It is troubling that suicide is the third most common cause of death among children and young adults in the 10-24 age range, just behind accidents and homicide. According to the U.S. Centers for Disease Control and Prevention, approximately 5,000 people between the ages of 10 and 24 take their own lives every year. Studies at Yale University have concluded that victims of bullying at school are between 2 to 9 times more likely to consider suicide as opposed to non-victims. ABC News has reported that nearly 30 percent of school students are either bullies or victims of bullying.
Research has shown that a common thread in suicidal individuals – including school bullying victims – is the role of what researchers have termed the destructive “inner voice.” The inner voice is not to be confused with “hearing voices.” Rather, the inner voice is a strong, persistent, and severe self-attacking thought process. The victim comes to truly believe that they are worthless, a burden on others, unloved, and alone. Just as the extremely thirsty person yearns for a drink of water, the suicidal yearn for a “release” from their existence.
Given that children and young adults in the most vulnerable age group spend most of their waking hours at school, the question may arise on behalf of parents and educators alike: what duties do school officials have to detect that a bullied child is at risk for suicide, and can the school be held liable for ignoring the plight of a bullied student who eventually takes his or her life? The answers to these questions are not easy and are presently not clear under Ohio law.
In Ohio, there is a general rule that school districts are “immune” from most civil liability, but there are then multiple exceptions whereby school districts can in fact be held liable. The task in a student bullying suicide case becomes identifying a relevant exception and successfully arguing for its application under the facts.
Ohio law provides that in certain circumstances, a school can be held liable for the “reckless” conduct of its employees. Reckless conduct is conduct even more egregious than mere negligent conduct because to prove recklessness the plaintiff must prove that the school “consciously disregarded a known risk.” Therefore, in a student bullying suicide case the plaintiff would have to prove that the school was aware that the bullying was taking place, was aware that the bullying was affecting the victim to the point that the victim was a potential suicide risk, and then prove that the district consciously disregarded the suicide risk and failed to take any action. In other words, the plaintiff has to prove not only that the school “should have known” of the bullying suicide risk, but must prove that the school actually did know of the risk and then made the conscious choice to discard the information and take no action.
This is clearly a very high standard that most school bullying suicide cases will probably not meet. The standard serves to protect school districts and educators from being held liable for unpredictable tragedy, while at the same time opening the door for school districts to be held liable – and for the family to get justice – when the school district takes an uncaring and almost cruel stance toward the plight on a severely bullied student.
A second means of potential liability for a bullying suicide under Ohio law is Ohio Revised Code Section 2151.421. This section requires that when a school official knows or has reason to suspect that a child has suffered or faces a threat of suffering a physical or mental wound or injury, the school official must report the information or they will be subject to civil liability, including punitive damages. The law actually states:
(A)(1) No [teacher or school official who] knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect, that a child under eighteen years of age… has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child shall fail to immediately report that knowledge or reasonable cause to suspect to the entity or persons specified in this division. ***
(M) Whoever violates division (A) of this section is liable for compensatory and exemplary damages to the child who would have been the subject of the report that was not made. ***
This section of the Revised Code was recently invoked in the case of a Medina, Ohio middle school student who took his own life. According to the Complaint filed in the Medina County Court of Common Pleas against the Medina City Schools, the child suffered “bullying and harassment, both verbal any physical, including but not limited to the following: being kicked in the groin, pushing, shoving, being hit with rocks, verbal abuse on the school bus, and other insults.” The Complaint goes on to allege how the school was aware of these facts, was aware of the suicide risk, failed to act to protect the child, and that the suicide occurred as a result. The case is currently pending and the outcome will not be known for quite some time.
A defense that schools will sometimes try to raise after a student bullying suicide is that although they were aware of a potential suicide risk, they did not want to report it due to concerns over confidentiality and/or privacy. There is really no basis for such a defense, because under the Family Educational and Privacy Rights Act of 1974 (FERPA), an exception to maintaining confidentiality is if a student is believed to be experiencing a suicidal crisis or has expressed suicidal thoughts. In these cases, confidentiality must be breached to protect the student.
The best way for schools to protect bullied students while guarding against legal difficulties is to have a written school policy that is known and followed by all school personnel. This policy should include issues such as confidentiality, suicide prevention methods, and intervention strategies. The school should keep accurate and up to date records about students potentially at risk for suicidal behavior and explicitly indicate any actions that were taken by the school staff.