York High School. Credit: Deb Cram | The York Weekly

YORK, Maine — Two York High School students were involved in sending insulting texts to one another in the fall of 2017 when the situation escalated to the point where one of the students was assaulted by the other student’s older brother, according to allegations contained in a U.S. District Court lawsuit.

As a result, the victim of the assault faced months of recovery and has not returned to York High, according to the suit, which implicates the School Department with failure to adequately protect him from not only the assault but years of bullying.

The lawsuit was filed by Michael and Erin McCann, the parents of “JM”, and names as defendants the York School Department and Timothy and Julie McCann, the parents of “GM” and “DM,” who are brothers. The plaintiffs and the defendants are not related. All three children are males.

The School Department and the defendant McCanns deny the allegations contained in the lawsuit, and the school department has filed a motion to dismiss the case against it.

The defendant McCanns argued in their response that GM and DM were acting in “self defense or in the defense of others,” and that JM’s parents are at least as much at fault for their child’s role in the conflict as the defendants were for theirs.

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The assault was widely publicized at the time in October 2017, and resulted in students holding a walkout and rally in support of GM, who said at the time that JM taunted him because he is gay. The incident led to soul-searching on the part of the YHS community, and several students subsequently worked with the administration to create a comprehensive bullying policy.

In the suit, Michael and Erin McCann lay out the allegations in the case involving their son. They said that in middle school, a Section 504 plan was fashioned for JM — arising from a federal anti-discrimination statute that requires a school to meet the needs of a student with disabilities in the same manner as the nondisabled student.

According to the suit, JM suffers from attention deficit hyperactivity disorder, which is what qualified him for a 504 plan. He also gets anxiety attacks, the suit alleges, that required the school to occasionally provide a quiet space for him. At the middle school and later at the high school, he was subject to “repeated incidents of bullying and harassment from fellow students based on perceived nonconformance with conventional gender norms and stereotypes.”

Asked what that meant, the plaintiffs attorney James Clifford of Kennebunk said, “using those words brings my client’s masculinity or perceived lack thereof into question, and fueled the ongoing bullying efforts.”

While he was at the middle school, the bullying included sexuality-driven banter and actions and destruction of his personal property. He claims he told school officials who did not intervene. In the fall of 2017, he enrolled at York High. His parents requested changes to his 504 plan to address “growing anxiety and concerns for his physical safety.”

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The plaintiff McCanns agree both JM and GM were engaging in texts back and forth that fall that were not complimentary. A group of ninth-grade girls and GM “bullied and harassed” JM via texts, and he and some of his friends also engaged in making comments. “The comments escalated from mutual teasing to offensive banter,” the suit states.

Timothy McCann, in the days after the assault, told the York Weekly his son GM was bullied by JM and his friends since the school year started.

The lawsuit alleges, on the other hand, that GM called JM a ”‘c**t’ and a ‘bitch.’” JM responded by “flipping the middle finger” at GM and his friends.

That is when, in early October, GM told JM his older brother would “beat him up,” according to the suit. JM told both the Section 504 administrator at the school and the school resource officer about the threat, the suit alleges.

On Oct. 20, GM’s older brother DM “savagely attacked and physically beat JM” in a school hallway. Clifford said the school security cameras recorded the assault, and he has viewed the video. “So there’s no way the family can deny it’s their son and no way the school can say it didn’t happen.”

According to the suit, JM was diagnosed with a head injury, several contusions and a dislocated jaw, and recuperation took three months. He has not returned to York High.

The plaintiff McCanns take umbrage with school administrators, who face several federal charges in the lawsuit. They say their son told many people not only about the bullying but about the imminent danger of the assault and they did not protect him.

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They charge the School Department with a violation of federal Title 9 protections, which protect students from discrimination on the basis of sex; violation of Section 504, because the school failed to provide protection to him; and violation of the 14th amendment, which stipulates a governmental body cannot “deprive any person of life, liberty or property, without due process of law.”

The School Department, in its motion to dismiss, takes exception to each claim, stating the suit “against the school fails to plead facts that give rise to federal law or constitution claims.”

Regarding the Title 9 count, the school department states the plaintiffs “fail to allege that the alleged harassment was on the basis of sex, and that the school had actual notice and acted with deliberate indifference.” The 504 claim should be dismissed because the McCanns “failed to exhaust their administrative remedies” as required under the law, and also “failed to plead a prima facie case of disability discrimination against the school.”

The 14th amendment alleged violation stems from the charge that the school did not comply with anti-bullying state laws or adequately train their employees in properly addressing bullying. But JM’s injuries were caused by other students “who are private individuals and not government actors,” the district responded.

The suit also charges Timothy and Julie McCann, as parents of DM, with assault, negligence, intentional infliction of emotional distress and liability of parents for damage of children. All rely on the claim that a parent under Maine law “has a duty to exercise reasonable care to control his minor child as to prevent it from intentionally harming others.”

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The defendant McCanns deny all of the allegations. According to court documents, they say the damages sought by the plaintiff McCanns “were the proximate result of the sole or comparatively greater fault of the plaintiffs or of others whose negligence is imputed to the Plaintiffs.”

They say they were “at all times acting in self defense and/or in the defense of others.” And they say the plaintiffs’ injuries, “if any, were caused by conditions beyond the answering defendants control or by the acts of others.”

The defendant McCanns said they were advised by their attorney Stephen Bell of Portland not to comment on the lawsuit. Lou Goscinski, superintendent of schools, said the same thing.

Clifford said the lawsuit is stayed while the judge rules on the school department’s motion to dismiss. He anticipates it could take two to four months before a ruling is forthcoming.