AURORA | A lawsuit filed in February is alleging that an autistic Eaglecrest student was bullied so severely that the Cherry Creek School District violated his rights under the Claire Davis Act.
As first reported by the Denver Post, the case could test the limits of the relatively new and little-used law, which was implemented primarily to protect students from gun violence at school.
According to a complaint filed by attorney Igor Raykin in Arapahoe County District Court in late February, the plaintiff enrolled at Eaglecrest High School in 2021 after moving from Georgia to Colorado. The plaintiff is not being named because he is a minor.
The boy was diagnosed with Autism Spectrum Disorder as a child, and had an Individualized Education Plan. The complaint alleges that officials knew that there was a “culture of bullying” at the school that particularly targeted students with disabilities, but school officials did nothing to be proactive about ensuring the plaintiff’s safety.
During a video production class that fall, the plaintiff was bullied by a group of other students in the class while the teacher was out of the room, according to the complaint.
“A group of students shoved plaintiff and verbally harassed him,” the complaint said. “The students stated that ‘(plaintiff) was the reason bullies existed.’”
The complaint alleges that the school was aware that one of the students in the class, referred to in the complaint as ‘Student 1,’ “had a history of unprovoked violent behavior towards other students.”
Shortly after the first incident, that student allegedly pushed the plaintiff down the stairs as he was on his way from the video production class to lunch, causing him to fall down almost a full flight of stairs and injure his ankle and leg, the complaint stated.
At the urgent care the following day, the plaintiff learned that he had suffered a displaced fracture in his fibula as a result of the fall. He ultimately required surgery to his ankle and still experiences pain in his ankle and back.
“It is very likely that Plaintiff’s gait and ankle have been permanently altered by the assault,” the complaint stated.
The student who pushed him was criminally charged with second-degree assault, according to the complaint.
The complaint alleges that because of the severity of the bullying and the perpetrator’s prior history, the plaintiff’s rights under the Colorado Claire Davis Act to be protected from violence at school were violated.
Cherry Creek School District officials deny the school or district were negligent in protecting the student, saying schools prioritize anti-bullying programs and procedures.
The Claire Davis School Safety Act is a 2015 state law saying that school districts can be held liable for damages if they are found to have failed to protect students from “reasonably foreseeable” crimes of violence at school. The law is named after the victim of the 2013 Arapahoe High School shooting.
The law defines the crimes of violence as murder, first-degree assault or felony sexual assault. Raykin cited past legal precedents to argue that Student 1’s behavior fell under the definition of first-degree assault because of the severity of the damage he caused to the plaintiff.
“Because this assault and the harm it caused was reasonably foreseeable, the district had a duty to protect Plaintiff from such an assault,” the complaint stated.
Raykin has also filed a similar lawsuit regarding a case in Grand Junction and said he plans to file more. He’s filing the cases in part because besides some avenues under disability law for students with special needs, there are almost no ways to prosecute bullying.
Most students are not seriously physically injured as a result of bullying, but in some cases it can cause serious harm — including spurring students to suicide.
“Our intention is not to bring it as a test case in the sense that we’re not using it as an experiment, they have legitimate claims,” he says of the lawsuits. However, he expects the school districts to attempt to get the Claire Davis Act interpreted in ways that will favor schools.
“We do anticipate a fight,” he said.
Besides his own, Raykin said the only legal case regarding the Claire Davis Act he is aware of is the lawsuit the parents of Kendrick Castillo filed against STEM School Highlands Ranch. Castillo, 18, was killed during a shooting at the school in May 2019 while rushing one of the shooters.
The Castillos recently turned down a settlement offer awarding them damages under the Claire Davis Act, the Post reported, saying they want the evidence from the discovery process to be made public to expose failures in school safety.
A representative for Cherry Creek said that Raykin’s lawsuit did not not fit the legal requirement for a waiver of immunity under the Claire Davis Act.
“Cherry Creek School District does not tolerate bullying,” spokesperson Lauren Snell said in an email. “Our staff takes any report of bullying very seriously and we investigate it to the fullest. Everyone has the right to feel safe and respected in our schools.”
Raykin described the district’s claim as “nonsensical.”
“This is exactly the kind of case that the Claire Davis Act was passed for in the first place,” he said.
Ultimately, Raykin said that he would prefer for there to be more policies on the books requiring schools to be proactive about bullying before things escalate to the kind of behavior that his client allegedly suffered.
“I’m much more interested in having laws that would have prevented that from happening than suing schools once it does happen,” he said.
We took my autistic grandson out of the elementary school he attended in the Cherry Creek school district because of bullying. He hated school so much. He now lives with his mom in Fort Collins and has not had any bullying that we are aware of. He is thriving and growing in maturity by leaps and bounds! He loves school! He hardly has any screaming meltdowns now. These meltdowns used to happen at least once a day. Now, maybe once a month or even one every other month. It’s amazing how one bully can ruin a child’s life. But living free from bullying, a child can thrive and enjoy life. I really hope this teen gets some justice because of this law. Every child should have the legal right to attend school without the fear of being bullied every or any day of their lives.
Why can’t we require parents to be in the schools one day a week paid for by their employers that would put a whole lot of extra monitoring going on in the schools
Kids who bully should be permanently barred from school. They learn to bully at home. Let their parents home school the little b…yards.
“Cherry Creek School District does not tolerate bullying”
That’s so false it’s laughable