suffering are far, far too high.  Currently, the methods for dealing with this is to go after the bullied children after they’ve defended themselves in any way they can, rather than cutting off the problem at the start and stopping bullying before it progresses to the level that children feel that they have to defend themselves rather than being able to trust those in authority to help them.

  • progo35

    This has a lot of meaning for me. I was sexually assaulted several times at school after being relentlessly harassed and the principals told my mom that a) it was my fault because I made the other kids ‘uncomforable’ due to my learning disorder and/or b) it was just ‘boys being boys.’

     

    This needs to be recognized as a form of abuse, because that is what it is.

  • crowepps

    Ran across this today:

    The seventeen-year-old victim, who has cerebral palsy, has the mental capacity of a seven-year-old and is confined to a wheelchair. Because she is unable to speak, no one knows exactly what was happening when another school employee found her alone in a room with Alonso Manuel Gonzalez, with her shirt pulled up and her breasts exposed, but the incident resulted in the aide’s arrest for a “lewd act with dependent adult.”

    In a filing with the Orange County Superior Court, the attorneys claim that the wheelchair-bound girl “chose to encounter the known risk” of being alone with Gonzalez, that she “consented to” him lifting up her shirt, and that her injuries were the result of her having “failed to use due and reasonable care for her own safety and protection.”

    http://rawstory.com/rs/2010/0625/school-district-blames-disabled-student-molestation/

    Oh, and other parents of special ed students had been complaining about this guy for FOUR YEARS!  But of course, according to the school, the real problem was that SHE “failed to use due and reasonable care to protect herself”.  ‘Cause we all know what them wimmin are like, even profoundly retarded and in wheelchairs –