Law on protecting schoolchildren may go to Pa. Supreme Court

William C. Bryant Elementary

A case that could change the law in determining a Pennsylvania school district’s responsibility for protecting students from harassment hit a roadblock, and was expected to be appealed to the state Supreme Court.

The mother of a fourth-grade boy, identified in court records as N.B., alleges her child was bullied and raped by schoolmates in 2011 at William C. Bryant Elementary School in Cobbs Creek, when he was 8 years old.

Now, a second court ruled she cannot sue the School District of Philadelphia because she filed her complaint with the Pennsylvania Human Relations Commission (PHRC) too late. December’s ruling by a three-judge appellate panel of the Commonwealth Court reiterated what a Common Pleas Court judge ruled in 2017, calling her complaint “untimely.”

That means “Pennsylvania school districts have no duty to protect children from discriminatory bullying” under state law if the victim’s parent doesn’t complain on time, according to David Berney, the lawyer for the child’s family.

According to court papers, the mother’s civil complaint accused the school district of “gender and race discrimination under the Pennsylvania Human Relations Act” (PHRA) and she said “both she and N.B. had reported the harassment to N.B.’s teacher and to administrators at Bryant Elementary, who did nothing to prevent or stop the harassing conduct.”

The papers continue, the mother alleged the school district violated the PHRA “which prohibits a public school and its employees from ‘either directly or indirectly’ discriminating against an individual based on gender and race,” the word “indirectly” meaning third-party student-on-student harassment.

But the court papers say according to state law, the “mother was required to file her” PHRC complaint “within 180 days of the last alleged incident of discrimination,” and she didn’t for more than two years, so the trial judge dismissed the mother’s suit.

Then, in November’s appeals testimony, her lawyer, Berney, reminded the panel of judges, “N.B. is legally incapable of filing a (PHRC) complaint because he’s under the age of 18. Only an individual over the age of 18 is entitled to bring a claim and to be sued,” but the majority of judges still ruled against allowing the mother’s suit to move forward.

A lawyer for the school district, Bruce Merenstein, told the panel that no unusual circumstance prevented N.B.’s mother from filing a timely complaint.

Berney disagreed, saying she was taking care of N.B., who’d been hospitalized and placed in a residential program for children.

According to court documents, neither the PHRC “nor Pennsylvania courts have recognized discrimination claims under the PHRA based on student-on-student harassment” so “that argument must be made to the legislature, not the courts.”

Merenstein and school district spokesman Lee Whack declined to comment for this article.

N.B. transferred to Bryant Elementary School in 2011.

In a Jan. 9 news release, Berney stated, “Three classmates immediately targeted him, harassing him because he did not conform to norms about masculinity. … Everyday, the classmates called him names like “fa****,” “gay,” “homo,” “b****,” “pu***,” “d*** eater,” “black n****r,” and “black a**. … They broke his glasses, dumped his books out of his backpack, cornered him in bathrooms, and threatened to kill him.”

The situation culminated on Oct. 25, 2011, with “the three classmates raping the boy in a school bathroom while they screamed, ‘give it to the fag.’”

N.B. told his mother what happened. Then, according to court papers, on Nov. 4, she told the police. The three classmates, who were minors, were arrested. The next day, she withdrew N.B. from the school.

In an appeal to the Pennsylvania Supreme Court, set to be filed this week, Berney will argue that school districts must “take corrective measures when they know a child is being bullied based on a protected characteristic … and that the time period for filing does not start to run until the victim turns 18, like almost all limitations periods involving children.” 

The PHRC’s Philadelphia Regional Office – serving Philadelphia, Bucks, Chester, Delaware and Montgomery counties – can be reached at 215-560-2496.