Private High School Not Liable for Cyberbullying–DC v. Harvard-Westlake

By Eric Goldman

D.C. v. Harvard-Westlake School, 2009 WL 2500343 (Cal. App. Ct. Aug. 14, 2009)

Harvard-Westlake is a highly-regarded private school in the Los Angeles basin with an impressive alumni roster and a lot of very affluent parents. I’ve known a few alums and, based on their descriptions, they seemed to have a remarkable and resource-rich experience far beyond what I had in public school.

DC was a Harvard-Westlake high school student and an aspiring entertainer. He ran a self-promotional website that contained a guestbook. Unfortunately, some of DC’s peers were not fans of his, and they littered his guestbook with hateful homophobic “death threats.” (I put that in quotes because they were ultimately deemed not to be serious threats.) It really breaks my heart to see coordinated venomous attacks like this among high schoolers. I understand that experimentation and limits-testing is part of the teenage experience, but IMO the hostility of these comments crossed the line. The death threats were so disconcerting that DC’s parents contacted the local police, who brought in the FBI. Eventually the authorities advised DC to change schools. DC and his family followed this advice, requiring his entire family to relocate. The police ultimately decided not to prosecute the attacking students; according to one news report I saw, that decision was based on a conclusion that the attackers never actually intended to physically harm DC.

DC and his parents initially sued only Harvard-Westlake for a long list of claims, largely predicated on the school’s allegedly derelict response to the students’ attacks on DC. Among other things, the attacking students used Harvard-Westlake’s computer network as part of their attacks, and the school did not suspend or expel any of the attacking students (although news reports indicate that the students were disciplined in some unspecified manner). The plaintiffs also complained that the student newspaper (supervised by a faculty member) published numerous stories about these incidents, including disclosing DC’s new residence and school and repeating claims of his alleged homosexuality.

Subsequently, DC and his family also sued the attacking students and their parents. Needless to say, this has spawned a lengthy and expensive legal battle. The initial complaint was filed in 2005 and the proceedings are still going strong.

With respect to Harvard-Westlake as a defendant, DC’s parents signed an enrollment contract that contained an arbitration clause and a fee-shifting provision. In 2005, the trial court ordered the Harvard-Westlake dispute to arbitration and stayed the actions against the attacking students and their parents until the arbitration was completed.

In Fall 2006, the arbitrator issued her first substantive ruling–the one that initially triggered my alert. In that ruling, the arbitrator dismissed several claims, including a state “hate crime” civil claim (the statute expressly protects sexual orientation) against the school on 47 USC 230 grounds. The arbitrator’s ruling means that even if the school’s computer network was used in the attack, the school isn’t liable for that. Given its age, this is old news, and it isn’t precedential because the ruling was made in arbitration. Nevertheless, in light of the various ongoing concerns about cyberbullying, I think this remains an interesting data point.

Subsequently in 2007, the arbitrator dismissed the remaining claims against the school and, per the fee-shifting agreement, awarded fees and costs to the school of over a half-million dollars. Last week’s ruling in this case deals with (among other things) the plaintiffs’ effort to avoid this award of fees and costs. They get a little relief from this court. To avoid discouraging plaintiffs with the specter of possible liability for defense costs, California’s hate crime statute has its own “one-way” fee-shifting provision only for successful plaintiffs. Accordingly, the court concludes that public policy trumps the parties’ enrollment contract and prohibits the plaintiffs from having to pay arbitration costs or defense attorneys’ fees related to the hate crimes claim despite the contract.

The opinion isn’t entirely clear about what happens next, but I believe the trial court ought to sever out any of the arbitration costs and defense legal fees tied to the defense of the state hate crimes claim. However, because the plaintiffs raised a long list of other claims in their lawsuit, I think a lot of defense legal fees still should be awardable under the fee-shifting provision in the enrollment contract. If so, the plaintiffs eventually will have a write a check of hundreds of thousands of dollars to the school.

I’ve previously blogged on other lawsuits involving high schoolers being mean to each other. The Sandler v. Calcagni and Finkel cases stands out most in my mind. These lawsuits seem to have some commonalities–they can be long-lasting all-out litigation wars that cost hundreds of thousands of dollars of legal fees. Based on my limited observations, my working hypothesis is that lawsuits over bad high schooler-on-high schooler behavior have no real chance of improving the plaintiff’s life, regardless of the court’s final disposition. Testing this hypothesis might be an interesting area to study. I wonder if a method like restorative justice might yield more satisfying results for plaintiffs than decade-long lawsuits.

I’m also wondering if Harvard-Westlake could have and should have done more to protect DC. I don’t think the school was an appropriate defendant, but at the same time, there was clearly a crisis in its community that was detrimentally affecting the ability of one of its students to enjoy life. I’d welcome your thoughts about how schools can appropriately intervene in student-on-student cyberbullying attacks when they occur.

A final note: the court opinion does not mention either DC’s identity or his parents’ identity, so I’ve made the decision that it’s not important for my blog post to identify the plaintiffs by name either. However, it was trivially easy to identify the plaintiffs. For example, you can see a list of most litigants from the lower court record in Case Number: BC332406 at the LA Superior Court website.