November 28, 2016
In the last few years, we have seen a mounting increase in parent-lawsuits seeking to impose liability against school districts related to student bullying. Typically relying on the bullying provisions that were added to the School Code over the last 10 years, most of those lawsuits included a tort claim that school officials responded to the bullying with willful and wanton disregard. Thanks to the immunity provided in the Tort Immunity Act for the discretionary actions of school administrators, most school districts have found success in defending these tort claims on a motion (or very low settlement) prior to reaching trial. Under that immunity, courts have largely held that so long as the District can demonstrate that it did not recklessly disregard the bullying, and so long as the District implemented some response to the situation within the framework of the District’s bullying policies and procedures, the case should be dismissed.
As bullying cases have exceedingly been dismissed on the basis of that immunity, parents’ attorneys have adjusted their strategy in choosing which legal claims to file against school districts. That strategy was most recently on display in Mulvey v. Carl Sandburg High School. In Mulvey, parents sought to hold the school district liable for physical and emotional injuries their daughters allegedly sustained as a result of being bullied by teammates on the basketball team.
In addition to pleading the typical willful/wanton tort claim found in most bullying lawsuits, the Mulveys also asserted a breach of contract claim. Undoubtedly, the contract claim was an attempt to overcome the application of tort immunity, which is not a defense to a contract claim. The Mulveys argued that the school district’s Parent-Student Handbook and board policy – which collectively prohibit bullying and set forth procedures for investigating bullying claims and disciplining those who commit bullying – created a binding and enforceable contract between the students and the school district.
The Appellate Court didn’t agree with the parents’ arguments, holding that the handbook and policy didn’t satisfy at least two of the essential elements of a viable contract claim: a promise that was broken by the defendant and consideration from the plaintiff as part of a bargained-for-exchange. First, the court determined that the policy and handbook lacked a promise by the school district to prevent or eliminate bullying. Second, the court denied the parents’ claim that their daughters’ attendance at school was valid consideration, instead holding that attendance was required by law. As a result, the court dismissed the contract claim. The willful and wanton claim was also dismissed, with the court finding that the tort immunity for discretionary actions applied because the bullying policy necessarily required the exercise of discretion by school officials.
The Mulvey case underscores that although school officials must meet the demands of the School Code’s anti-bullying provisions by having a well-crafted bullying policy in place and being responsive to bullying claims, so long as school leaders provide a reasonable response to bullying incidents within the framework of the policy, they will generally be free from liability. To ensure that the District’s response to the bullying claim falls within the tort immunity for discretionary actions, we remind you that documentation of the administration’s response to the bullying should be kept as part of the student record.