A Philly boy identified in court papers as “N.B.” will never be the same after being bullied, harassed, and sexually assaulted by classmates at age 8 while attending a Philadelphia public elementary school, his lawyers say.
But he is not allowed to sue the School District of Philadelphia for allegedly ignoring his complaints about bullying, two Pennsylvania courts have ruled, in part because his mother did not file her complaint within six months of the sexual assault.
“Sometimes victims of bullying and sex harassment and rape don’t even report it to their parents within 6 months,” said attorney David Berney of Berney & Sang, who is representing the family of the 4th grader on appeal. “The parent didn’t even understand that she had a right to file under the Pennsylvania Human Rights Act until she came to us, probably three years later. The parent had other things on her mind.”
Now Berney’s firm is asking the state Supreme Court to hear the case, twice thrown out by lower courts over procedural issues including the a six-month time limit on complaints filed under the Pennsylvania Human Relations Act (PHRA).
Attorneys for the School District of Philadelphia from the firm of Schnader Harrison Segal & Lewis claimed in papers to the Supreme Court that the District can’t be held responsible for the alleged bullying and rape in 2011 at Bryant Elementary School in West Philly “on the basis of well- established law and the plain language of the relevant statutes.”
But Berney believes the lower courts misinterpreted the Human Relations Act as imposing a six-month time limit on minors, and wants the Supreme Court to order a new trial for N.B.
The suit has drawn support from other child and education advocacy groups, including the Education Law Center (ELC), in part because it relates to the legal question of School Districts in the state can be held responsible under the PHRA for student-on-student bullying. Pennsylvania courts have left “marginalized children without access to the protections of PHRA when their school fails to keep them safe,” ELC wrote in a brief supporting the D.B.’s lawsuit. “Pennsylvania’s children will be unable to hold their schools accountable under state law for willfully turning a blind eye to their torment.” (In 2018, a bullied Northeast Philly girl, also represented by Berney & Sang, won a $500,000 verdict from the School District under the PHRA for student-on-student bullying, the first such verdict in the state, but it remains an open question if the precedent will be upheld.)
The victim’s nightmare of bullying and eventual assault at Bryant Elementary School in 2011 began on his first day at Bryant, Berney said, and teachers and principals allegedly ignored the victims’ complaints.
The victim, who had transferred from a private religious school, was subjected to racially charged harassment and targeted “because he did not conform to gender stereotypes,” his lawyers say.
Berney said D.B. was called homophobic and racist slurs, physically attacked, and forced to watch pornographic videos by a trio of bullies, among numerous other disturbing incidents. It culminated in the three bullies, boys aged 10-11, dragging him into a bathroom and sexually assaulting him, then threatening his life if he told anyone. Weeks later D.B. told his mother and she promptly contacted police, leading to arrests and juvenile charges against the three boys. (Due to confidentiality in juvenile cases, the outcome of the charges is unknown).
Berney wrote in court papers that Bryant Elementary staff did not actively take “corrective measures” to stop the bullying, and that sexual abuse and bullying was rampant at the school in 2011. Other staff testified of violence, insults, gropings and sexual harassment against female students and teachers, and even a teacher being urinated on at the school.
As for N.B., he was reportedly institutionalized after the incident, has attempted suicide multiple times, spent months in group homes, been diagnosed with PTSD and anxiety disorder, requires special education services, and “has also tried to act out what he experienced on his younger brother,” his lawyers stated.
But none of that matters, the courts found, because of the six-month limit within the Pennsylvania Human Rights Act.
“Plaintiff argues that, because bullying and harassment in schools are serious matters, students must be given until 180 days after they turn eighteen to file complaints with the PHRC [Pennsylvania Human Rights Commission],” lawyers for the School District responded. “Respondents do not dispute that bullying and harassment are serious matters. Yet, as this Court repeatedly has noted, Pennsylvania courts may not alter the terms of statutes to advance policy goals, no matter how worthy; rather, it is the legislature’s role to establish policy.”
Berney said he wants the court to expand the time-limits for filing complaints, allow children victimized based on protected characteristics to file lawsuits under the states Human Rights Act, and to allow N.B. to sue for damages based on what he experienced.
“School bullying damages our children in ways that can’t easily be undone,” Berney said. “In enacting the PHRA, the state legislature intended to protect children from discriminatory bullying—our appeal will give the Pennsylvania Supreme Court the opportunity to reaffirm that principle.”
The School District of Philadelphia declined to comment on the pending litigation, but a spokesman said they “take each and every report of bullying very seriously. Bullying has been plaguing communities nationwide and we are committed to confronting it head on.”
The School District urged students in need of help to call its bullying and harassment hotline at 215-400-SAFE (7233).