Attorneys for the Bangor Area School District say an anti-bullying lawsuit filed on behalf of a student who alleges pervasive anti-LGBT bullying lacks merit.
“There’s no basis that we can see that this young lady lost educational opportunities because of her sex,” said John E. Freund 3d, an attorney for the district. “Therefore, we’re asking that the case be dismissed as meritless.”
The alleged victim is identified as “S.B.” in court papers.
Her parents, Tammy and Russell Bittenbender, filed suit against the district in December, claiming anti-LGBT bullying caused S.B. to transfer to a school district in New Jersey.
A jury trial has been requested.
The Bittenbenders say S.B. was discriminated against on account of her sex, which violates Title IX — a federal law prohibiting sex discrimination in schools receiving federal funds.
The teen, who identifies as bisexual, is doing much better at her new school, said Jason D. Schiffer, an attorney for the Bittenbenders.
On Feb. 5, Freund filed court papers asking a federal judge to dismiss the case.
Freund said S.B. may have been subjected to some general physical or verbal abuse, but that occasional references to S.B. being a “lesbian” don’t amount to sex discrimination.
“We have some young girls who may have been insensitive in the language they used,” Freund told PGN. “But the allegations in the complaint are insufficient to establish a cause of action for peer-to-peer harassment under Title IX.”
Schiffer said S.B. experienced more than occasional name-calling.
“The ‘lesbian’ comments were a regular occurrence for years,” Schiffer told PGN. “These were not sporadic comments. It truly was pervasive throughout the school day. The comments were accompanied by physical abuse. S.B. was pushed down a set of steps, she was punched, she was kicked. Her personal belongings were placed in a garbage can. This went well beyond name-calling. She was physically abused because of a perception that she didn’t conform.”
Moreover, Schiffer said, S.B.’s “tormentors” urged her to commit suicide, and told other students to avoid having contact with her because she had “diseases” associated with being a lesbian.
Schiffer said the bullying wouldn’t have occurred if S.B. were a male.
“But for her gender, S.B. wouldn’t have been bullied. Her tormentors perceived her to be attracted to females, and in their minds, only males are supposed to be attracted to females. That’s why we claim it’s discrimination based on sex.”
But Freund said there’s no evidence that students thought S.B. didn’t conform to gender stereotypes.
“There’s no indication there’s anything about this young lady’s actions or appearance that would support a gender non-conformance claim,” he said.
Freund said he saw a photograph of S.B. and described her as “beautiful.”
There’s also no indication that the alleged bullies were attracted to S.B. sexually, Freund said.
“As far as we know, this young lady was an outstanding student and a leader on her athletic teams and in her peer group,” he added.
Schiffer said the Bittenbenders are suing the district because officials failed to take appropriate remedial measures after the bullying was brought to their attention.
“The school district needs to take steps that are reasonably calculated to end the discrimination, and the administrators failed to do that,” he said. “As a result, the school district violated Title IX.”
Freund also disputed the Bittenbenders’ claim that S.B. had to transfer to a different school district to ensure her safety.
“The school district doesn’t believe S.B.’s withdrawal from school was motivated by any of the things alleged in the complaint,” he said.
But Schiffer refuted Freund’s statement.
“The sole reason the Bittenbenders left Bangor and moved to New Jersey was to find a safe haven for their daughter because there are stronger laws in New Jersey to protect against the type of bullying she endured,” he said.
Schiffer expressed optimism that his clients will prevail.
“We feel very strongly about the case,” he concluded. “We’re pushing the edge of the envelope for advocating for civil rights. We realize there are no guarantees in life. But we think the climate and atmosphere is favorable for us.”
As of presstime, the school district’s request for the complaint’s dismissal remained pending with U.S. District Judge Lawrence F. Stengel.