Anti-Semitic Bullying Claim Survives Motion To Dismiss

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Eastern District Judge Arthur Spatt recently denied Northport-East Northport Union Free School Districts’ motion to dismiss in a case brought by a Northport High School student who had been subject to anti-Semitic taunts and bullying. Defendants, (which include the High School’s principal and the District Superintendent, collectively “Defendants” or “School District”), claimed that the Plaintiff had failed to plead sufficient facts that would sustain an equal protection claim. Specifically, the school district maintained that “plaintiff has failed to plead anything other than conclusions and speculation that the defendants harbored any discriminatory animus towards plaintiff because of his religion, or any favoritism of the alleged harassers because they were not followers of the Jewish faith.”[1]  Judge Spatt disagreed with the School District’s position and found that the Plaintiff had alleged facts that would support an Equal Protection claim for deliberate indifference.  Citing a recent decision from the Second Circuit, DiStiso v. Cook, the Court held that Plaintiff’s Complaint sets forth the necessary details describing numerous instances of “student-on-student” harassment that “was so severe, pervasive, and objectively offensive as to have deprived the child ‘of access to the educational opportunities or benefits provided by the school.”[2]  Furthermore, the Court found that Defendants had knowledge that the Plaintiff was the target of such bullying and failed to act accordingly.[3]

The Plaintiff attended Northport High School from September 2010 to June 2011, but had been a student in the district since September 2002.[4] Towards the end of 2010, Plaintiff allegedly became the subject of anti-Semitic jokes and comments.[5] As the school year progressed the taunts purportedly became increasingly severe, as other students made anti-Semitic slurs including inappropriate remarks about the Holocaust.  The discriminatory comments allegedly extended to Facebook, where at one point a classmate posted a picture of Anne Frank with the caption “I don’t answer knock-knock jokes” to which another student responded “oh my gosh! I am laughing so hard im[sic] about to fall in the gas chambers.”[6] Plaintiff alleges that other students subsequently commented on the photo by making additional anti-Semitic insults.

In an essay submitted for his English class entitled “Anti-Semitism” the Plaintiff claims to have reported several instances where he was the target of such harassment. Despite the teacher having read and edited the assignment, Plaintiff asserts that no steps were taken to address the bullying that had been communicated by the Plaintiff in his paper.[7] Once the Plaintiff’s parents became aware that their son was the subject of merciless harassment by his classmates a meeting was purportedly held with the school principal, Irene McLaughlin, and the school superintendent, Dr. MaryLou McDermott. The meeting proved ineffective since Plaintiff claims that no further investigatory measures were taken. Inaction on the part of school officials allegedly persisted despite the fact that the Plaintiff and his parents were told that a message of religious and social tolerance would be delivered by teachers and a “Tolerance week” would be implemented at the beginning of the 2011 school year. The Plaintiff claims that the harassment continued but school officials failed to take any measure to remedy the situation. The Plaintiff proceeded to file suit in May 2012 against the district, Ms. McDermott, and Ms. McLauglin alleging violations of the Equal Protection Clause of the Fourteenth Amendment, New York Civil Rights Law, and New York State Human Rights Law (two claims under the NYSHRL have been dismissed).

In finding that the Plaintiff’s Complaint had adequately alleged facts to support an Equal Protection claim for deliberate indifference the Court stated:

“[g]iven the severe and shockingly offensive nature of the anti-Semitic slurs allegedly being made to the Plaintiff by other students, it appears to this Court that the supposed lack of action by the Defendants to either educate students about the harms of such religious discrimination or investigate and discipline the harassers was an inadequate response and thus, clearly unreasonable.”[8]

If your institution has any further questions or concerns about education law related matters, please email James G. Ryan at jryan@cullenanddykman.com or call him at (516) 357-3750.

A special thanks to Cynthia Thomas, a law clerk at Cullen and Dykman LLP, for help with this post.

  1. [1] Andrew Keshner, Anti-Semitic Bullying Claim Is Adequately Pleaded, Judge Says, N.Y.L.J (Jan. 7, 2013).
  2. [2] G.D.S. v. Northport-East Northport Union Free Sch. Dist., 2012 U.S. Dist. LEXIS 182976, 23 (E.D.N.Y. Dec. 22, 2012) (internal citation marks omitted).
  3. [3] Id. at 24.
  4. [4] Id. at 2.
  5. [5] Id. at 3.
  6. [6] Id. at 5.
  7. [7] Id. at 6-7.
  8. [8] Id. at 26.