Posts tagged with "title ix"

An Overview of Legal Issues Relating to Bullying and Cyberbullying in Connecticut

The purpose of this article is to explore the laws, statutes, and cases relating to school bullying in Connecticut, specifically “cyberbullying,” and to provide an overview of the types of legal avenues that may be available to a victim of bullying.

According to Connecticut’s General Assembly Commission on Children, “25 percent of Connecticut high school students – and 35 percent of the state’s 9th graders – report having been bullied or harassed on school property in the previous year.”[1] Furthermore, the report states that “[m]ore than 900,000 U.S. high school students reported being cyberbullied in one year.”[2] According to the U.S. Department of Justice, “Bullying may be the most underreported safety problem in American schools.”[3]

The National Crime Prevention Council (NCPC) defines cyberbullying as “similar to other types of bullying, except that it takes place online and through text messages sent to cell phones.” www.ncpc.org.  The NCPC has said that cyberbullying can take the form of:

  • Sending mean or threatening emails, instant messages, or text messages;
  • Excluding someone from an instant messenger buddy list or blocking their email for no reason;
  • Tricking someone into revealing personal or embarrassing information and sending it to others;
  • Breaking into someone’s email or instant message account to send cruel or untrue messages while posing as that person;
  • Creating websites to make fun of another person such as a classmate or teacher;
  • Using websites to rate peers as prettiest, ugliest, etc.

One recent study from Texas describes cyberbullying as bullying in which bullies use the Internet, text messaging, and similar technology, “which give an illusion to anonymity, [and] encourage bullying by those who would not normally engage in such behavior.  They also allow a bully to avoid direct confrontation with the target.”[4]

I. Conn. Gen. Stat. §10-222d

In July 2011, Governor Dannel Malloy signed Public Act 11-232 into law, marking Connecticut’s first anti-bullying legislation.  The Act, known as “An Act Concerning the Strengthening of School Bullying Laws,” defines bullying as “the repeated use by one or more students of a written, oral or electronic communication, such as cyberbullying, directed at or referring to another student attending school in the same district.”[5] The law defines cyberbullying as “any act of bullying through the use of the Internet, interactive and digital technologies, cellular mobile telephone or other mobile electronic devices or any electronic communications.”[6]

The law requires that each local and regional board of education develop and implement a specific bullying policy addressing the existence of bullying within its schools.  Specifically, the law requires the school policy to:

  • Enable students to anonymously report acts of bullying to school administrators;
  • Appoint a safe school climate coordinator to facilitate the school’s plan;
  • Enable the parents or guardians of students to file written reports of suspected bullying;
  • Require school administrators (including teachers and staff) who witness bullying or receive reports of bullying to notify a school administrator no more than one day after the employee witnesses or receives the report of bullying; and to file a written report no more than two school days after making such oral report;
  • Provide for the inclusion of language in student codes of conduct concerning bullying;
  • Require each school to notify the parents or guardians of students who commit bullying and the parents or guardians of students who are the victims of bullying, and invite them to attend at least one meeting.

The Governmental Immunity Barrier

The doctrine of governmental immunity may preclude a plaintiff in Connecticut from recovering on a claim against a school district. Where the defendants’ activities in a bullying case are discretionary, they may enjoy the defense of governmental immunity; conversely, where the defendants’ activities alleged in the complaint are ministerial, they cannot be shielded by governmental immunity.[7] A ministerial act is an act which is “performed in a prescribed manner without the exercise of judgment or discretion . . ..”  There must be a “written policy, directive, or guidelines mandating a particular course of action.”[8] If a court deems the acts and responsibilities of a school district to be ministerial, governmental immunity will not serve to provide immunity.

That distinction was tested in Santoro v. Town of Hamden. There, the Connecticut Superior Court held that plaintiffs, parents of a bullying victim, could not maintain a private cause of action under §10-222d, finding that “section 10-222d does not provide a basis for circumventing the doctrine of sovereign immunity.” As such, the court granted defendants’ motion to strike two counts of plaintiffs’ complaint on the grounds that the school district was shielded by governmental immunity.[9]

There is an exception to the immunity defense, which permits a tort action in the circumstance of “perceptible harm to an identifiable person.” Scruggs, at *70.  The “identifiable person, imminent harm exception” applies when the circumstances make it apparent to the public officer charged with the exercise of discretion that his or her failure to act would be likely to subject an identifiable person to imminent harm.  Rigoli v. Town of Shelton, 2012 Conn. Super. LEXIS 349, at *9 (Feb. 6, 2012).  Connecticut courts adhere to a three-pronged test.  Failure of a plaintiff to meet all three prongs will be fatal to a claim. Id. The test requires: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.  Id. The Court in Esposito concluded that schoolchildren are a “foreseeable class to be protected.” Esposito, at *28.

II. Criminal Statutes and Cyberbullying

The 2011 revision to Connecticut’s anti-bullying statute included a new provision requiring the school principal, or the principal’s designee, “to notify the appropriate local law enforcement agency when such principal, or the principal’s designee, believes that any acts of bullying constitute criminal conduct.”[10]

Below is a non-exhaustive list of crimes that may be implicated by school bullying.

a. Criminal Harassment

Connecticut General Statute § 53a-182b, Harassment in the first degree, and 53a-183, Harassment in the second degree, are Connecticut’s criminal harassment statutes.  A person is guilty of harassment in the first degree when, “with the intent to harass, annoy, alarm or terrorize another person, he threatens to kill or physically injure that person or any other person, and communicates such threat by telephone, or by telegraph, mail, computer network, as defined in section 53a-250, or any other form of written communication, in a manner likely to cause annoyance or alarm and has been convicted of [a specifically enumerated felony].”

A person is guilty of harassment in the second degree when, “(1) By telephone, he addresses another in or uses indecent or obscene language; or (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm; or (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

Not all cyberbullying, however, rises to the level of statutorily defined harassment.  As one author has noted, “it is more difficult to prosecute bullies under anti-harassment or anti-stalking statutes due to the mens rea requirement in criminal proceedings . . . [and] thus, criminal statutes do not offer victims of cyberbullying a viable option to seek redress against their harassers.”[11]

b. Bias Crimes

A person is guilty of intimidation based on bigotry or bias when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, causes serious physical injury to such other person or to a third person.[12] Furthermore, a person is guilty of intimidation based on bigotry or bias when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, does any of the following:

–          Causes physical contact with such other person;

–          Damages, destroys or defaces any real or personal property of such other person; or

–          Threatens, by word or act, described in subdivision (1) or (2) of this subsection, if there is reasonable cause to believe that an act described in subdivision (1) or (2) of this subsection will occur.[13]

In an action for damages resulting from intimidation based on bigotry or bias, any person injured in person or property as a result of such an act may bring a civil action against the person who committed such act to recover damages for such injury.  Where a plaintiff in such an action prevails, the court shall award treble damages and may award equitable relief and reasonable attorneys’ fees in its discretion.[14]

c. Criminal Threats

Under Connecticut law, a person is guilty of threatening when: (1) by physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury; (2) such person threatens to commit any crime of violence with the intent to terrorize another person; or (3) such person threatens to commit such crime of violence in reckless disregard of the risk of causing such terror.[15]

III. Other Legal Issues Relating to Cyberbullying

a. Defamation/Slander

In Connecticut, “a defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”[16] To establish a prima facie case of defamation, a plaintiff must show that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiffs reputation suffered injury as a result of the statement.”  Id.

Cyberbullying by means of social networking sites such as Twitter or Facebook may give rise to defamation claims, if the plaintiff can meet all of the elements of defamation in Connecticut.  Sometimes, however, “the tortious statements are not necessarily published or widely disseminated to cause harm, but are specifically aimed at inflicting distress on a particular target based on the content of the communication itself . . ..”[17]

Therefore, defamation might not be a viable claim if the hurtful speech or writing is not disseminated to a wide enough audience.  It is, however, an avenue to be explored.

b. Intentional Infliction of Emotional Distress

In order for a plaintiff to prevail in an intentional infliction of emotional distress cause of action, the plaintiff must show: (1) that the actor intended to inflict emotional distress, or that he knew or should have known that emotional distress was likely a result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress, and (4) that the emotional distress sustained by the plaintiff was severe.”[18] In order for liability to be imposed, the conduct must exceed “all bounds usually tolerated by decent  of a very serious kind.”[19]

Though it can be difficult to prove that the conduct was of such a level as to be intolerable by any measure of societal standards, egregious cases of cyberbullying may gave rise to successful IIED claims.  To prove an IIED claim, there is no requirement that the plaintiff suffer any physical harm.  As the Connecticut Supreme Court stated in Whelan v. Whelan, “The enormity of the outrage carries conviction that there has in fact been severe mental distress which is neither figured or trivial so that bodily harm is not required.”[20] It should be noted that “mere insults, indignities, threats, petty oppressions, or other trivialities” will not give rise to a successful IIED claim.[21]

An interesting facet of IIED law in Connecticut, and one that may apply to cyberbullying claims, is the invocation of the continuing course of conduct argument. While IIED has a three-year statute of limitations, the Connecticut Supreme Court has stated: “Courts that have applied the continuing course of conduct doctrine to claims for intentional infliction of emotional distress have done so on the ground that it is the repetition of the misconduct that makes it extreme and outrageous.  Watts v. Chittenden, 301 Conn. 575 (2011).  In other words, a cause of action for IIED might not begin to accrue until plaintiff has endured such a repetitive course of conduct such that it has amounted to conduct that is extreme and outrageous.

In a 2003 case, the Connecticut Superior Court denied defendants’ motion to strike plaintiff-student’s claim for IIED, where the defendant co-conspirators locked the plaintiff in a locker, doused him with water, and threatened him with electrocution.[22]

Conversely, in Brodsky v. Trumbull, the court declined to exercise supplemental jurisdiction over plaintiff’s state-law IIED claim, having granted summary judgment as to all of plaintiff’s federal claims in favor of defendants.[23]

c. Negligence

Many bullying cases sound in negligence. In a 2007 case, plaintiff parents alleged that defendant school district owed their son, the victim, “a duty to protect him and prevent intentional harm, provide him with a safe and productive learning environment, and supervise students at [the school] to prevent the alleged acts which harmed [plaintiff].”[24] The Court, finding that plaintiff did not make a proper showing of entitlement to the “identifiable person-imminent harm exception to governmental immunity for tort claims” (discussed infra), granted defendants’ motion for summary judgment on the state-law negligence claim.

In Esposito, plaintiff student, a victim of bullying, brought an action alleging that the defendant school district, town, and the individual defendants were negligent in failing to follow its own bullying policies, thereby failing to ensure that plaintiff could attend school in a harassment-free environment.[25] Unlike in Scruggs, the court in Esposito denied the school board’s motion for summary judgment, finding that governmental immunity did not apply and that the plaintiff met the identifiable person-imminent harm exception, as “schoolchildren are a foreseeable class to be protected.” Id.

Finally, the doctrine of negligent supervision, codified at Conn. Gen. Law 52-572, may be available as a claim against the parents of a bully.

d. Recklessness

In a 2010 decision, a Connecticut court denied defendant school district’s motion for summary judgment, finding that the student-plaintiff stated a plausible cause of action based on the defendants’ “reckless and wanton” supervision of plaintiff’s fellow classmates.[26] The court found that the defendant school board “offered no argument as to why a claim of common-law recklessness [was] not cognizable,” given the specific facts of the case.[27]

e. Privacy Tort Laws

The emergence of cyberbullying by means of Facebook and Twitter and other social networking sites may give rise claims sounding in tort privacy laws.  Connecticut recognizes four distinct kinds of invasion of privacy torts.[28] Connecticut first recognized a cause of action for invasion of privacy in Goodrich v. Waterbury Republican, Inc., 188 Conn. 107 (1982), in which the Supreme Court clarified that the invasion of one’s privacy developed into “four distinct kinds of invasion of four different interests,” each of which “represents an interference of the right of the plaintiff to be let alone.”  Goodrich, at 125.

The four categories of invasion of privacy are: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of the other’s name of likeness; (3) unreasonable publicity given to the other’s private life; or (4) publicity which unreasonably places the other in a false light before the public. Id.; 3 Restatement (2d) of Torts.

A cyberbullying claim may implicate the third cause of action – unreasonable publicity given to the other’s private life, and may also implicate the fourth cause of action – false light.  To successfully allege a false light claim, a plaintiff must allege that “defendant gave publicity to a matter concerning the plaintiff.”  Goodrich.  “Publicity” refers to a matter made public through communication “to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”  3 Restatement of Torts (2d) §252d comment A.  The Restatement clarifies that publication do a small group of people will not give rise to a false light cause of action.   

f. Free Speech

A 2011 article in Law Technology News questioned how Connecticut’s anti-bullying law would fare in the face of free speech issues, noting that “[t]he new law puts school officials in the position of having to pass judgment on off-campus speech with little legal precedent to guide them . . . If they clamp down on online comments, they risk First Amendment challenges.  If they’re too lenient, they could be deemed responsible if cyberbullying leads to tragedy.”[29]

What worries some officials and lawmakers is the prospect of the regulation of speech that doesn’t take place on school grounds.  Legal Director of the ACLU of Connecticut Sandra Staub stated during testimony in March of this year that “simply plugging the phrase ‘cyberbullying’ into the current statute on bullying policies will encourage and allow schools to regulate children’s speech and conduct while they are in their own homes.”[30] Essentially, Staub’s argument sounds in the notion that what children do in their own homes is under the control of their parents, who, pursuant to the United States Supreme Court, have a due process right to raise their children in the manner they see fit.  Permitting schools to regulate such speech turns schools into internet police.  Instead, Staub suggests that it is the school’s responsibility to provide an education that instills in students the means by which to deal with conflicts in an appropriate manner.

g.  Federal Claims

Victims of bullying have brought substantive due process claims against school districts and school district officials. See, Risica ex rel. Risica v. Dumas, 466 F. Supp. 2d 434 (D. Conn. 2006) (granting defendant school district’s motion for summary judgment on the grounds that the School’s failure to prevent continued bullying did not rise to the level of a constitutional violation because the school had no constitutional duty to prevent student-on-student harassment).

Finally, where bullying is based on sexual harassment, a plaintiff may have a cause of action under Title IX of the Education Amendments. See, Brodsky, at *19 (granting defendant school board’s motion for summary judgment on the grounds that defendants acted reasonably and expeditiously in response to any alleged harassment against plaintiff student).  In order to successfully allege a student-on-student sexual harassment claim, the Supreme Court of the United States has clarified that the school administration must have “acted with deliberate indifference to known acts of harassment . . . [and the] harassment [must have been] so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”[31]

IV. Conclusion

With the popularity of social networking sites such as Facebook and Twitter, cyberbullying is as prevalent a problem as ever.  Schools around the country are taking steps to eradicate bullying of all kinds, but for the time being, it is everywhere.  Bullying issues can be handled by attorneys with experience in education law.  Navigating the school district system can be difficult, frustrating, and intimidating, and without the right guidance, you may find yourself reaching dead ends.  If you find yourself with questions relating to bullying, cyberbullying, or education law in general, do not hesitate to contact an attorney in our Westport, Fairfield County office, at 203-221-3100.


[1] Conn. Gen. Assembly Commission on Children, Anti-Bullying Bill Becomes Law, available at http://www.cga.ct.gov/coc/PDFs/bullying/2011_bullying_law.pdf (July 21, 2011).

[2] Id.

[3] http://www.cops.usdoj.gov/Default.asp?Item=2460

[4] Bullying: Legislative Changes, Texas Assc. of School Boards, Legal Servs., available at http://www.tasbrmf.org/training/conference/documents/2012conference_handouts/bullying.pdf.

[5] Conn. Gen. Law §10-222d(a)(1)

[6] Id.

[7] Estate of Girard v. Town of Putnam, 2011 Conn. Super. LEXIS 306 (Conn. Super. Ct. Jan. 28, 2011).

[8] Rigoli v. Town of Shelton, 2012 Conn. Super. LEXIS 349 (Conn. Super. Ct. Feb. 6, 2012).

[9] Santoro, 2006 Conn. Super. LEXIS 2418, at *9 (Aug. 18, 2006); see also, Karlen v. Westport Bd. Of Educ., 638 F. Supp. 2d 293, 302 (D. Conn. 2009) (dismissing plaintiff’s claim pursuant to Connecticut’s anti-bullying statute because the statute does not provide for a private cause of action).

[10] Public Act No. 11-232.

[11] Todd D. Erb, Comment, A Case for Strengthening School District Jurisdiction to Punish Off-Campus Incidents of Cyberbullying, 40 Ariz. St. L.J. 257, 279 (2008).

[12] Conn. Gen. Stat. §53a-181j.

[13] Conn. Gen. Stat. §53a-181k.

[14] Conn. Gen. Stat. §52-571c.

[15] Conn. Gen. Stat. §53a-62.

[16] Cweklinsky v. Mobil Chem. Co., 267 Conn. 210, 217 (2004).

[17] Andrew S. Kaufman, Cyberbullying and Intentional Infliction of Emotional Distress, 245 New York Law Journal 27, Feb. 9, 2011.

[18] Peytan v. Ellis, 200 Conn. 243 (1986).

[19] Id., quoting Prosser & Keeton, Torts, 5th ed. 12, page 60.

[20] Whelan v. Whelan, 41 Conn. Sup. 519, 522 (1991).

[21] Restatement 2d.

[22] Gasper v. Sniffin, 2003 Conn. Super. LEXIS 1363 (Conn. Super. Ct. May 6, 2003).

[23] Brodsky v. Trumbull Bd. Of Educ., 2009 U.S. Dist. LEXIS 8799, at *28 (D. Conn. Jan. 30, 2009).

[24] Scruggs v. Meriden Bd. Of Educ., 2007 U.S. Dist. LEXIS 58517, 67-68 (D. Conn. Aug. 7, 2007).

[25] Esposito v. Town of Bethany, 2010 Conn. Super. LEXIS 1050, at *1 (Conn. Super. Ct. May 3, 2010).

[26] Dornfried v. Berlin Bd. of Educ., 2010 Conn. Super. LEXIS 2537 (Conn. Super. Ct. Oct. 4, 2010).

[27] Id., at *8.

[28] Law Offices of Frank N. Peluso, P.C. v. Rendahl, 2012 Ct. Sup. 2356 (Aug. 15, 2012).

[29] Jacqueline Rabe, New Conn. ‘Cyberbullying’ Law Prompts Free Speech Debate, Law Technology News (Sept. 7, 2011).

[30] Sandra Staub, Written Testimony Opposing Raised Bill No. 1138 An Act Concerning the Strengthening of School Bullying Laws.

[31] Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999).

Military Law & Policy Poses New Challenge for Sexual Harassment Law

Several years ago, West Point cadets initiated first-year students, including young women, by teaching them to sing the following chant while marching: ”I wish that all the ladies were holes in the road and I was a dump truck. I’d fill ’em with my load.” Years before that, Air Force Academy cadets sang similar refrains marching to and from training events. One chant described taking a ”chain saw” to cut a woman ”in two” so that they could keep ”the bottom half and give the top to you.” Two years ago, a West Point investigation revealed that a cadet on the rugby team had instructed a teammate to ”get your girl on a leash.”

These incidents expose the entrenched sexism that is tolerated at the three military services academies overseen by the Department of Defense — West Point, the Naval Academy and the Air Force Academy. They also help explain repeated reports that the academies have not taken complaints of sexual assault and harassment seriously. The pattern is familiar: Each revelation incites an outcry, the academies announce reforms and the schools’ efforts prove ineffective. What endures are the chants, and the institutional misogyny they reveal.

We are student members of a legal clinic at Yale Law School representing a nonprofit group that aims to eradicate gender discrimination in the military. The Service Women’s Action Network, founded in 2007 by female veterans of the Marine Corps and the New York Army National Guard, has long objected to the way apathetic administrators at the service academies have let students get away with harassment and assault.

Part of the problem is that the military service academies are not subject to the laws that have helped students at civilian schools force their colleges to shape up. Title IX requires almost all American schools that receive federal money to eliminate sex discrimination, including sexual violence. Students can file complaints with the Department of Education to allege discriminatory policies or practices on their campuses, including the mishandling of sexual assault and harassment claims. The Department of Education has opened investigations into more than 100 schools, helping to set off an important national conversation on campus assault.

But Congress exempted the service academies when it passed Title IX in 1972. Perhaps legislators feared imposing Department of Education oversight onto military affairs. Maybe they failed to even consider the possibility of sex discrimination at the academies, which did not admit women until four years later. Whatever the reason, the result of Congress’s omission is that the approximately 2,700 female cadets and midshipmen are deprived of a fundamental protection necessary for their safety and equality.

Students on military campuses can file individual complaints of sex discrimination and misconduct within their academies, which are ultimately decided by various levels within the chain of command. But they have no one to turn to when their academies mishandle their reports or engage in other practices that hurt women. If a cadet or midshipman who reports sexual harassment and discrimination is mistreated by her academy, she can appeal the decision within the academy system and her chain of command, but she can’t appeal the manner in which such decisions are made. Her civilian peers, by contrast, can bring such claims to the Department of Education.

As it is, very few cadets and midshipmen come forward to report sex discrimination, but not because they aren’t experiencing it. According to the Department of Defense’s own surveys and data, 8 percent of women at the military academies were sexually assaulted last year, almost half faced serious sexual harassment and nearly 90 percent experienced other forms of sexism and discrimination. Yet fewer than 5 percent of the roughly 1,400 women who were sexually assaulted or harassed reported what had happened to them within their existing systems.

There is a simple way for President Obama, in his capacity as commander in chief, to put an end to this impunity. To provide cadets and midshipmen with a meaningful way to challenge sex discrimination at their academies, he should issue an executive order modeled on Title IX’s legal protections. This order would, in effect, borrow Title IX’s prohibition against sex discrimination and create a pathway for Title IX-like complaints within the Defense Department. The president should also order the Pentagon’s inspector general to enforce this anti-discrimination rule at the academies.

Over the past decade, public outcry about sexual assault on college campuses and in the military has spurred legal reform. But one group at the intersection of these issues — women at the service academies — are still waiting for meaningful change. Last year, while announcing a new task force on gender-based violence on civilian campuses, Mr. Obama spoke to survivors directly: ”I’ve got your back,” he said. Female cadets and midshipmen volunteer to serve our country — the president should have their backs, too.

If you feel you have been mistreated by your employer or in your place of employment and would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

This case was not handled by our firm. However, if you have any questions regarding this case, or any employment law matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.


Source: Ashley Anderson, Elizabeth Deutsch, Stop Assaults on Military Campuses, The New York Times, (May 12, 2015) available at http://www.nytimes.com/2015/05/12/opinion/stop-assaults-on-military-campuses.html

***All posts for the MayaLaw.com blog are created as a public service for the community. This case overview is intended for informational purposes only, and is not a solicitation of any client.***

Deliberate Indifference Required for School to be Liable under Title IX for Student-Student Harassment

In a New York District decision earlier this year, a student’s cause of action under Title IX of the Civil Rights Act against the Monroe-Woodbury School District was denied because it did not show deliberate indifference in response to the student’s claim of student-to-student sexual harassment.[1]

Parents on behalf of their fifteen year old daughter brought suit against Monroe–Woodbury Central School District pursuant to Title IX of the Civil Rights Act of 1964, alleging that she was deprived of an educational environment free from sexual harassment as required by federal law.

Beginning in January 2010, when she was in the eighth grade, the student was subjected to teasing, taunting, and physical bullying by other students, which she reported to her guidance counselor.  She was sexually assaulted by a male classmate who requested a handjob and subsequently ran her  hands over the genital area of his pants and attempted to shove her hands down his pants.[2] As a result of the incident, the student alleges that she was subjected to more taunting and name-calling by other students and in response began to engage in self- injurious behavior by cutting herself. When she began attending Monroe–Woodbury High School in September, another student and friend of the first continued to harass her and in November sexually assaulted her by pinning her against a locker and pushing his hands down her pants and blouse, touching her genital area and breast.[3]  The student began missing school frequently to avoid continued harassment.  At some point she confided in her guidance counselor that her absenteeism and self-injurious behavior was the result of the persistent teasing and the two incidents of sexual assault by her classmates.[4]

The School District recommended that she attend the GO Program, an out-of-district academic program, to which her parents agreed. After her first day there, CF reported to her parents that she was uncomfortable with this placement because the students there were “in many cases, not attending their regular high schools due to serious disciplinary records and incidents.”[5] When her parents again met with the principal, they requested that their daughter be transferred to another public school to continue her high school education.  The principal refused saying there were no other options besides the GO program.[6]

The parent brought suit alleging the school failed to: (1) initiate an investigation upon the parents’ verbal complaint; (2) conduct a prompt, equitable, and thorough investigation of the charges; (3) ensure that immediate corrective action be taken, including subjecting the offending individuals to appropriate disciplinary measures; and (4) inform CF of her right to pursue legal remedies.

Title IX of the Civil Rights Act of 1964 states that “[n]o 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.” 20 U.S.C. § 1681(a)[7]. Title IX contains an implied private right of action for plaintiffs who bring suit against educational institutions that receive federal funding, and liability may be imposed upon a school district if it is found to be in violation of this law.

Title IX funding recipients may be held liable for student-on-student harassment if the plaintiff can establish damages only where the school district: (1) was deliberately indifferent; (2) to sexual harassment; (3) of which it had actual knowledge; (4) that was so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational opportunities or benefits provided by the school.[8] A showing of deliberate indifference requires that the school had actual knowledge of the sexual harassment and either responded in a “clearly unreasonable manner in light of the known circumstances,”[9] or responded with remedial action only after a “lengthy and unjustified delay.”[10]

The Court rejected the plaintiff’s assertions that the GO Program was an “inappropriate” placement for her because it did not provide her with a “regular high school environment.” Saying even if it was inappropriate, “Title IX simply does not require recipient school districts to provide students with a ‘regular high school environment.’ Title IX does not prescribe any particular educational experience at all. Rather, Title IX merely prohibits schools from excluding anyone, on the basis of sex, from participating in an educational program that receives federal assistance; or denying the benefits of such programs on the basis of sex; or subjecting anyone in such programs to discrimination on the basis of sex.”[11]  Finding that the school did not cause the discrimination and the School District took some remedial action (not clearly unreasonable under the circumstances) in response to the student’s complaints, the Court dismissed the action.

Bullying and harassment in school should never be tolerated.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable education law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about bullying, student harassment, school liability or any other matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist., 12 CIV. 2200 ER, 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013)

[2] Compl.¶¶ 10-11

[3] Compl.¶¶ 12-13

[4] Id.

[5] Compl.¶¶ 14

[6] Id.

[7] Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681(a)

[8] Williams v. Bd. of Regents of the Univ. Sys. of Georgia, 477 F.3d 1282, 1293 (11th Cir.2007)

[10] Hayut v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir.2003)

[11] KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist.

 

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Employee Files Retaliatory Discrimination Suit Against Yale University

A Yale employee filed a retaliatory discrimination suit against Yale University last week, in which she alleged that after Yale hired her in 1999 as a “security education coordinator” to ensure the university’s compliance with Title IX, which is the federal law that prohibits sex discrimination in education, the university ignored her solutions, responded with indifference, and cut her pay.  Ultimately, Susan Burhans alleged that Yale University made it impossible to do her job, which was to “develop campus safety programs and strategies to ensure Yale’s compliance with Title IX and related laws,” according to the complaint.

Burhans stated that throughout the tenure of her employment, she brought to the attention of school administrators concerns about Yale’s “non-compliance with the Title IX and related laws.”  In April 2011, sixteen students filed a complaint alleging that the university had allowed a hostile sexual environment to persist on campus. According to Burhans’ complaint, “Yale responded to Ms. Burhans’ concerns with indifference, hostility and retaliation in many forms including job termination, initially in March 2010, despite ten years of service with excellent performance evaluations.”  Though Burhans was re-hired as a part-time, contract employee, the complaint alleges that she had no authority to oversee compliance with Title IX in this capacity, and was ultimately terminated, effective November 2012.  The action seeks at least $10 million in damages.

According to the United States Supreme Court, “retaliation against individuals because they complain of sex discrimination is ‘intentional conduct that violates the clear terms of [Title IX].’”[1] To properly allege a retaliatory discrimination case under Title IX, a plaintiff must demonstrate: (1) protected activity by the plaintiff; (2) knowledge by the defendant of the protected activity; (3) adverse school-related action; and (4) a causal connection between the protected activity and the adverse action.[2] Once a plaintiff has established those four elements, the burden shifts to the defendant “to articulate a legitimate, non-discriminatory reason for its actions.”[3]

Though Yale has yet to officially respond, a university spokesman stated in an email that the lawsuit is “baseless.”[4]

If you are faced with discrimination in the workplace, whether it be gender, sex, religious, or ethnicity based, you should consult with an employment attorney.  The attorneys at Maya Murphy, have represented employees in the Fairfield County region and are knowledgeable and experienced in the employment field.  Contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com.


[1] Papelino v. Albany College of Pharm. of Union Univ., 633 F.3d 81, 91 (2d Cir. 2011); quoting Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005).

[2] Papelino, at 91.

[3] Id.

[4] http://www.yaledailynews.com/news/2012/oct/15/former-employee-files-title-ix-retaliation-suit/

 

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Former Student Brings Title IX Suit Against Wesleyan University

In a case that has garnered national attention, a former Wesleyan University student filed a federal lawsuit in Connecticut’s district court against Wesleyan, alleging that the university failed to protect her from dangers of the Beta Theta Pi fraternity.  The female says she was raped at the fraternity two years ago at a party.

The complaint charged Wesleyan with violating Title IX and alleged that the university violated the federal law by failing “to supervise, discipline, warn or take other corrective action” against the Mu Epsilon chapter of the Beta fraternity.  The complaint further stated that the university “did nothing to prevent, and was deliberately indifferent to, the harm caused to Jane Doe by the rape and outrageous sexual harassment and intimidation that followed her everywhere on campus.”  Finally, the complaint alleged that the school “acted with deliberate indifference towards the rights of Jane Doe and other female students to a safe and secure education environment thus materially impairing Jane Doe’s ability to pursue her education at Wesleyan in violation of the requirements of Title IX.”[1]

Her complaint seeks punitive damages for negligence, Title IX violations, and premises liability.

Title IX is the federal gender-equality law, which states in part that “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.”

The legislation covers all educational and non-sport activities, such as school clubs and bands.  As such, the impact of the legislation is far-reaching and can touch many different aspects of one’s life.  If you feel that you or a loved one is being discriminated against on the basis of gender or sex, you should consult with an attorney experienced in the complicated field of employment law.  Our attorneys represent employees throughout Fairfield County, and are ready to advocate on your behalf.  Please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a consultation.


[1] http://articles.courant.com/2012-10-05/news/hc-wesleyan-rape-lawsuit-1006-20121005_1_wesleyan-university-student-wesleyan-community-lawsuit.

Title IX and State Law Regarding Mother-Son and Father-Daughter School Events

Written by Lindsay E. Raber, Esq.

Several months ago, the American Civil Liberties Union submitted a letter[1] with a school district on behalf of a single mother “whose daughter had no father in her life but was precluded from attending [a] father-daughter dance [held by the school PTO group].”[2] In a decision released on Tuesday, the superintendent of the Cranston, Rhode Island schools announced the end of father-daughter and mother-son activities “because of fears they are illegal under gender discrimination law.”[3]

In 1972, Congress enacted the Education Amendments, which included 20 U.S.C. § 1681. Commonly referred to as Title IX, this statute prohibits discrimination on the basis of sex: “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 […].”[4] There are numerous exceptions to this general prohibition, including subsection (8):

[T]his section shall not preclude father-son or mother-daughter activities at an educational institution, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided for students of the other sex […][5]

The Cranston school district was concerned that State law did not have comparable exception language. Therefore, it conceded that “it could be argued […] that a father-daughter dance and a mother-son baseball game are not comparable activities” and, contrary to federal law, “perpetuates outdated notions of ‘girl’ and ‘boy’ activities.”[6]

Here in Connecticut, the General Statutes also prohibit discrimination in public schools:

Each… child shall have… an equal opportunity to participate in the activities, programs and courses of study offered in… public schools… without discrimination on account of race, color, sex, national origin or sexual orientation…[7]

However, much like with Rhode Island, there appears to be a distinct absence of exceptions similar to those found in Title IX. As such, it will be particularly interesting to see the reaction of our legislators in responding to this situation, or whether it will take the threat of litigation to spur action. At the very least, school districts nationwide should be on notice and take preemptive measures to make sure they aren’t the next Cranston, Rhode Island school district.

Should you have any questions regarding Title IX, discrimination in public schools, or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. at Maya Murphy, P.C.’s Westport office located in Fairfield County at (203) 221-3100 or at JMaya@mayalaw.com.

[1] Letter to Superintendent Nero of the Cranston School Department, submitted May 2, 2012: www.riaclu.org/documents/CranstonSchoolDanceLetter.pdf

[2] “RI School System: Dad-Daughter Dances Violate Law,” by the Associated Press. September 21, 2012: Connecticut.cbslocal.com/2012/09/21/ri-school-system-dad-daughter-dances-violate-law

[3] “School Concludes Bias Law Bars Father-Daughter Dances,” by Debra Cassens Weiss. September 19, 2012: www.abajournal.com/news/article/school_concludes_discrimination_law_bars_father-daughter_dances

[4] 20 U.S.C. § 1681(a).

[5] 20 U.S.C. § 1681(a)(8).

[6] See Footnote 2.

[7] Connecticut General Statutes § 10-15c.

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