|June 11, 2014|
Previously published on June 3, 2014
In a case of first impression in New York, a state court has ruled that a school district can face potential liability under the state’s anti-bullying laws, even where the bullying victim is not one of its own students.
The decision in J.G.S. v. Bellmore-Merrick Central High School District focused on New York’s 2012 Dignity for All Students Act (DASA). Briefly, DASA requires a school district to adopt “policies intended to create a school environment that is free from discrimination or harassment.” The school district’s personnel are required to “lead or supervise the thorough investigation of all reports of harassment, bullying and discrimination.” DASA also requires that a school district have in its curriculum for grades kindergarten through 12 “a component on civility, citizenship and character education.” It also mandates a “minimum suspension period, for students who repeatedly are substantially disruptive of the educational process.”
The J.G.S. court held that DASA should be read liberally and that the alleged acts of cyber bullying by a school district’s students are the type of conduct school districts have a duty to regulate. The court noted it would be premature to express an opinion as to whether the school district’s actions after being notified of the bullying were in compliance with the obligations under DASA. Nevertheless, in denying the school district’s motion to dismiss, it ruled that a school district’s duties under DASA extend to any student - even one not enrolled in that district - if the students’ ability to learn in school is adversely affected by bullying from students in their district.
In J.G.S., the plaintiff alleged that the Bellmore-Merrick Central High School District (the District), its middle school principal and the District’s superintendent violated DASA. The plaintiff’s allegations against the defendants included that they permitted “harassment, bullying and cyber bullying perpetrated by the members of the District’s student body upon the minor plaintiff.” The plaintiff was previously subjected to bullying in the District by other students and transferred out of the District prior to this incident. The plaintiff was also the subject of an anonymous lewd video, which was allegedly circulated by two minor students in the District, where the plaintiff was falsely represented as a female engaged in a lewd act. The plaintiff’s parents notified the District about the video and asked the District “to take action, to prevent further defamation, bullying [and] cyber bullying.” The complaint alleges that the same two students continued to advise other students at school that the individual in the lewd video was the plaintiff. The plaintiff’s parents subsequently testified at a municipal hearing that the lewd video circulated by the District’s students was so upsetting to the plaintiff that she was unable to focus on her schoolwork.
Both sides conceded that under DASA, “no student shall be subjected to harassment or bullying by employees or students on school property or at a school function.” Nevertheless, the District argued that it did not owe a duty of supervision for the plaintiff’s benefit since the plaintiff was not a student in the District. The court found this argument unavailing. In so ruling, the court relied heavily on the legislative history of DASA, which provides in relevant part that public schools should “prevent and prohibit conduct, which is inconsistent with a school’s educational mission.” The court also noted that the provisions of DASA “shall be liberally construed to give effect to the purposes thereof.” The court rejected the notion that the protections of DASA apply only when the victim of student bullying is a student in a public school. Rather, the court held that DASA is for the protection of “‘all students from harassment, bullying, cyber bullying and discrimination.’” (Emphasis added.)
The J.G.S. decision also noted that a school district cannot turn a “blind eye” to “any potential serial harmful acts allegedly conducted or perpetrated by its students,” regardless of where the victim student attends school. The court found that “the statute’s purpose is to prevent the type of conduct complained of perpetrated by the public school students and under the circumstances herein, the statute applies to the District.”
In its motion seeking summary judgment that it had no liability to the bullying victim, the District advanced three arguments. First, it created policies, guidelines and an anti-bullying curriculum as required by DASA. Second, it conducted an investigation of the alleged bullying and took disciplinary action against the students who circulated the inappropriate video. Third, it conducted a student assembly on cyber bullying following this incident and shared the results with the local police department. However, the court ruled that it was premature to rule on the District’s motion for summary judgment on its alleged liability under DASA until further discovery was conducted.
The J.G.S. decision confirms the willingness of New York courts to liberally interpret DASA to ensure that it imposes broad responsibilities on school districts. Indeed, the decision teaches that in New York a school district is responsible for protecting not only its own students from harassment, bullying, cyber bullying and discrimination but also students from other districts. Nevertheless, the J.G.S. decision provides no guidance on what kind of school anti-bullying policies and guidelines are sufficient to prevent conduct “inconsistent with a school’s educational mission.” For example, in New York can a school district avoid DASA liability by simply having an anti-bullying policy in effect? The J.G.S. court’s broad reading of the responsibilities DASA imposes on New York school districts suggests the answer is no; however, two Connecticut cases so held in connection with claims under Connecticut’s anti-bullying law, even though the courts sustained the plaintiffs’ separate causes of action for negligence.
In the first Connecticut case, Esposito v. Town of Bethany, 2010 Conn. Super. Lexis 1050, 9 (Conn. Super. Ct., May 3, 2010), the court dismissed the claim against a town under the Connecticut statute that requires schools to have anti-bullying policies. However, the negligence claims against the board and school district alleging inadequate supervision remained, even though there were teacher investigations of bullying, as the court ruled that it was inappropriate on a motion for summary judgment. Similarly, in Hernandez v. City of W. Haven Bd. of Educ., 2013 Conn. Super. Lexis 1299, 16 (Conn. Super. Ct. June 6, 2013), the court found no liability under the Connecticut law mandating anti-bullying policies in school, as the statute does not provide for “private cause of action against the municipal defendants for failure to comply with its mandate,” but, again, sustained the separate negligence claims against the school.
As an investigation is required under DASA in response to a bullying complaint, how extensive must it be and what kind of disciplinary action is appropriate when confronted with evidence of student bullying? Also, can a New York school district defending a bullying case seek contribution from the students accused of bullying and their parents, as held recently by a New Jersey court? See V.B. a Minor by his Parent and Guardian v. Flemington-Raritan Regional Board of Ed, et al., Docket No. HNT-L-95-13 (NJ Superior Court, Hunterdon County, March 12, 2014).
Future decisions interpreting DASA will no doubt provide the answers to these and other important questions.