There are many harmful schoolyard incidents that seem to be on the increase right here in Montana, including Kalispell, Columbia Falls and Whitefish. This leads to vulnerability among the younger students along with escalating risk of injury or harm.
The focus of this article is student-upon-student assault and sexual assault along with the duties of the Kalispell School District under Montana civil law. Strong anti-bullying and anti-hostile student environment policies are important but do not help if not properly enforced in a prioritized common-sense manner. While I have no specific evidence of failure to enforce policies in the Glacier High School bus assault case, one student accused of serious assault has already been returned to school. While possession of tobacco or marijuana merit immediate suspension and expulsion, it appears that allegations of sexual assault and assault do not.
It is my opinion that assault and sexual assault upon another should warrant the suspension, and if proven after investigation, expulsion on a much higher priority basis. If the local Flathead County school districts fail to prioritize their enforcement of harassment policies, then the more serious incidents will result in severe injuries. In this case, physical and permanent emotional harm to the victims of the alleged assault and sexual assault likely occurred on a supervised Glacier High School football team bus trip.
The parents of students, according to the Daily Inter Lake, and other unnamed sources state their opinion that the Glacier High School officials are trying to “make this go away” or “sweep it under the rug.” In my effort to be fair to our hard-working teachers here in Kalispell and the Flathead, I contacted Kalispell School District Superintendent Darlene Schottle, who refused to respond.
Flathead County Attorney Ed Corrigan has filed some criminal charges in the case. Under Montana Law, pending investigations and other criminal investigative information are confidential under the Montana Confidential Criminal Justice Act. Therefore, Corrigan would be limited in any substantive comment he could make until the matter moves to trial. Further charges may be on the way since investigations are ongoing and are confidential until the charge is filed.
Therefore, I will examine how our Montana civil justice system may assist in protecting the most vulnerable of our students through an examination of Montana and federal civil school law. Once again, the focus of this article is student-upon-student harassment and assault.
In most cases involving civil suits against a school district, its employees and agents are provided under our U.S. Constitution with protection from liability under the doctrine of sovereign immunity. This comes from the common law where the state is considered the “king” and a subject may not sue his “king.” States may waive this immunity under the tort claims act and statute.
The Legislature has provided as follows: Every governmental entity is subject for its torts and the torts of its employees, §2-9-102 MCA. There are exceptions for police officers and others. The Montana Legislature decides these issues. As a result of the above statute, tort claims for negligent supervision, violation of policy, negligent infliction of emotional distress and negligence among other claims may be asserted against Glacier High School. The agents and employees would not be personally liable but if a suit was successful, the Kalispell School District would have the duty to defend and pay the damages in the case of any judgment based upon negligence theories.
The seminal case on this subject from the Montana Supreme Court is the case of S.M., et al. v. R.B. an individual, and Missoula School District No. 1., 261 Mont. 552. The facts of this case involved a 4-year-old special education student who suffered sexual assault by the hands of a third-party bathroom aide. The Court ruled that the legal issue involved whether the teacher or other school personnel knew or should have known of the sexual assault.
To apply the facts to this case, one must speculate as to what may be developed in a civil suit through discovery. This process involves investigation, taking statements and depositions. If the facts showed that coaches on the Glacier High School bus knew the other members of the Glacier football team had engaged in hazing and harassment of previously, then it would be reasonable they protect against assault or sexual assault. The Kalispell School District could also be liable for violating its own harassment policy, even if a prior hazing event were less severe.
The Kalispell School District could also be liable for the Glacier bus assaults on the grounds of simple negligence. The standard for negligence is what actions a reasonable person would take under the circumstances to prevent physical or mental injury to children. All of the coaches sat in the front of the bus. If the coaches were aware of hazing or harassment in the past, it would seem unreasonable not to separate the coaches on different areas of the bus for supervision. To leave freshman members of a football team on a bus without a chaperone may be considered negligent, if school employees knew or should have known something inappropriate might happen.
If found liable, then substantial damages for physical and mental injury might be awarded by a jury or judge. The Glacier High bus assaults may also involve federal law under Title IX. Title IX is part of the Civil Rights Act, which requires equal protection and due process. The courts are split on this particular situation, student-upon-student assault. Several courts around the country have held, “a safe school environment includes the absence of sexual harassment and discrimination” (citing Lenz School Security on Student Harassment and Bullying). Under Title IX, a student, through his parent, may make a claim and receive remedial action and damages along with attorney’s fees. Moreover, a complaint to the federal Department of Education could result in a review of the Kalispell School District’s Title IX funding.
As a counter argument, the facts may conclude that there were no prior incidents, nor any reason to believe that such behavior would occur. All of the students may have been well-behaved at all times in front of staff. If no reports were made, then the assaults may not have been foreseeable. This is an issue for a jury to decide. It is unfortunate that our hard-working teachers are taking a lot of heat for the actions of children whom they supervise. Only a thorough proper and neutral investigation will sort this out.
As a result of the Title IX funding issue, there may be a high degree of incentive to just “make this go away” quietly. The silence from Superintendent Darlene Schottle is deafening, in my opinion. All students and staff in the Kalispell, Columbia Falls and Whitefish school districts should be on notice that this behavior on a bus is foreseeable and there must be proper supervision.
This again brings us back to priorities. While tobacco is very bad and should not be allowed, investigations of assault, sexual assault and harassment should take precedence over behavior which does not involve the immediate physical and mental harm of our students. I would also suggest that when assault is alleged, a thorough third-party neutral investigation should take place promptly.
Hopefully through this article, and the collective action of the citizens of Flathead County, such an investigation with its results will be published without delay.
Anderson is a personal injury and school law attorney and a partner at the firm of Anderson & Bliven in Kalispell.