Below is the text of the Legal Intelligencer’s recent article Judge Defends Decision to Slam School District with $500K Verdict over Bullying. The article spotlights Berney & Sang’s landmark school bullying and harassment case, Wible v. Philadelphia.
A Pennsylvania judge is defending his decision to have the School District of Philadelphia pay more than $500,000 for failing to stop a student from being severely bullied.
Philadelphia Court of Common Pleas Judge Gene Cohen last week outlined his reasoning to the Commonwealth Court for a ruling he made in May, which held that the School District of Philadelphia was liable for failing to stop one of its students from being severely bullied, and needed to pay $500,000 in damages to the student, as well as $578,000 in attorney and expert fees.
The school district had appealed the ruling to the Commonwealth Court, but Cohen rejected the district’s arguments and asked the appellate court to affirm his decision.
As part of its appeal, the school district had contended that the school was immune from suit for claims arising out of the Pennsylvania Human Relations Act, which makes it unlawful for public entities to deny “accommodations or privileges” based on a person’s sex.
According to Cohen, appellate courts in Pennsylvania have not yet determined whether the PHRA applies to students who have been bullied by other students, but Cohen said that the plain language of the text and the purpose of the law indicate that courts should allow these types of claims.
“Plaintiff’s time in the school district was a gauntlet of sexual harassment and violence that would test the mettle of the strongest and most resilient youth. This harassment was endured for years until it became unbearable and plaintiff was forced to withdraw from the school district,” Cohen said. “In this way plaintiff was literally denied the use of a public accommodation on the basis of her sex. The PHRA forbids this.”
Cohen further noted that his underlying ruling had not found that the school was vicariously responsible for the student’s conduct, but rather it showed an indifference to the bullying and harassment.
“The school district is not generally liable for all conduct of its students,” Cohen said. “But it is liable, in its role as proprietor of a public accommodation, if it is deliberately indifferent to harassment and violence that has occurred and inevitably will continue to occur, and this harassment is so severe that it makes it impossible for one of the students entrusted to the school district’s care to enter the building.”
In the nine-page findings of facts and conclusions of law that Cohen issued in May following three weeks of trial, Cohen said that in the fall of 2003, the plaintiff, Amanda Wible, began attending Robert B. Pollock Elementary School in northeast Philadelphia, and her classmates soon began to tease, taunt and harass her because of her gender presentation, which Cohen described as not conforming to “societal expectations for girls in terms of appearance and dress.”
She was physically assaulted by a larger male student, who also teased her with sexualized taunts, and Wible’s mother notified the school of the bullying, Cohen said. Although the student was suspended, “effective efforts by Pollock to remedy this situation were non-existent,” Cohen said.
Wible’s mother, Cohen said, had her transferred to Alternative Middle Years at James Martin School in the Port Richmond section of the city. However, Wible continued to be targeted. Wible’s mother again reported the harassment to school officials, but the bullying continued.
Cohen said that, while in seventh grade in 2010, Wible was attacked by as many as 10 students, and she began to have panic attacks after that assault.
Wible then transferred midyear to C.C.A. Baldi Middle School in the Bustleton section. Cohen noted that, when she transferred, Wible’s mother met with the principal and vice principal at Baldi and her mother sent letters to Wible’s teachers explaining the bullying. However, she continued to be harassed based on her gender presentation.
Cohen said Wible developed a severe form of post-traumatic stress disorder, as well as depression and anxiety. According to Cohen, she also engaged in self-harm, had suicidal thoughts and panic attacks. Cohen also noted that she developed a condition called amplified musculoskeletal pain syndrome as a result of the bullying. Regarding her treatment, Cohen said, Wible needs specialized and intensive psychological treatment and behavioral therapy.
David Berney of Berney & Sang, who represented Wible, said Cohen issued a “strong” opinion.
“I know both Amanda and her mother feel fully vindicated by the decision, and we are grateful for what we thought was a judge who listened to everyone, carefully considered both sides and weighed the evidence,” Berney said.
Phinorice Boldin of Fineman Krekstein & Harris represented the Philadelphia School District. A spokesman for the school district said the district had no comment.