On January 22, 2018, the Public Interest Law Center, in partnership with the Education Law Center, the Juvenile Law Center, and DLA Piper LLP, filed an amicus brief in an appeal to the Superior Court of Pennsylvania. The Superior Court recently transferred the appeal to Commonwealth Court. The case concerns an elementary school student, N.B., who faced increasingly violent racial and sexual harassment in school in part because he did not conform to traditional gender roles.
In 2014, N.B.’s mother Nicole B. filed suit against the School District of Philadelphia, her son’s teacher and her son’s principal in the Philadelphia Court of Common Pleas. The suit claimed that under the Pennsylvania Human Resources Act (PHRA), the state’s anti-discrimination law, the defendants discriminated against N.B. by repeatedly failing to act to prevent persistent and continual harassment. The court granted a motion of nonsuit in the case, accepting the argument that Nicole B.’s claim had passed the statute of limitations and that the PHRA does not recognize a claim of indirect discrimination against a school district that failed to address student-to-student harassment.
In our amicus brief in support of Nicole B.’s appeal, we urge the court to reverse the lower court’s decision. If the Court of Common Pleas’ narrow interpretations of the Commonwealth’s tolling provision and anti-discrimination statute are left to stand, Pennsylvania children will be unable to hold their schools accountable under state law when they fail to intervene to prevent escalating discriminatory racial and sexual harassment.
The practice of minority tolling, or extending the statute of limitations, in cases brought on behalf of minors is important in order to give students meaningful access to the protections of the PHRA. In many other states and in federal cases, courts have held that minority tolling applies to anti-discrimination cases. Additionally, federal courts have also tolled the statute of limitations in cases of sexual abuse given the impact of the offense on the victim’s ability to defend their rights. Given the trauma N.B. suffered as a child, we argued that minority or equitable tolling should apply in his case.
In addition, we argued that a school’s repeated failure to intervene when it knew of the escalating student-to-student discriminatory harassment of a fourth grader is unacceptable, counter to the interests of the Commonwealth, and violates the PHRA. From the early days of the PHRA’s inception, Pennsylvania courts have recognized that its protections extend to indirect discrimination, where “a responsible party has the power to take corrective action” and fails to do so. Courts have also consistently found that PHRA applies to school settings, and that school districts have a responsibility to act to stop pervasive discrimination. The continual harassment of N.B based on his race and perceived non-conformance to sex stereotypes rises to the level of illegal education discrimination.
Finally, we presented studies to the court regarding the importance of these issues. The kind of student-to-student harassment at issue in this case can have devastating consequences on students years after the fact. Students who are bullied are at an increased risk of absenteeism and poor academic performance. Even after they have left high school, people who were bullied are more likely to suffer from anxiety, depression, obesity, and sleep difficulties than their peers who were not bullied. The negative outcomes associated with being a victim of bullying are particularly likely to manifest, and to be more acute, in vulnerable student populations such as students of color and students who do not fit sex stereotypes or are or perceived to be LGBT. Compounding these effects, teachers are less likely to seriously address claims of bullying from LGBT students and children of color, when compared to complaints from their straight or white peers.