Should Colorado schools be held responsible if they fail to stop bullies?

Michael and Desiree Davis, the parents of 17-year-old Arapahoe High School shooting victim Claire Davis, at left, hold up candles with thousands of others at the celebration of life memorial service held for their daughter, who was killed by a classmate, at the National Western Stock Show Event Center in Denver on Jan. 1, 2014. The Claire Davis Act, a law allows parents to sue if a school fails to provide “reasonable care” to protect students and employees from “reasonably foreseeable” violence, is the basis for two cases currently winding their way through the courts in Colorado. (Photo by Helen H. Richardson/The Denver Post)

Two lawsuits will test Claire Davis Act’s reach

This article was reprinted with permission from the Denver Post and originally ran on March 26, 2023

Amber Harford’s son was in gym class at his Grand Junction middle school when a group of students attacked him. One of his classmates struck the 13-year-old on the back of his head so hard he fell to the ground and vomited.

Less than a month later, another student hit Harford’s son more than 27 times in Orchard Mesa Middle School’s hallway, causing his head to bleed and swell.

His injuries were so severe that the teen — who is not being identified because he is a minor — lost the ability to use his mouth and became unable to talk in the weeks after the attack. He was diagnosed with Bell’s palsy, which causes paralysis on one side of the face, Harford alleged in a lawsuit filed against Mesa County Valley School District 51 in October.

The assaults, which occurred in the fall of 2020, are among a string of bullying incidents the boy faced at school dating back to 2018 that employees failed to stop, the lawsuit alleges.

Harford is suing the school district in one of at least two lawsuits that aim to expand the reach of Colorado’s Claire Davis School Safety Act — enacted in the wake of a school shooting — so that the law can be used to hold districts responsible for failing to intervene when students are bullied.


The second lawsuit was filed by the parents of an Eaglecrest High School student against the Cherry Creek School District in Arapahoe County District Court in February after a teen allegedly pushed a classmate down a flight of stairs, causing the latter’s leg to fracture.

“We don’t think these schools are taking these incidents seriously,” said Igor Raykin, an attorney who specializes in education law and is representing families in both lawsuits.

The Cherry Creek School District pushed back on the inclusion of the Claire Davis Act in the Eaglecrest High lawsuit, saying, in a statement, the case doesn’t fit the legal requirements. A spokeswoman for Mesa County Valley School District 51 declined to comment on the allegations in Harford’s lawsuit.

Harford also has filed a separate lawsuit, under the federal Individuals with Disabilities Education Act, regarding the alleged bullying her son faced at Orchard Mesa. That case recently went to trial at the Colorado Office of Administrative Court and is pending a ruling from a judge, Raykin said.

“I had police reports; I reported to the district, teachers, principals,” Harford said in an interview. “Other parents had also called in because they would see them tormenting my son.

“I had taken all the steps and used the resources in my town on preventing something from happening and he was severely beaten up,” she added.


An “uncertain pathway” to hold schools responsible

The Claire Davis School Safety Act is a little-used state law adopted in 2015, two years after a student was killed by a classmate in a shooting at Arapahoe High School. The law allows parents to sue if a school fails to provide “reasonable care” to protect students and employees from “reasonably foreseeable” violence.

Few lawsuits have been filed under the act since it passed. The first known — and most high-profile — case has been the lawsuit filed by the parents of Kendrick Castillo against STEM School Highlands Ranch following the 2019 school shooting.

Castillo, 18, was killed after rushing one of the shooters. His parents sued in 2021 under the Claire Davis Act, seeking to uncover more information about possible warnings school officials received before the shooting. They recently refused to accept a settlement in the lawsuit and are pushing for the information they have learned through the discovery process to be made public.

Attorneys who focus on education law have said the Claire Davis Act is clear that schools can be held liable when there is murder, first-degree assault or sexual assault on campus, but the law is less clear when it comes to other situations in which a student injures a peer.

Raykin is seeking to use the law to hold schools accountable for bullying — something he said has been difficult to do because Colorado doesn’t have any other legal framework that would hold them liable.

The cases in Grand Junction and Arapahoe County are the first in a series of lawsuits Raykin said he plans to file under the Claire Davis Act related to bullying. At least three others are in the works, he said.

Both lawsuits alleged there was a pattern of bullying against students with disabilities and that school officials knew about it.

“For the longest time, there was virtually no way to hold schools accountable,” Raykin said. “This provides at least some kind of pathway, though it is an uncertain pathway.”

There is no federal law that specifically applies to bullying, according to the U.S. Department of Health and Human Services’ website about bullying prevention.

Colorado recognized the need for a bullying prevention policy in 2000 as part of the state’s response to the Columbine High School shooting a year earlier. State law now requires local school boards to have policies for bullying prevention and education, according to the Colorado Department of Education’s own model policy on bullying.

Additionally, as of the 2022-23 academic year, every school must report how many incidents of bullying occurred under what is known as Jack and Cait’s Law.

The state law, passed in 2021, also says that districts have to craft bullying prevention policies that at a minimum use the approaches and practices outlined in the education department’s policy. The state’s guidelines must also clarify the role of cyberbullying during online learning and differentiate between conflict, bullying and harassment.

But there’s still not enough enforcement of how schools respond to bullying, said Rick Padilla. Jack and Cait’s Law is named after two teens who died by suicide, including Padilla’s son Jack, who died in 2019.

“There’s not enough oversight,” Padilla said. “I talk to educators who have never heard about the policy and they have an obligation to report any instances of bullying.”


District and school employees don’t always realize how damaging bullying is to students and they can mistake it for conflict between two people, said Barbara Coloroso, a Colorado author and educator who has written a book on bullying.

Conflict is between two people and is something that can be resolved, such as fighting over a soccer ball. But bullying is targeted, there is an imbalance of power, and is about “contempt for another human being,” she said.

A pattern of bullying

In Grand Junction, Harford “continuously alerted Orchard officials of the persistent bullying” her son faced and requested intervention into what was happening to her son.

The bullying her son faced dates back to August 2018 and involved students kicking, hitting and tripping him. Students also called Harford’s son names, including derogatory terms for people with disabilities, according to the lawsuit.

Harford’s son has a PTEN gene condition, which affects his motor skills, gives him headaches, among other symptoms, she said.

And in the case involving Eaglecrest High, students told a classmate with autism spectrum disorder that he “was the reason bullies existed” in October 2021, according to the lawsuit. Then later that month, a student from the same class pushed him at the top of a staircase, causing him to fall down the steps. The incident fractured a bone in the student’s leg, according to the lawsuit.

The school knew the classmate “had a history of unprovoked violent behavior towards other students,” the lawsuit alleged.

“The district had a duty under the Claire Davis Act to protect students from reasonably foreseeable harm from incidents of school violence,” the lawsuit said.