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Expert: Schools often prevail in bullying lawsuits

The parents of deceased bullying victim Emilie Grace Xiao Ying Olsen will have to meet a high threshold of evidence to win their lawsuit against the Fairfield City School District, two lawyers familiar with such cases told the Journal-News.

Emilie Olsen, 13, killed herself with a gunshot Dec. 11, 2014, at her home in Fairfield Twp. Her parents, Marc and Cynthia Olsen, state in their lawsuit that the daughter they adopted at 9 months old had become depressed over the ongoing bullying and cyber-harassment she faced from fifth grade at Fairfield Intermediate School through seventh grade at Fairfield Middle School.

The lawsuit lists teachers, counselors and school administrators as defendants, as well as 18 minor students who are not listed by name in court documents.

Konrad Kircher, a Mason-based lawyer who handles civil rights cases, and who also is a former Kings Local School District school board member, said he was not familiar enough with the Olsens’ case to comment on specifics of the lawsuit. But he said in such suits, families face two main obstacles when their case goes to trial.

First, the parents “have to show that the school district had actual notice of a harm to this particular child,” he said.

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Second — and more difficult — the parents “have to prove that the school was deliberately indifferent to the threats of harm.”

The word “deliberately” significantly raises the threshold of evidence that the Olsens must meet, said Kircher and Sara Clark, the director of legal services for the Ohio School Boards Association.

Clark said the U.S. Supreme Court in the late 1990s set standards for such matters that people must demonstrate in order to prevail in lawsuits.

Among them, parents in such cases must show “that the harassment is so severe and pervasive that it deprives the student of access to educational benefits,” Clark said.

An uphill battle

Typically, the deciding factor in such lawsuits is whether the district was deliberately indifferent.

“That is a high standard to meet,” Clark said. “People will look at things like, Do they have policies in place? Do they track the reports of the bullying? Do they investigate the complaints as they came in? Did they take steps that were reasonably calculated to end the bullying and the harassment, or did they just ignore it?”

The standard is high with the aim of protecting taxpayer money. Because government entities are funded by tax dollars, school districts and other government agencies are granted a level of immunity. So, “suing a school is not like suing General Motors,” Kircher said, adding it’s tougher to beat the school district.

School districts nationwide are seeing a rise in lawsuits stemming from bullying incidents that cause physical harm or emotional distress to students. The increase, some experts say, comes from parents having higher expectations that districts will protect their children from other students while at school.

Clark said she believes districts prevail most of the time in suits brought against them.

“I’m aware of more districts that have won than have lost, but there certainly have been cases as well, where it has gone the other way,” she said.

The Olsens’ suit isn’t the first to be brought against a Butler County school district. A lawsuit that Warren and Lisa Baker filed against Hamilton City Schools in 2012, alleging bullying against their elementary-aged son, was dismissed by a federal judge, as the district requested.

Claims of repeated bullying

According to the 82-page lawsuit filed by Emilie Olsen’s parents, school administrators often did nothing after bullying incidents. The lawsuit states that in September of 2014, “on multiple occasions, derogatory and racist messages about Emilie were written on restroom walls, stalls and mirrors of various restrooms located in Fairfield Middle School.”

Although the restrooms were used daily by teachers and students, messages like “Go die Emilie”; “Emilie is a whore”; and “Go kill yourself Emilie” remained in place “for months prior to her death … continuing until after Emilie’s death in December.”

The lawsuit contends that the derogatory and racist messages were shown to an assistant principal in mid-September, but, “it was not until the day following Emilie’s death … that FMS administrators closed the FMS restrooms for a couple days and ‘painted over’ the derogatory messages about Emilie.”

The district has not yet filed its response to the lawsuit, which will tell its side of the story. In the meantime, officials are not commenting on the matter. Here is the written statement the district released about the suit:

“The Fairfield City School District is aware that a lawsuit has been filed against the District and a number of additional defendants by the Olsens. The District will be defending the litigation and will be providing appropriate responses in the course of the litigation. The District has no further comment at this time regarding this pending matter.”

Peter Ney, the Cincinnati-based lawyer representing the Olsens, said the threshold may be high, but he is confident it will be met.

“I can tell you that the complaint, all 82 pages of it, and all how many factual paragraphs of it (520), every fact in that complaint is substantiated by either a witness statement or a document of some sort,” Ney said. “There’s no fluff in that.”

“I and the other attorneys here at our firm working on this file firmly believe that we will have more than enough evidence to meet the burden of proof to establish the city of Fairfield public schools’ responsibility for this tragedy,” Ney added.

The very detailed filing states that “Minor Student 1,” a classmate, “repeatedly bullied and harassed Emilie, both verbally and on various social media sites.”

In one incident, during sixth grade at Fairfield Intermediate, that girl “followed Emilie into the girl’s … restroom located near the library, and handed Emilie a razor and told her to ‘end her life.’”

Students would ridicule Emilie as being “fake country” because she and her friends wore camouflage clothing, cowboy boots and other apparel. Classmates would tell her she couldn’t be “country” because she was Asian or Chinese.

During sixth grade, a fake Instagram account, entitled “Emilie Olsen is Gay,” was created by Minor Student 2, another classmate. In November of 2014, “Minor Student 8” created a Facebook profile that was used to harass Emilie.

Around January of 2014, Emilie was involved in an altercation with Minor Student 2 in the gym, and Emilie was slapped in the face, according to the lawsuit. The teacher who broke up the fight sent all students back to class, but no investigation was conducted by the teacher or investigators, “and no disciplinary action was imposed on anyone on that date.” School officials never informed the parents about the fight, the lawsuit states. Instead, that news came from the parent of another student.

Questions of what should be done

Kircher did not comment on specifics of the Olsen lawsuit, saying he was not familiar enough with the matter to do so. But he said jurors in such lawsuits are cautioned against looking at the matter from the benefit of hindsight.

“In a case like this, the plaintiffs want to look back, with retrospect, and say, ‘you had all these warnings,’” Kircher said. “But the standard that the jury will be asked to apply is, ‘Put yourselves in the shoes of the administrators at the time – not with with retrospect, but at the time.’ What did all this evidence and these statements mean, at that time, in the context of students at this age?”

It’s important to remember, he says, that with students in these grades, “There’s so much banter that goes back and forth, and much of it is harmless. Unfortunately, in a case like this, it can be difficult to sift through all the harmless comments and identify what truly are harmful comments.

“It’s a tragedy what happened to this child,” Kircher said. “Whether it was preventable, only a jury can determine.”

According to the lawsuit, the Olsens contacted the schools “on numerous occasions” to report their daughter was being bullied and physically battered, and their traditionally straight-A student was exhibiting abnormal behavior at home and eventually had bad grades.

Ten days before she took her life, Emilie wrote in a Facebook exchange with a friend: “I hate what I have become… the only people I have are you guys. Everyone else hates me to death. Even if (they’re) adults they hate me. I can’t please anyone with anything I do. Not even my teachers. It’s like (they) think I am some sort of freak. God doesn’t want me alive. I know he doesn’t.”

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