Deliberate Indifference to Bullying Can Amount to Massive Liability – Lessons from the Pine Bush Settlement

Zachary-Schurin$4.48 million.  That’s how much the Pine Bush School District in central-New York just agreed to pay to settle a lawsuit brought by a group of current and former students who alleged that school administrators were deliberately indifferent to their repeated complaints of anti-Semitic discrimination and harassment.

While the sheer amount of the settlement itself is jaw-dropping, given the nature of the plaintiffs’ allegations, it is not surprising to see why the district elected to settle the case rather than risk an adverse jury verdict.

The allegations are appalling.  The five plaintiffs – all Jewish – alleged that they were subjected to a systemic pattern of abuse over a period of many years.  Students were subjected to anti-Semitic epitaphs, “Hitler salutes” and had swastikas drawn on their lockers, books and notebooks.  According to the plaintiffs, swastikas and other anti-Semitic graffiti were drawn in bathrooms and other common areas and often went unremoved for weeks or even months.  Several students alleged they were physically assaulted.

Significantly, the students also alleged that school officials – from lunch room monitors all the way up to the Superintendent of Schools – were deliberately indifferent to the reports of harassment that both they and their parents made.  In this regard, the students claimed that school administrators either took no action or insufficient action to discipline students who engaged in anti-Semitic behavior.

If nothing else, this case illustrates the massive liability public school districts can face if they are “deliberately indifferent” to harassment or bullying based on a student’s protected class status (race, color, religion, gender, etc.).  Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 both subject school districts to liability if they fail to adequately respond to severe and pervasive discrimination.  Deliberate difference is found if a “school's action—or inaction . . . at a minimum, cause[s] students to undergo harassment or make them liable to or vulnerable to it.”  Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 666 (2nd Cir. 2012).

So What Is The Lesson?

Whether a school district’s actions or, more precisely, inaction rose to the level of deliberate indifference is necessarily a fact-specific, case-by-case inquiry.  There are, however, lessons that boards of education and administrators can learn from the Pine Bush settlement and cases like it.

First, administrators should err on the side of prompt and substantial discipline in cases involving student discrimination.  Even though the courts repeatedly voice their reluctance to second-guess the disciplinary decisions of administrators, in considering deliberate indifference claims, courts will often consider the end result in determining whether a school’s response to allegations of harassment was sufficient.   Thus, disciplinary measures that fail to stem recidivist behavior by the same or other students – particularly where the victimized student’s protected-class status is the catalyst for this misconduct – will be Exhibit A in a deliberate indifference case.

Second, a failure to adhere to -- and regularly update -- bullying and non-discrimination policies, and to train staff in implementing such policies can be evidence of a district’s deliberate indifference to student civil rights.  Notably, the Pine Bush plaintiffs buttressed their other allegations of specific bullying by asserting that the district failed to train staff on how to address and prevent harassment.

Third, student and parent complaints of bullying or discrimination must be taken extremely seriously. Delayed or haphazard efforts to investigate and remediate harassment are inadequate and can ultimately be deemed legally insufficient.

The Pine Gross settlement should get every district administrator and school board member’s attention.  Deliberate indifference claims can expose school districts to substantial liability and, under certain circumstances, can leave individual Board members and district employees open to individual liability.  As always, an ounce of prevention is worth a pound of cure, and educational institutions should take prompt, proactive steps to ensure that they are prepared to, and are, adequately and appropriately responding to student discrimination claims.

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Alerts, commentary, and insights from the attorneys of Pullman & Comley’s School Law practice on federal and Connecticut law as it pertains to educational institutions, whether those institutions be public school districts, private K-12 schools, or post-secondary colleges and universities.

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