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Free Speech

Court Rejects Lawsuit Against Teacher's Aide Who Criticized Student Who Had Committed Suicide

The student's mother alleged that he had been bullied and the school district had done nothing to protect him; the teacher's aide responded in an online public discussion, saying (among other things) that the student had been doing the bullying; the parents sued.


From Spring v. Allegany-Limestone Central School Dist., decided Tuesday by Judge William Skretny (W.D.N.Y.):

Gregory Spring was the son of Plaintiffs Keri and Eugene Spring, and the brother of Plaintiff Julianne Spring. Defendant Diane Lowry was a teacher's aide at the Allegany-Limestone Central School District, where Gregory was a student. Lowry frequently worked in the same classroom as Gregory while he was in middle school but had no contact with him after he completed eighth grade.

Lowry testified that, when Gregory was in eighth grade, she saw him running down the hallways with a group of boys, pushing people over. She also testified that one day she asked the group of boys, including Gregory, not to crowd her and the physically-limited student with whom she was working and Gregory responded, "you need to shut the hell up and mind your own business." Lowry left discipline for this incident to the teacher in charge. She testified that, a few days later, Gregory apologized to her for that incident. Lowry also testified that she had seen Gregory bully a student called Z.C. until he cried but she did not provide a date or context for this incident.

School disciplinary records indicate that Gregory was disciplined on November 12, 2010, and January 19, 2011, for shoving other students in the hallway. What appears to be a complete record of eight disciplinary incidents in Gregory's record does not contain a record of Gregory either bullying another student or telling Lowry to shut up.

Gregory committed suicide on June 17, 2013. In the aftermath of his suicide, an anonymous poster wrote the following on the online message board of the funeral home: "Ha ha. He died. I hope he's in hell." A Channel 4 news article covered his suicide. The online comments section for this article contains multiple posts about his suicide and about his mother Keri's allegations that Gregory committed suicide because he had been bullied and that the school district had done nothing to protect him from bullying. {It is likely that this discussion occurred within several days of Gregory's funeral. In messages to a parent in the District, Lowry asked, "what parent would contact a news station the day after your son's funeral?" This suggests that the Channel 4 coverage occurred in the days after the funeral and this discussion ensued shortly after.}

Lowry engaged in this online conversation. In her first post, she wrote,

Oh how quick people are to judge and to forget that there are always two sides to every story. As an employee of ALCS District, I know first hand how difficult it is for schools to manage students that are NOT properly disciplined at home. This young man did not commit suicide because he was bullied at school. I read the messages that he posted to his FB (Facebook) page (which has been surprisingly removed) and there was NOTHING said about bullying. There were, however, NUMEROUS posts about his girlfriend and his despondency over their breakup. Some of his posts sent a chill up my spine and I remember feeling saddened that no one saw these warning signs. In today's world, our children, and young adults, use technology to say things that should never be said, post obscene pictures and videos, harass, demean, vent, and yes, display warning signs of their desperate need for help. It's totally unfair and ridiculous to place sole responsibility for horrific events such as this, against any school district. Parents raising children in a technology driven world like we live in today need to set strict guidelines with their children's phones and computers. I am shocked at how many parents bring in copies of their children's FB pages filled with hateful and obscene comments and expect the school to do something about it. When did it become the school's responsibility to monitor what a student is posting and/or texting to others while at home? ALCS has amazing teachers and staff – I know because I work with them. I am telling you, there is another side to this story. As an aide in the ALCS District, I was in class with Greg for three years. I could, but choose not to, share what I witnessed (and DID NOT witness) while in classes and walking the hallways going from class to class. It saddens me that Greg chose to end his life in this manner, but what saddens me even more is his mother's desire to place blame solely upon the school district. How did Greg's FB posts go unnoticed? Friends, family members, teachers, employers, the government – all have an influence on our lives and can give us excuses to "blame" our circumstances on other people. We can not change the past, however, and assigning blame will do nothing to help us find solutions. Wouldn't it be better if we worked together to try and understand what happened? Are we really interested in improving our future or are we more concerned about who's at fault?

In a subsequent post, after other participants responded negatively to her initial comment, Lowry wrote,

As an employee of the district, and someone who attended many of Greg's classes, I never once witnessed him being the victim of bullying…EVER! Were you there? No, you were not. So I believe I have every right to speak what I witnessed first hand. I will tell you the very same thing I told another person on this public forum. Let me just say this, I was told by a student, "You need to shut up and mind your own business" when I confronted HIM about HIS repeated and relentless bullying of another student. That is what I witnessed. Maybe you would be well served to adhere to your own advice about remaining silent!

In response to participants' criticism of her handling of the incident she described, Lowry wrote,

So why do you assume that I "scolded" Greg? You insult your own intelligence by making blind assertions about how the incident was handled. I did not have to "notify" the classroom teacher because he heard the comment. And yes, it was reported to the administration by the teacher. And to question my credentials as an aide is insulting! And what I witnessed was NOT backlash. It was the relentless targeting, and verbal assault upon another student which eventually resulted in the student having to be moved out of all the classes that he and Greg shared. A wise person would not make assumptions without first knowing all the facts!

Another commenter asked, "How do you explain, 'Ha ha. He died. I hope he is in hell' then?" Lowry replied, "I cannot explain who would write such a horrific statement! Obviously someone without much of a conscience."

The comments page included, in addition to Lowry's contributions, participants sharing their children's experiences with bullying in the District, expressing anger at the District's handling of bullying, expressing skepticism of the District's claims of investigating bullying, discussing the national problem of bullying in schools, and engaging in a side conversation about homeschooling….

The parties dispute the truth of Lowry's statements that Gregory told Lowry to "shut the hell up and mind your own business" in response to her confronting him about bullying. They also dispute whether Lowry, in fact, "witnessed another student cry because of Gregory's treatment of that student."

Plaintiffs sued, claiming "that Lowry both negligently and intentionally caused them emotional distress when she posted her comments about Gregory in this discussion forum," but the court disagreed:

A cause of action to recover damages for negligent infliction of emotional distress must "be premised upon a breach of a duty owed directly to the plaintiff which either unreasonably endangers a plaintiff's physical safety or causes the plaintiff to fear for his or her own safety." Here, Plaintiffs do not allege that Lowry owed them a duty of care, nor that Lowry's conduct endangered their physical safety or caused them to fear for their own safety….

A cause of action for intentional infliction of emotional distress in New York has four elements: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." "'Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" …

A reasonable jury could not find Lowry's comments "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.'"

To begin, Lowry did not initiate the comments concerning Gregory. Rather, it appears that Keri raised the issue of bullying in the Channel 4 news story, putting the question of whether Gregory was bullied squarely up for public debate. {Lowry commented in her text messages to the supportive parent, "What parent would contact a news station the day after your son's funeral?" This suggests that Keri initiated the news coverage of Gregory's suicide and her allegations of bullying.} Lowry contributed—perhaps insensitively—to a topic that was already being discussed. Further, she posted on the Channel 4 news site, directing her comments to fellow participants and the public at large, not directly to Plaintiffs. Although it may have been foreseeable that Plaintiffs might read the comments, Lowry did not address her comments directly toward them and her thoughts were largely focused on the more general debate about the handling of bullying in schools.

Nor did Lowry did engage in the kind of "deliberate and malicious campaign of harassment or intimidation" that can make conduct outrageous. Rather, she made three discrete posts, only portions of which addressed Gregory's behavior. Her conduct is thus distinguishable from that in which courts find outrageousness due to a campaign of harassment. {Lowry commented in her text messages to the supportive parent, "What parent would contact a news station the day after your son's funeral?" This suggests that Keri initiated the news coverage of Gregory's suicide and her allegations of bullying.} Finally, calling a child a bully, as part of a larger online discussion of bullying, is simply not something that a jury could reasonably consider "atrocious" or "utterly intolerable in a civilized society."

It is true that Lowry's comments came at a time when Plaintiffs were freshly grieving the loss of their son and brother. But given the high threshold for outrageous conduct in New York, a reasonable jury could not find that her comments were sufficiently extreme and outrageous under New York law.

Because Lowry is entitled to summary judgment on this basis, this Court will not address the parties' other arguments regarding Lowry's state of mind in making the comments, whether Lowry's comments are protected by the First Amendment, and whether Plaintiffs suffered the requisite severe emotional distress….