Law Journal Newsletter New York Family Law Monthly
By Jerome A. Wisselman
A Family Practitioner’s Perspective
A family consults with your office concerning their child, who has been victimized by bullying at her high school for over a year, and cannot tolerate the abuse any longer. The family has attempted to deal with the issue at the school level by directly engaging the school’s administration from the teacher to the principal, only to be met with frustration and inaction. Their child is suffering, her grades have fallen, and she is depressed. The parents have enrolled her in therapy. However, the situation remains intolerable.
Your first thought might be that this family has come to the wrong attorney. You deal with matrimonial matters, adoptions and child protection issues. But the parents in your waiting room are disappointed and frustrated and they have sought legal counsel. Their goal is to spur the educational community into action, stop the bullies from harassing their child, and assist her in regaining the peace she is entitled to enjoy. You want to assist them and their child, but you may know little about the issue of bullying and even less about what legal steps are available to deal with this situation.
How can you, as a New York family law attorney, help?
There are a number of legal options available to seek redress, including filing a civil cause of action in either the state or federal courts and seeking criminal prosecution. In addition, there is one situation in which a family practitioner may be just the right person to help a family whose child is being bullied: That is when the child’s tormentor is a current or former boyfriend or girlfriend, or someone else with whom the child has shared an intimate relationship. Under such circumstances, victims in New York may be able to petition Family Court for orders of protection.
But because bullies often act in concert with others who may not have shared an intimate relationship with the child, and in many situations school officials may be legally accountable, you will be better able to assist these clients if you understand the full extent of the law concerning bullying.
How Big Is the Problem?
Although bullying was once dismissed as an ordinary part of growing up, we now know that it is an insidious antisocial behavior that traumatizes millions of students each year and undermines the fabric of school life for millions more. Ted Feinberg, Bullying Prevention and Intervention, National Association of School Psychologists (2003).
Our collective consciousness was raised when, in the spring of 1999, two boys entered Columbine High School in Jefferson County, CO, and proceeded to open fire on fellow classmates, injuring or fatally wounding 36 students and mortally wounding themselves. At Columbine, the two social outcasts who themselves were bullied became high school killing machines.
More recently, Phoebe Prince, a 15-year-old student from South Hadley High School, in Massachusetts, hanged herself, purportedly as a result of the torment that she suffered at the hands of fellow classmates from her school. At least one of her alleged tormentors was reportedly a former sexual partner.
Although historically victims have had a hard time succeeding in punishing their offenders, it appears that we are poised on the threshold of a new understanding regarding children victimized by bullying and how we, as a society, must respond. It is important to note that while we tend to blame the advent of social networking sites and advances in electronic communication for the current prevalence of bullying among children, bullying has touched young people and influenced their development throughout time.
The Legislative Response
In response to the Columbine tragedy, legislatures across the United States began enacting new state laws designed to enhance school safety. Reflected within these policies were varying reactions to the increased concern about bullying and other forms of harassment that take place within the confines of an educational environment.
Until very recently, New York State’s Education Law addressed these issues exclusively in terms of school safety, couched in broad terms. The statutory plan required school districts to “adopt and amend a comprehensive district-wide school safety plan and building-level school safety plans regarding crisis intervention emergency response and management” without any specific mention made of bullying. See N.Y. EDUC. LAW § 2801-(a)(1) (McKinney Supp. 2007)
In September 2010, then-Governor David Paterson signed into law the Dignity for All Students Act, a sweeping and ground-breaking piece of legislation designed to ensure that all children receive an education free of discrimination and harassment. N.Y. EDUC. LAW § A3661B-10. It does so by declaring that “no student shall be subjected to harassment by employees or students on school property or at school functions.” The law prohibits any student from being subjected to discrimination based upon “a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex.” See § a3661-12. The new law seeks to curtail bullying by requiring all schools to adopt policies and guidelines that guard against it.
It is important to note that the provisions within the Act do not take effect for two years, giving schools time to develop curricula, devise codes of conduct and train their staff. The Act applies only to public schools as opposed to private and parochial learning institutions. Moreover, it is not punitive in nature. It does not offer a mechanism for redress, should a student become a victim of discrimination or harassment.
Certainly, however, the enactment of the Dignity For All Students Act serves to acknowledge that bullying is neither a right of passage nor an acceptable part of growing up and will no longer be tolerated in and around our schoolhouse gates.
New York State Law and Bullying
The theory most often advanced by plaintiffs against school administrators and districts is that they have tortuously breached the duty to provide adequate supervision for their student body. Under this theory of liability, a school and its administrators are held responsible for injuries proximately caused by the failure to provide adequate supervision. Thus, although a school is not an insurer of the safety of its students, it has a duty to adequately supervise them and is liable for foreseeable injuries proximately caused by the absence of adequate supervision. See Mirand v. City of New York, 84 NY2d 44 (1994); Doe v. Board of Educ. of Morris Cent. School, 9 AD3d 588 (2004); Wood v. Watervliet City School District, 30 AD3d 663 (2006).
In the leading, and oft-cited, case of Mirand v. City of New York, two sisters were beaten and terrorized by another female student, her brother and another male on school property. Initially, when one of the sisters was threatened by the female assailant, she went to the school security office to report the threat. However, the office was closed. Subsequently, she reported the incident to a teacher, who did nothing about it. She then went back to the school security office for protection, only to find that it remained closed. In that instance the New York State Court of Appeals found that the school had “recognized the need for and put into effect a security plan and thus breached its duty to provide plaintiffs with adequate supervision at a time when such supervision was most critical.”
The Mirand court further instructed that the foreseeability of one student intentionally harming another generally requires proof of “[a]ctual or constructive notice to the school of prior similar conduct … because, obviously, school personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily.” Again, in Mirand, the court found that the school had actual notice based upon the fact that they had created a security force due to the incidence of prior violence among the student body.
The Mirand court also enunciated the test for causation as being “whether under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school’s negligence.” These legal standards require the student to notify school officials of the abusive behavior before the school will be found liable for failing to guard against it. Then, if the school does not act, it is vulnerable to being sued successfully.
Another potential avenue of redress is to involve law enforcement. Filing a complaint with the local police precinct is the first step toward paving the way for criminal prosecution. In addition, this action will put the offending student and, possibly, the school on notice that the behavior is being taken seriously and will not be tolerated. It is a way of making an official record of the incident, as well as instigating police contact with the perpetrator and his or her family, which may, in itself, lead to the cessation of the bullying behavior.
Orders of Protection: A Newer Tool
Both the Criminal and Family Courts of New York State share concurrent jurisdiction over any proceeding concerning certain enumerated crimes that are set forth in the penal law (See CPL § 530.11, see also FCA § 812). By way of example, certain actions, which fall within the following categories under the penal law if proven, form the basis for the issuing of temporary orders of protection in both criminal and family courts. Although not an exhaustive list, it includes: disorderly conduct, harassment, stalking, attempted assault and assault. Pursuant to the Criminal Procedure law and the Family Court Act the parties that are protected by the granting of these Orders are “spouses, former spouses, parent and child or members of the same household … or [those who] have been in an intimate relationship.” ( See CPL § 530.11(1), FCA § 812) Under the Criminal Procedure Law and the Family Court Act, “the same family or household” means the following:
- persons related by consanguinity or affinity;
- persons legally married to one another;
- Persons formerly married to one another regardless of if they still reside in the same household;
- Persons who have a minor child in common, regardless of whether the persons have been married or have lived together at any time; and
- Persons who are not related by consanguinity or affinity, but are or have been in an intimate relationship regardless of whether these persons have lived together at any time.
Until July 2008, § 812 of the Family Court Act allowed “spouses or blood relatives of batterers to seek civil orders of protection against contact with their abusers, but not nonrelatives who may have had intimate relationships with them.” See Joel Stashenko, A Broader Law on Protection Orders Found Retroactive, 11/19/2008 N.Y.L.J. 1 (col. 2). The legislature amended § 812 so as to permit persons “who are or have been in an intimate relationship regardless of whether such persons have lived together at any time,” to seek civil orders of protection ( See FCA § 812 (1) (e)), and on July 21, 2008, Governor Paterson signed it into law. Thus, the Family Court Act and the Criminal Procedure Law now mirror each other. Under this expanded version of the law, an individual having had an “intimate relationship” with his/her abuser is no longer limited to seeking protection from the criminal courts alone. A child (or adult) in New York being bullied by a person with whom he or she was once in an “intimate relationship” – in a case like that of Phoebe Prince, for example – could seek an order of protection from Family Court. It is important to note that the standard of proof when pursuing orders of protection via the criminal procedure and penal laws requires proof that the acts occurred “beyond a reasonable doubt.” By comparison, civil orders of protection are granted in the Family Court if a petitioner can prove, by “a preponderance of the evidence” that the acts alleged were committed by the respondent. See FCA § 812. Consideration should be given to the varying levels of proof required when determining where to proceed.
Gender-Based Bullying: Title IX
As long as an educational institution is the recipient of federal funds it cannot permit sexual harassment, or any other behavior motivated by sexual discrimination, that has the effect of precluding a student’s educational opportunities. In pertinent part Title IX provides:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
See 20 U.S.C. § 1681(a) (1994).
The United States Supreme Court placed its “imprimatur on student-on-student sexual harassment” by creating a private cause of action under Title IX in its holding in Davis v. Monroe County Board of Education, et al., 526 U.S. 629 (1999).
In the Davis case, LaShonda Davis’ parents brought suit against the Georgia Board of Education and officials in her school district under Title IX. This, after their fifth-grade daughter was the victim of repeated unwanted sexual harassment from one of her male classmates. The harassment took the form of both offensive touching and verbal vulgarities that persisted unabated for five months before it ended. However, by that time the little girl’s academic performance had suffered. Her previously good grades had become failing grades and, one month prior to her tormentor’s guilty plea to sexual battery, her father discovered a suicide note she had written. The child had reported every incident of abuse to both her teacher and her mother. Her mother, in turn, notified the school administrators and the teachers charged with her daughter’s care and supervision. They did nothing to stop the boy’s abuse.
When her civil law claims were brought against the Board of Education and school officials under Title IX, her case was dismissed for failure to state a claim. See LaShonda D. v. Monroe County Board of Education, et al., 862 F.Supp. 363 (M.D. Georgia) (1994). The Court of Appeals affirmed the dismissal in LaShonda D. v. Monroe County Board of Education, et al., 120 F3d1390 (11th Cir. 1997). The U.S. Supreme Court, in an opinion written by Justice Sandra Day O’Connor, reversed the lower court’s decision, thus creating a private cause of action under Title IX. See also Susan P. Stuart, Jack and Jill Go to Court: Litigating A Peer Sexual Harassment Case Under Title IX, 29 Am. J. Trial Advoc. 243, 250 (2005).
To successfully pursue a claim under this legal theory the harassing behavior must rise to the level where, in effect, it deprives the victim of his or her educational opportunities. See John B. Roesler, Public School Liability: Constitutional Tort Claims for Excessive Punishment and Failure to Supervise Students, 48 Am. Jur. Trials 587, § 17.5 (2007), citing C.R.K. v. U.S.D. 260, 176 F. Supp. 2d 1145 (D. Kan. 2001). Notably, the standard applied is one of “deliberate indifference.” Thus, school officials are liable for damages “only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” See Davis, supra.
At first blush, the standard enunciated by the Supreme Court represents a victory for the injured plaintiff within the context of Title IX. However, upon closer examination, by setting down a deliberate indifference standard of proof, the Court seemingly has raised the bar to a height that is quite difficult to clear.
The Civil Rights Act
The Civil Rights Act, 42 U.S.C. § 1983, provides another avenue of redress for the victims of peer abuse in an educational setting. In pertinent part § 1983 states:
Every person, who under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The statute represents the vehicle for instituting personal injury and/or wrongful death constitutional tort actions for monetary damages, among other specified forms of relief. The theory behind pleading a § 1983 claim is that by permitting peer harassment and student-upon-student abuse, a school has effectively deprived the victim of his or her liberty. The theory has its underpinnings in a failure to supervise. Once again the standard of proof required is one of “deliberate indifference”: An educational institution is charged with providing a reasonably safe school environment and, as a result, cannot be deliberately indifferent in so doing.
The professional legal community has an array of legal options at its disposal to address acts of peer abuse. While in the past some of these options have not met with success, headlines and newscasts about horrible acts of bullying have shown us that it cannot be ignored. New York has now joined the ranks of other states by adopting a comprehensive plan aimed at curtailing bullying and educating the educators on how to implement change within their school cultures. And now, with the advent of New York’s recently amended legislation permitting Family Courts to issue orders of protection in certain bullying cases, attorneys in family practice have a new reason to assist clients with these matters. We must be prepared to assist children victimized by bullying; we, as lawyers, are being called upon to be instrumental in helping to end this form of abuse.
Jerome A. Wisselman, a member of this newsletter’s Board of Editors, is a partner in the Great Neck firm of Wisselman, Harounian & Associates. © Copyright 2011, Law Journal Newsletters