Case 7:09-cv-00411-GTS-TWD Document 1 Filed 04/08/09 Page 1 of 50

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

CHARLES PATRICK PRATT and A.E.P. through her parents and next friends Bobbi Lynn Petranchuk and Todd Edward Petranchuk,
Plaintiffs,
- vs. -
INDIAN RIVER CENTRAL SCHOOL DISTRICT; INDIAN RIVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION; JAMES KETTRICK, Superintendent of Indian River Central School District, in his official and individual capacities; TROY DECKER, Principal of Indian River High School, in his official and individual capacities; and JAY BROWN, JOHN DAVIS, KENDA GRAY, AMABLE TURNER and PATRICIA HENDERSON, in their individual capacities,
Defendants.

COMPLAINT : 7:09-cv-411 (GTS/GHL)
JURY DEMAND

Charles Patrick Pratt and A.E.P., through he r parents and next friends Bobbi Lynn Petranchuk and Todd E dward Petranchuk, bring this civil rights action on behalf of them selves, as well as for the benefit of similarly situated students, to remedy past and continuing willful acts of unlawful and unconstitutional discrim ination, harassment, and censorship by the Indian River Central School District (the “School District ”) and its governing body and current and form er policymakers, officials, and employees.

PRELIMINARY STATEMENT 1. Charles Patrick Pratt (“Charlie” or “Charles”) endured a decade of discrimination and harassment based on sexual orientation and se x as a student in the Indian River Central

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School District before he was forced to forsak e his public education to escape the escalating abuse. For Charlie, school was not a time to learn while making new friends – it was a course i n cruelty that grievously impaired his education, health, and well-being, and threatened his dignity and personal safety.
2. Beginning in Charlie’s earliest years in the School District, students subjected him to antigay and sexis t harassment, while school employees – ignoring multiple pleas from his parents – allowed the hostility to intensify. In middle school, the discrimination and harassment became a near daily occurren ce, as students att acked Charlie relentlessly and with i mpunity, hurling antigay and sexist slurs at him like “fa ggot,” “sissy,” “queer,” and “fudgepacker” – sometimes many times in a single school day and often in the presence of teachers. Students also physically intimidated and attacked Charlie in middle school, frequently shoving him in the hallways, knocking books from his hands and threatening to “beat [his] ass.”
3. At Indian River High School, the discri minatory abuse further intensified. In addition to the vicious nam e-calling, students re peatedly threatened Charlie with physical violence, vandalized his locker with antigay sl urs, slammed him forcefully into walls and lockers, and humiliated him by spitting on him , hurling food and spitballs at him , grabbing and pinching his buttocks, taunting him with offensive gestures, a nd knocking his belongings from his hands.
4. School District em ployees were aware of the ram pant antigay and sexist harassment on cam pus but deliberately refused to undertake even the most basic correctiv e or remedial measures, despite these employees’ clear authority and ability to do so. Instead, staff members at the Indian River High School whose very job it was to monitor and supervise student behavior in the cafeteria and ha llways frequently joined in on the harassment, ridiculing Charlie
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with stereotypically effem inate gestures in fr ont of other students and telling Charlie he was “disgusting” and “shouldn’t be gay.”
5. Particularly egregious were the blat ant discriminatory acts and callous indifference of Mr. Jam es Kettrick, the Indian R iver High School pr incipal at the tim e. Rather than conduct investigations or im plement remedial measures in response to known acts of antigay and sexist harassment, Mr. Kettrick responded to the abuse by blaming the victim, telling Charlie, for example, to “tone it down” if he wanted to avoid the verbal and physical intimidation and mistreatment from other students.
6. Mr. Kettrick, whose responsibilities included ensuring the security and welfare of all students at Indian River High Sc hool, told Charlie’s parents that their son’s safety on ca mpus could not be guaranteed. When Cha rlie’s parents decided that, to protect their son from further physical and em otional harm, they had no option other than to withdraw Charlie from Indian River High School, Mr. Kettrick did not propose or undertake any appropriate action to i mprove the school clim ate or change the co nditions that le d to th is drastic m easure. Instead, he told Charlie’s parents that he agreed with the decision.
7. Mr. Kettrick’s indifference and discrim ination extended far beyond Charlie. Despite Mr. Kettrick’s knowledge that antigay and sexist bully ing was seriously im pairing students’ health and edu cation, Mr. Kettrick refused to allow training of teachers to address the crisis, and he rejected proposals from Charlie a nd other students to be allowed to f orm a gaystraight alliance on campus. Even after Charlie and another gay student were forced to withdraw to escape discriminatory harassment, Mr. Kettrick failed to am end the school’s written policies to match state antiharassment law covering sexual orientation.
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8. Notwithstanding Mr. Kettrick’s discriminatory policies at Indian River High School and his gross indifference to the abuse Charlie suffered there, Mr. Kettrick was appointed Superintendent of the Indian River Central School District in 2006.
9. A.E.P. is Charlie’s younger sister and cu rrently is a sophomore at Indian River High School. After seeing first-hand the destruc tive effects of discrim inatory abuse endured by her older brother, A.E.P. was determ ined to create a safer, m ore supportive school environment for all students—regardless of sexual orientation— in the hope that no other student would be forced to endure the same harassment that drove her older brother from Indian River High.
10. To this end, A.E.P. recently attem pted to form a gay-straig ht student alliance at Indian River High School. School adm inistrators, however, have thwart ed her attempts to organize and advocate on behalf of mistreated students. Each time A.E.P. requested permission to form the student gay-straight alliance, school officials cate gorically, and unlawfully, denied her request. The reason th ey gave was that th ey believed that other students and parents in the community would not approve of such a group.
11. Meanwhile, harassment of students based on sex and sexual orientation continues at Indian River High, threatening the education, health, safety and well-being of students, and disrupting the school environm ent. School Distri ct officials and other e mployees continue to ignore the discrimination.
12. Accordingly, Plaintiffs seek a declar atory judgment, injunctive relief, and nominal, compensatory, and punitive damages to remedy violations of the federal Equal Acces s Act (the “EAA”), 20 U.S.C. § 4071 et seq., the Free Speech Clause of the Firs t Amendment to the United States Constitution as applied to the states by the Fourteenth Amendment, Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq., the Equal Protection
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Clause of the Fourteen th Amendment to the Un ited States Constitution, the Free Speech Clause and the Free Association Clause of Article I § 8 of the New York State Constitution, section 296 of the New York Hum an Rights Law, and sections 40-c and 40-d of the New York Civil Rights Law. Plaintiffs bring th eir claims pursuant to 42 U.S.C. § 1983, Title IX, the EAA, and state law.
13. Immediate injunctive relief is necessary to protect the public interest and to stop the deprivation of A.E.P.’s rights under the EAA, 20 U.S.C. § 4071 et seq., the First Amendment to the United States Constitution, Article I § 8 of the New York Constitution, New York Human Rights Law § 296, and New York Civil Rights Law § 40-c.
JURISDICTION AND VENUE 14. This Court has jurisdiction over Plainti ffs’ claims pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. Jurisdiction is also prop er over A.E.P.’s claims under 28 U.S.C. §§ 2201-2202 because she seeks a declaration of her civil rights. This Court has supplem ental jurisdiction over Plaintiffs’ related state law claims under 29 U.S.C. § 1367(a) because those claims arise out of the same case or controversy as Plaintiffs’ federal claims. 15. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part of the events that gave rise to Plaintiffs’ claims took place within the Watertown Division of the Northern District of New York.
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Plaintiffs 16.

PARTIES Plaintiff CHARLES PATRICK PRATT (“Char lie” or “Charles”) was a student at

various schools in the Indian River Central School District in the County of Je fferson, New

York, from approximately September 1993 through January 2004, and again for approxim ately

three weeks in the fall of 2004. Charlie is a na tural person, a current re sident of Jefferson

County, and a citizen of the State of New York. Charlie is a twenty-yea r-old gay male. As a

child and teenager, Charlie did not conform – and was perceived not to conform – to certain

sexist stereotypes of “m asculinity.” For exam ple, certain aspects o f Charlie’s expressive

gestures and manner of speaking were of a nature stereotypically associated with females.

17. Plaintiff A.E.P. is currently a sophomore student at the Indi an River High School

in the County of Jefferson, New York. A.E.P. is a natural person, a resident of Jefferson County,

and a citizen of the State of New York. A.E.P. is a fifteen-year-old female and sues here by and

through her next friends, parent s, and guardians, Bobbi Lynn Petranchuk (“Bobbi”) and Todd

Edward Petranchuk (“Todd”). Defendants
18. Defendant INDIAN RIVER CENTRAL SCHOOL DISTRICT (the “School

District”), an education corporation and association existing pursuant to the New York Education

Law, is a public school district predom inantly in Jefferson County, New York. The School

District is a “person” within the meaning of 42 U.S.C. § 1983. Upon information and belief, the

School District and each of its co mponent schools are recipients of federal financial assistance.

The School District is non-sectarian and exe mpt from taxation pursuant to § 408 of New York’s

real property tax law. Theresa Prim ary School, Evans Mills Prim ary School (each a “Prim ary

School” and together, the “Primary Schools”), Indian River Middle School (the “Middle

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School”), and Indian River High Sc hool are schools in the School District. Indian River High School has also been known as the Indian River Senior High School and the Indian River Central High School.
19. Defendant INDIAN R IVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION (the “Board of Educ ation” or the “Board”) is a public education corporation governing the School District pursuant to the laws of New York State. The Board of Education is a “person” within the m eaning of 42 U.S.C. § 1983. Upon inform ation and belief, the Board receives federal financial assistance.
20. Defendant JAMES KE TTRICK (“Mr. Kettrick ”), sued in both his official and individual capacities, is the current Superintende nt of the School District, a position he has held since 2006. From 1993 to 2006, Mr. Kettrick was the Principal of Indian River High, including at all relevant tim es during which Charlie was a st udent there. As Princi pal, Mr. Kettrick held final policymaking authority for th e School District with respect to the day-to-day enforcem ent of equal opportunity, antiharassm ent, and antibu llying policies at Indian River High. He also held final policymaking authority for the School Dist rict with respect to th e official approval of extracurricular student clubs and organizations at Indian River High. On information and belief, at all relevant tim es Charlie was a student at Indian River High, Mr. Kettrick’s approval was required for official recognition of a student extr acurricular organization or club. As Principal, Mr. Kettrick also had the ability and authority to take corrective action on behalf of t he School District to stop discrimination and harassment at Indian River High and to discipline perpetrators of such discrimination and harassment. Mr. Ke ttrick is a natural person and, upon infor mation and belief, resides in Jefferson County, New York.
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21. Defendant TROY DECKER (“Mr. Decker ”), sued in both his official and individual capacities, is the cu rrent Principal of Indian River High. Mr. Decker has held that position at all relevant tim es during which A.E.P. has been a stude nt at Indian River High. Mr. Decker currently has—and has had at all relevant times during which A.E.P. has been a student at Indian R iver High—final policym aking authority for the School District with respect to the official approval of extracurricul ar student clubs and or ganizations at Indian River High. At all relevant times that A.E.P. has been a student at Indian River High, Mr . Decker’s approval has been required for official r ecognition of a student extracurricu lar organization or club. Mr. Decker was also an Assistan t Principal of Indi an River High when Cha rlie was enrolled there. Upon information belief, as Assistant Principal, Mr . Decker had the ability and authority to take corrective action on behalf of the School District to stop discrimination and harassment at Indian River High and to discipline perpetrators of such discrimination and harassment. Mr. Decker is a natural person and, upon information and belief, resides in Jefferson County, New York.
22. Defendant JAY BROWN (“Mr. Brown”), su ed in his individual capacity, is currently an Assistant Principal of Indian Rive r High. Mr. Brown has he ld that position at all relevant times during which A.E.P. has been a student at Indian River High. As Assistant Principal, Mr. Brown has the ability and au thority to take corrective action on behalf of the School District to stop discrim ination and harassm ent at Indian River High and to discipline perpetrators of such discrim ination and harassm ent. Mr. Brown is a natural person and, upon information and belief, resides in Jefferson County, New York.
23. Defendant JOHN DAVIS (“Mr. Davis”), su ed in his individual capacity, was an Assistant Principal of Indian River High whe n Charlie was a student there. As Assistan t Principal, Mr. Davis had the ability and auth ority to tak e corrective action on behalf of the
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School District to stop disc rimination and harassm ent at I ndian River High and discipline perpetrators of such discrim ination and harassm ent. Mr. D avis is a natural person and, upon information and belief, resides in Jefferson County, New York.
24. Defendant AMABLE TURNER (“ Ms. Turner”), sued in her individual capacity, has been an employee of the Scho ol District during all relevant tim es at which Charlie and A.E.P. have been students at I ndian River High. Ms. Turner’s primary job responsibilities have included, and still include, m onitoring student conduct at Indian River High School in the lunch room, study hall, and/or other loca tions on campus to ensure a safe environm ent for all students. At all relevant tim es, Ms. Turner has had the ab ility and authority to take cor rective action on behalf of the School District to stop discrimination and harassment among students occurring in school areas that she monitors and to discipline perpetrators of such discrim ination and harassment. Ms. Turner is a natural person and, upon information and belief, resides in Jefferson County, New York.
25. Defendant KENDA GRAY (“Ms. Gray”), sued in her individual capacity, has been an employee of the School Di strict during all times at which Charlie and A.E.P. have been students at Indian River High. Ms. Gray’s primary job responsibilities have included, and still include, monitoring student conduct at Indian Ri ver High School in the lunch room, study hall, and/or other locations on ca mpus to ensure a safe environment for all students. At all relevant times, Ms. Gray has h ad the ability and au thority to take corrective action on b ehalf of the School District to stop discrim ination and harassment among students occurring in school areas that she monitors and to discipline perpetrators of such discrimination and harassment. Ms. Gray is a natural person and, upon information and belief, resides in Jefferson County, New York.
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26. Defendant PATRICIA HENDERSON (“Ms. Henderson”), sued in her individual capacity, has been an employee of the School District during al l times at which Charlie and A.E.P. have been students at Indian River Hi gh. Ms. Henderson’s prim ary job responsibilities included, and still include, monitoring student behavior at Indian River High School in the lunch room, hallways, and/or other locations on ca mpus to ensure a safe environm ent for all stud ents. At all relevant times, Ms. Henderson has had the ability and authority to take corrective action on behalf of the School District to stop discrimination and harassment among students occurring in school areas that she monitors and to discipline perpetrators of such discrim ination and harassment. Ms. Henderson is a natural pers on and, upon infor mation and belief, resides in Jefferson County, New York.
STATEMENT OF FACTS Discrimination and Harassment of Charlie Based on Sexual Orientation and Sex
27. From approximately September 1993 to Ja nuary 2004, and briefly in the fall of 2004, Charlie was a student in the Indian River Cent ral School District. Charlie is a gay m ale, although he did not disclose this fact to school officials or his peers until the 2002-2003 school year when he was in eighth grade.
Theresa and Evans Mills Primary Schools 28. From the fall of 1993 through the spring of 1998—from kindergarten through the end of fourth grade—Charlie was a student at Theresa Prim ary School and then Evans Mills Primary School. As his Kindergarten teach er wrote in a Pup il Progress Report, Charlie entered school an “enthusiastic little boy who is always willing to help”; the teacher found it to be “a joy working with such a happy little boy.” And w ith a supportive instruct or, Charlie departed Kindergarten after “work[ing] very hard . . . an asset to [the] classroom.”
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29. As a young prim ary school student, howev er, Charlie had already begun to be harassed because of his sexual orientation,1 as students began to taunt him with names like “gay” and “fairy.”
30. During this same period, Charlie also be gan to suffer harassm ent on the basis of sex.2 Specifically, Charlie’s nonconformity to sexist stereotypes, including but not limited to his tendency to socialize with fe males and his relative disinterest in sports as com pared to his m ale peers, made him the focus of additional ridicu le. Stud ents taunted Charlie with words lik e “pussy,” “sissy,” and “gir l,” and purported to im itate him with stereo typically female mannerisms and gestures. Students also m ocked Charlie with fem inized versions of his own name, calling him “Charlotte” and “Charlise.”
Indian River Middle School 31. Beginning with fifth grade in the fall of 1998 through the end of eighth grade in the spring of 2002, Charlie attend ed the Indian River Middle School (or “Middle School”), where the s evere and p ervasive harassment he e xperienced at the hands of his fellow students only escalated. Students subjected him to ongoing antigay verbal harassment, calling him names like “gay,” “fairy,” “fag,” “ queer,” “faggot,” and “fudgepacker .” He again was ridiculed frequently based on sex and gende r, as students purported to im itate him with m annerisms and gestures stereotypically considered fe male, and called him names like “pussy,” “sissy,” “Charlotte,” and “Charlise.”

1

References throughout the Complaint to discrimination and harassment “based on sexual orientation” “on

the basis of se xual orientation” and “because of sex ual orientation,” as well as refere nces to “antigay”

discrimination and harassment, include but are not limited to discrimination and harassment based on

perceived and/or presumed sexual orientation.

2

References throughout the Complaint to discrimination and harassment “based on sex,” “on the basis of

sex” or “because of sex,” as well as references to “sex” or “sexist” discrimination and harassment, include

but are not limited to discriminati on and harassment because of nonconformity to stereotypes based on sex

and gender.

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32. Throughout most of Middle School, the harassment of Charlie w as a daily occurrence. On the worst days, students hurled antigay and sexist slurs at Charlie many times in a single day and m ade him the focus of fr equent physical harassm ent—including pushing, shoving, and knocking books from his hands. Gym class was particularly difficult for Charlie, as it was in gym that he experien ced some of the m ost regular physical abuse. Beyond physical harassment, Charlie’s classm ates also threaten ed him with violence: tim e and again, students told Charlie they would “beat [his] ass.”
33. Charlie’s mother inform ed Charlie’s Middle School teachers about the antigay and sexist harassm ent perpetrated against her son. At one point she had a m eeting with approximately five school em ployees to disc uss the harassm ent, including the gym teacher, whose class was the site of particularly intense mistreatment. Eve n after these m eetings, however, no reasonable or appropriate rem edial action was taken by the employees or administrators, and the harassment continued unabated.
34. Bobbi also met with Charlie’s Middle School guidance counselor—Brian Moore (“Mr. Moore”)—to discuss the nature and frequenc y of the harassm ent. But instead of taking Bobbi’s reports seriously, Mr. Moor e dismissed her concerns. He to ld her, for example, that it was normal for middle school boys to engage in su ch harassment and that Charlie should endure it. Mr. Moore also purported to reassure her by saying that th e perpetrators of the harassm ent would in the future be “jealous” of Charlie for having female friends.
35. Mr. Moore’s reaction was especially troubling given his prof essed understanding of the damaging effects of bullying. In a 2006 Watertown Daily Ti mes article, for example, Mr. Moore expressed concern about the detrim ental impact of bullying on a victim ’s social,
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emotional, and intellectual development, noting that bullying could lead to absenteeis m, chronic anxiety, and depression.
36. Charlie’s own efforts to verbally defe nd himself typically backfired, as school employees turned a deaf ear to antigay language and instead punished Charlie for responding. On one occasion in sev enth grade, for example, in response to a stud ent taunting him yet again with the wo rd “faggot,” Charlie called the stud ent a “m onkey face.” A teacher then referre d Charlie to the assistant principal, and a “Notice of Disciplinary Action” was placed in Charlie’s school record. As was typical, the teacher who referred Charlie refused to listen to Charlie’s explanation of events and, upon inform ation and belief, took no action to discipline the student who had harassed Charlie.
37. Many School District employees at the Middle School – including most if not all of Charlie’s teachers – also pers onally witnessed the antig ay and se xist harassment of Charlie. The harassment of Charlie was on full display for all to see, as students brazenly shouted out slurs like “faggot,” “fag,” and “sissy” in the school’s hallways, cafeteria, and classrooms and on the bus to and from school. But despite the public nature of th e harassment and the com plaints from Charlie’s mother time and again to various authorities, school employees deliberately failed to intervene to stop the harassment.
38. Other students discovered Charlie’s sexual orientation when Charlie disclosed to a classmate during an on-line conve rsation during eighth grade that he was gay. T he classmate promptly printed the conversation, m ade copies, and distributed them to students at the Middle School. School em ployees eventually took som e of the copies. Charlie has been openly gay ever since.
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Indian River High School 39. In the fall of 2002, Charlie became a student at Indian River High School. Just as the severe and pervasive harassm ent based on bo th sexual orientation and sex had followed him in the m ove from Primary School to Middle School, it continued to f ollow him from Middle School to Indian River High. Students contin ued to brazenly and conspicuously shout antigay slurs at him like “faggot” in the hallways, cafeter ia and classrooms, and on the bus to and fro m school. 40. They also continued their sexist hara ssment of hi m by, am ong other things, ridiculing him with offensive gestures. Physical harassment and threats continued as well. And as before, school em ployees who witnessed discrim inatory harassment took no reasonable measures to stop it. Som e of the m openly bl amed Charlie. On one occasion, for exam ple, a teacher told Charlie that he was caus ing a nuisance after a student in the teacher’s class loudly called Charlie a “fag” in the teacher’s presence. 41. As described further below, som e employees directly participated in harass ing Charlie. 42. The ongoing discrim inatory abuse conti nued to take a toll on Charlie’s psychological and em otional health. During his first year at th e high school, he experim ented with alcohol and drugs in the ho pe of esta blishing social connections and m itigating his emotional distress. Although Charlie pursued treat ment that summer, his emotional distress and social isolation continued to worsen in response to escalating harassment. 43. Indeed, the antig ay and sexist abuse directed at Charlie becam e even m ore aggressive during his second year at Indian Ri ver High. W ith greater f requency and intensity than ever, students attacked Charlie with discri minatory slurs, pushed and shoved him forcefully in the hallways, knocked his belongings from his hands, and threatened him with violence. On at
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least one occasion, a s tudent threatened Charlie’s life. S tudents also humiliated Charlie by frequently hurling spitballs, f ood and other objects at him , grabbing and pinching his buttocks, and repeatedly vandalizing his locker with the word “fag.”
44. High school em ployees, including Mr. Ke ttrick, were aware of harassm ent inflicted on Charlie but displayed utter and willful indifference to it. In addition, som e Indian River High employees actively participated in the harassment of Charlie.
45. Defendants Ms. Gray and Ms. Turner — whose very job was to m onitor student conduct in the lunch room, study ha ll and other areas — frequently engaged in the same conduct they were responsible for preventing. They ha rassed and mocked Charlie based on his sexual orientation and sex, purporting to imitate Charlie by speaking and acting in a stereotypically effeminate manner when addressing him. This included raising the pitch of their voice, changing the way they stood, speaking with a lisp, and m aking limp-wrist gestures. This harassm ent and mockery took place on a near-weekly basis du ring Charlie’s first and second years at Ind ian River High, often in front of other students. Ms. Turner also frequently berated Charlie by telling him he was “disgusting,” that he “shouldn’t be gay” and that he “should make babies.”
46. During his time at Indian River High School , Charlie was one of very few openly gay male students. Another, Gregg Van Hoesen (“Gregg”) – a student one year senior to Charlie – experienced the same type of antigay and sexist harassment as Charlie. For exam ple, students frequently called Gregg nam es such as “faggot” and mocked him for talking and acting “like a girl.” Gregg repeatedly infor med Indian River High School e mployees, including Mr. Kettrick, of the severe, pervasive, and offensive harassment he faced on the basis of sexual orientation and sex. Gregg also reported that t eachers and staff m embers had ut terly failed to respond to this
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harassment. Gregg’s co mplaints to administrators began before Charlie was a student at Indian River High, and continued throughout Charlie’s tenure.
47. Gregg had also experienced harassm ent at the Middle School and had reported it to Middle School em ployees. His m iddle school guidance counselor told him not to be open about his sexual orientation because she believed his openness caused other students to harass his ex-girlfriend.
48. At Indian River High, despite Gregg’s frequent reports of harassment, neither Mr. Kettrick nor any other em ployee took any reasonabl e or appropriate acti on to prevent future harassment or to ensure that sta ff appropriately responded. Mr. Kett rick further made it clear to Gregg that Gregg could and shou ld avoid mistreatment by conforming to sexist stereotypes and by remaining silent about his sexual orientation. Mr. Kettrick even ref used to take discip linary action when another student punched Gregg in th e face and caused a bro ken tooth and a bloody nose. Instead, Mr. Kettrick attributed the attack to Gregg’s s exuality and told Gregg that he had brought the attack on himself.
49. Mr. Kettrick also inten tionally discriminated against both Charlie and Gregg in his enforcement of school policies, including the policy regarding public disp lays of affection. In November 2003, a student walked into a stairw ell at Indian River High and saw Charlie and Gregg – who had recen tly begun dating – excha nging a hug and kiss. Later that day, Mr. Kettrick had Charlie and Gregg rem oved from class and sent to his office, where Mr. Kettrick and Ms. Henderson threatened to punish Charlie and Gregg with detention if they were again seen engaging in such affecti onate conduct. During this meeting, Mr. Kett rick revealed his awareness that an invidious and dangerous antig ay environment existed among students, telling Charlie and Gregg that they should not kiss at school “for [their] own safety.”
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50. The above-described meeting with Mr. Ke ttrick diverged from standard school procedures in several m eaningful respects. F irst, the sch ool Handbook explains that public displays of affection by students “m ay,” if they “persist,” result in pa rental notification and a conference with administrators. And with respect to heterosexual couples exchanging a hug and kiss at Indian River High, the School District’s policy and practice was not—and is not—to pull students from class for a meeting with the principal or to threaten them with punishment.
51. In early 2004, Charlie’s emotional health sunk to new lows in response to a series of incidents involving vandalism of his locker. After the first incident – in which som eone had scrawled the word “FAG” in thick black marker across his locker door – Ch arlie did his best to wipe off the m arking, only to have it quick ly replaced with the word “FAG” written again, this time in permanent marker. Though Indian River High maintenance was able to remove even the permanent marker, little could be done when “F AG” again appeared on Charlie’s locker—this time carved into the metal.
52. On the heels of these traum atizing incidents, Charlie and his parents, Bobbi and Todd, demanded several m eetings with Principal Kettrick. They hoped to discuss ways to address the severe, p ervasive, and o ffensive antigay and sexist harassm ent and discrim ination Charlie experienced at school so as to am eliorate the severely detrim ental effects that this harassment and discrimination had on Charlie’s health, education, and well-being.
53. At one of the first of these m eetings with the principal and his parents, Charlie supplied Mr. Kettrick a written list of many of the incidents of harassment that had been inflicted upon him in the fall of 2003. Thi s included a detailed list of the nam es he was called on a regular basis—including “gay,” “fairy,” “fag,” “queer,” “f aggot,” and “fudgepacker”—and a report of the physical harassment he suffered due to his sexual orientation and sex. Mr. Kettrick
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photocopied this list. B obbi also told Mr. Kettrick that she had been reporting harassm ent of Charlie to teachers and other School District employees since Charlie was in kind ergarten, but that no one from the School District had taken any meaningful action to help her son. After years of feeling helple ss, Bobbi hoped that Mr. Kettrick would heed her pleas and intervene on Charlie’s behalf.
54. To Bobbi’s dism ay, Mr. Kettrick prove d even less helpful than those who preceded him. His response was unequivocal, unreas onable, and discriminatory. Mr. Kettrick did not, for exam ple, propose any reasonable measur es to address the hara ssment. Instead, he treated Charlie as th e problem—suggesting at one point that Charlie be placed alone in a classroom, every school day for the entire day, to be taught only basic subjects. Mr. Kettrick only dropped this proposal when Bobbi pointed out that, even assum ing it were feasible and otherwise acceptable, it would be insufficient to remedy the harassment when Charlie was on his way to and from the isolated classroom.
55. Mr. Kettrick also told Charlie and his parents that Charlie needed to “tone it down” if he wanted to avoid antigay and sexist harassment. This response discriminated against Charlie based on his sexual orientation, sex, gender, and gender expression.
56. Mr. Kettrick did not offer to investigate the antigay or sexist harassm ent against Charlie and, upon inform ation and belief, Mr. Ke ttrick did not investigate it. Nor did Mr. Kettrick offer measures to increase or alter the monitoring of student behavior. Mr. Kettrick also told Charlie and his parents, without engaging in any investigation, th at he did not believe Charlie’s report that teachers regularly failed to respond to antigay slurs.
57. Mr. Kettrick also a ttempted to m inimize the significance of the abuse and harassment Charlie reported. At a m eeting with Charlie and his parents, for exam ple, Mr.
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Kettrick stated that the students wh o frequently called Charlie “faggot” were not necessarily

being discriminatory. Mr. Kettrick also expressed the view that antigay harassment was nothing

like racial harassm ent, and indicated that th e school need not address the two kinds of

harassment similarly.

58. Mr. Kettrick also rejected out of hand reasonable solutions and remedies proposed

by Charlie and his parents, including the developm ent of a seminar or workshop to train teachers

on the issue of antigay harassm ent. Mr. Kettrick also refused to provide Charlie a m entor or

counselor with whom to regularly discuss issues of harassment, how to handle such interactions

with his peers and teachers, an d his own personal concerns a nd fears about the hostile school

environment.

59. As described further below, Mr. Kettrick also unlawfully refused to allow the

creation of a gay-straight allian ce at Indian River High as a m eans to enhance support, toleranc e

and understanding within the school comm unity. He rejected the proposal despite actual

knowledge of the severe and pervasive nature of harassment of Indian River High students based

on sexual orientation and sex. Instead, Mr. Kettrick further demonstrated his own stereotypes by

telling Charlie to join the stude nt drama club if he needed a s upportive environment, despite the

fact that Charlie had not

expressed, and did not have,

an interest in dr ama.

Charlie Withdraws from Indian River High School

60. Finally, after a series of unsuccessful meetings with Mr. Kettrick in January 2004,

Mr. Kettrick told Charlie and his p arents that he could not g uarantee Charlie’s safety at Ind ian

River High. Bobbi inf ormed Mr. Kettrick in response th at, if that w as the case, in order to

protect her son, she had no choice but to rem ove Charlie from school. Mr. Kettrick supported

removing Charlie from school, and Charlie wit hdrew from Indian River High that term .

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Motivated by the s ame concerns, Gregg likewis e withdrew from Indian River High in early 2004.
61. When Charlie and Gregg withdrew from Indian River High School, Mr. Kettrick had actual knowledge that their departure was the direct result of the severe, pervasive, and offensive harassment and discrimination based on sexual orientation and sex that they faced at Indian River High at the hands of students and School District employees and adm inistrators, including Mr. Kettrick himself.
62. Frustrated by his inferior educational opportunities outside school and feeling that he had no other options, Charlie attem pted to re turn to Ind ian River High the f ollowing fall, where he was placed a gain in the ninth grad e. Still fearf ul and trau matized from years of mistreatment, however, he was unable to integrat e and f unction in the school environm ent. Indeed, school policies with respect to hara ssment had not changed, and school e mployees continued to provide him no support in coping w ith the dangerous environm ent. He left after approximately three weeks.
63. Bobbi subsequently communicated w ith the School District assistant superintendent regarding Charlie’s hom e schooling. A s the assistant superintendent also forwarded all written corresponde nce with Bobbi to the School District superintendent, the superintendent also had actual knowledge of Charlie’s situation. As a result of Charlie’s and his mother’s efforts, Charlie later earned his GED.
64. Upon information and belief, even after two of his students were forced to drop out of Indian River High, Mr. Kettrick failed to take any appropriate or reasonable measure—as principal or later as School Dist rict superintendent—to investigate or remedy the hostile antigay and sexist environment at Indian River High and in the School District. Nor did he take any step
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to stop the dangerous harassm ent of students based on sexual orientation or sex, harassment that Mr. Kettrick himself understood to threaten the safety of Charlie, Gregg, and students like them.
65. Moreover, the School District has known a bout the problem of antigay and sexist harassment since at least 1994. T hat year, a survey of students in Jefferson County and neighboring areas found that sexual harassm ent and antigay nam e calling were a common problem at local schools. A 1996 article in the Watertown Daily Tim es referred to this survey in noting that “lezzie” was a “common jibe” for females who did not conform to sexist stereotypes. The article quoted Mr. Kettrick as acknowledging the su rvey and its releva nce to the School District. Mr. Kettrick also was quot ed in the article as claiming th at he was working to educat e students on sexual harassment.
66. And yet, despite th ese public statements and the later withdrawal of at least two students due to antigay and sexist harassm ent, Mr. Kettrick has publicly refused to acknowledge that a p roblem with harassm ent ever ex isted. When questioned in 20 06 concerning Charlie’s withdrawal from Indian River High, Mr. Kettr ick told th e Watertown Daily Tim es that “[ t]he atmosphere of harassment that they say exists simply does not.” Indian River High Repeatedly Denies Permission to Form a Gay-Straight-Alliance
67. Distraught by the hostile antigay environment at Indian River High School, during Charlie’s first year there, Gregg approached Mr. Kettrick and aske d permission to found a student gay-straight alliance (GSA) as an offi cially recognized extr acurricular student group. Charlie, who also supported the alliance, was ea ger to join the group if Mr. Kettrick approved Gregg’s request.
68. The purpose of the group was to educate the school community about the importance of tolerance, inclusion, and respect—regardless of sexual orientation, gender identity, and gender expression, and to brin g attention to the harm ful consequences of discrim inatory
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conduct. The group, which was to be open to all students, also sought to provide gay, lesbian, bisexual, and transgender students and their alli es a supportive outlet, and to work with other students to make the school a safer and more inclusive place for students who were, or who were perceived to be, gay, lesbian, bisexual, or transgender.
69. Mr. Kettrick dismissed Gregg’s request out of hand, despite the fact that, as stated on the School District’s website, the Board of Education specifica lly recognizes extracurricular activities to be “an i mportant part of the school . . . [and] supports an extr acurricular program that provides a wide variety of opportunities for the students in our school.”
70. In fact, when it comes to other student groups with various purposes and interests, Indian River High has extended its full support. Upon inform ation and belief, student groups receiving official approval and recognition at the High School have included, at times relevant to this suit, the Key Club, Multi-Cultural Club, Sk i Club, Stage Crew, Stud ent Council, Students Against Driving Drunk, a religious student club, and Yearbook. Th ese clubs have been, at all relevant times, “noncurricular” for purposes of the EAA, 20 U.S.C. § 4071 et seq.
71. On information and belief, all of the above student groups received perm ission from Indian River High’s principal before they were recognized as official student groups, and all have been allowed to meet on school premises during noninstructional time.
72. On information and belief, official st udent group status c onfers a num ber of benefits, including but not lim ited to the righ t: (a) to be listed in the Handbook and on the School District and/or Indian Ri ver High website as an approved ex tracurricular club; (b) to use Indian River High’s public address system; (c) to meet on Indian River High property; (d) to post club-related information at Indian River High; (e) to use Indian River High equipm ent and resources; and (f) to be photographed and listed in the Indian River High yearbook.
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73. When Gregg informed Mr. Kettrick that the Equal Access Act protected his right to form the GSA, Mr. Kettrick accused Gregg of making threats. Mr. Kettrick continued to refuse to allow Gregg to form the GSA, to meet at school, or otherwise have official recognition.
74. Charlie and Gregg together m ade a second attempt to found a GSA as an officially recognized student group at the beginni ng of Charlie’s second year at the high school. The purposes of the GSA were substantially sim ilar in all m aterial respects to the alliance proposed to Kettrick the previous school year . And as he had done when Charlie was a freshman, Mr. Kettrick again rebuffed their request.
75. The refusal to allow or recognize a student GSA as alleged herein greatly hindered Charlie’s expression, and contributed directly to other harm s to Charlie alleged in this Complaint, including but not limited to extreme emotional distress.
76. A.E.P. is Charlie’s fifteen-year-old sister and entered Indian River High in the fall of 2007. She is currently a sopho more at the school, where she re gularly witnesses the use of antigay slurs like “faggot,” including during class time. On one occasio n, a student commented to her and other classmates that “all fags deserve to die.” Cognizant of the treatment her brother endured at Indian River High, a nd recognizing that antigay harassment remains a problem years after Charlie and Gregg were d riven from the school, A.E.P. recently sought to form the GSA that school officials had denied to her older brother.
77. In October 2008, A.E.P. sought perm ission from the current Indian River High School assistant principal, Mr. Ja y Brown, to form an officially recognized GSA. The purposes of the allian ce were—and remain—substantially similar in all m aterial respects to the allian ce proposed in earlier years by Charlie and Gregg.
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78. Particularly because of what happened to her brother, A. E.P. is determ ined to create an inclusive organization to help teach others in the school community that gay people are entitled to e qual respect. Other students have indicated their intent to join the GSA once it is formed.
79. Following Mr. Kettrick’s footsteps, Mr . Brown rejected A.E.P.’s request, unreasonably proposing that a GSA might be more appropriate in about two years—when A.E.P. will be on the verge of graduating high school.
80. Dissatisfied with that response, in Nove mber 2008, A.E.P. sought permission to form the GSA directly from the current Indian River High principal, Mr. Troy Decker. Like Mr. Kettrick and Mr. Brown before him, Mr. Decker rejected the proposal despite having actual knowledge of Indian River High’s hostile antigay environment. Indeed, Mr. Decker effectively acknowledged to A.E.P. that gay and lesbian stu dents may face difficulties at school, but he told A.E.P. that they should go to the guidance office to discuss their problems and could not form a GSA. Mr. Decker further admitted that the basis for his denial was content-based and viewpointbased discrimination. Specifically, Mr. Decker claimed the GSA woul d upset parents and students. T o date, Mr. Decker and Indian Ri ver High have continuously refused to approve A.E.P.’s request to be allowed to form a GSA.
81. The refusal to allow or recognize a stude nt GSA as alleged herein has hindered A.E.P.’s expression and that of other students.
82. Defendants, including but not limited to Mr. Kettrick, Mr. Decker and Mr. Brown, exacerbated and contin ue to exacerbate th e antigay and sex ist hostile environment at the High School by repeatedly refusing to allow or recogni ze a GSA. The repeated refusals reinforce the
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message that lesbian, gay, bisexual and transgender students and thei r allies are no t entitled to equal respect and inclusion within the school community. School Officials’ Failure to Amend Written Policies
83. Over six years have p assed since the st ate legislature expr essly incorporated sexual orientation into antidiscrim ination provisions governing schools. See New York Civil Rights Law § 40-c; New York Human Rights Law §§ 291, 296(4). Six years have also passed since the state began requiring schools to collect detailed inform ation about harassm ent at school, including harassm ent based on sexual orientation. See 8 N.Y.C.R.R. § 100.2(gg)(1). Despite these changes to the law, and despite the withdra wal of at least two stud ents due to antigay and sexist harassm ent, the School District has not am ended its written p olicies and handbooks to prohibit discrimination based on sexual orientation.
84. The School District’s Equal Opportuni ties Public Notice, which has been endorsed by the Board of Education and appear s in the Indian River High School Handbook on the School District website, states only that “students, parents, employees, and the general public that [the School District] . . . offers . . . e mployment and educational oppor tunities, . . . without regard to gender, race, color, national origin or handicap.”
85. An identical policy s tatement – again la cking mention of sexual orientation – appears in the School District’s handbook for athletes.
86. Upon information and belief, sim ilar statements and publications by the School District and Board during Charlie’s tenure as a st udent there likewise excluded any reference to sexual orientation.
87. The only reference to harassm ent based on sexual orientation in the Indian River High School Handbook currently availa ble on the District website ap pears in a sec tion entitled “Uniform Violent Incident Report System Regulation,” which contains a partial excerpt from the
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“Definitions” section of a state regulation governi ng school districts’ duty to annually report certain forms of m isconduct to the state. See 8 N.YC.C.R.R. § 100.2(gg)(1). Thus, while the School District appears to recogni ze in the Handbook that state law re quires district officials to record and report to the state certain forms of harassment at school, including harassment based on sexual orientation, th e very same Handbook fails to actually prohibit su ch harassment or to include sexual orientation in its equal opportunity statement for students.
88. Particularly in view of the withdraw al of at least two students from Indian River High due to antigay and sexist harassm ent, the District’s ongoing refusal to take even the simple measure of am ending its written antidiscrimination policies to include sexual orientation provides additional evidence of its deliberate indifference, if not outright hostility, to the rights of its students, including and especially its gay, lesbian and bisexual students. The School District Perpetuated an Antigay and Sexist Environment that Seriously Damaged Plaintiffs
89. The specific incidents of discrim ination, harassment, and failu re to act alleged herein are m erely representative of the incid ents suffered by Ch arlie during his tenure in the Indian River School District. An exhaustive list would be too lengthy to detail in this Complaint.
90. At all relevant tim es, all Defendants were acting under color of state law . At all relevant times, the Defendants who are em ployees of the Board of Education and/or of the School District were acting within the course and scope of their employment.
91. The discrimination and harassment based on sexual orientation and sex directed at Charlie described herein took place during school hours and on school grounds at the Prim ary Schools, Middle School and Indian River High, as well as on bus rides to and from these schools. Discrimination and harassment took place in classrooms, school hallways, locker rooms, and in
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other settings over which the School District an d its officials and em ployees had disciplinary authority over the harassers.
92. Upon information and belief, School Dist rict officials and e mployees at the Primary Schools, Middle School, and Indian River High – including but not lim ited to Defendants Mr. Kettrick, Mr. D ecker, Mr. Davis, Ms. Gray, Ms. Turner and Ms. Henderson – deliberately, purposefully, and intentionally failed to un dertake reasonable or appropriate investigative, disciplinary, preventive, rem edial, or corrective m easures in response to the antigay and sexist harassment alleged herein, despite the ability and authority to do so on behalf of the School District, and despite actual knowledge that the harassment was occurring to Charlie and had been occurring to other st udents as early as 1994. This fa ilure to act departed from the procedures of the Prim ary Schools, Middle School, Indian River High, and the School District for dealing with other forms of harassment, violence, and peer abuse.
93. When he was principal of Indian River High, Defendant Mr. Kettrick had actual knowledge that the educational environm ent was hostile an d dangerous for students who were gay or perceived to be gay as we ll as for students who did not conf orm, or were perceived not to conform, to sexist stereotypes. He was aware, for example, of the pervasive use of antigay slurs, threats, and acts of violence directed at gay students and gender-nonconforming students. Mr. Kettrick also had actual knowledge of the ongoing failures of Indian River High faculty and staff to respond to antigay and sexist harassm ent in an appropriate, reasonable, or nondiscrim inatory manner.
94. Defendants acted with deliberate indiffere nce to Plain tiffs’ clearly es tablished rights and with the inten t to discriminate based on sexual orientation and sex. Defendants also
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acted with the intent to suppress and to discriminate agains t expression that was supportive of lesbian, gay, bisexual, and/or transgender people.
95. Defendants’ acts and om issions involving censorship, harassment and discrimination as alleged in this Complaint were and continue to be motivated by evil motive and intent. These acts and om issions involved a nd continue to involve reckless and callous indifference to the federally protected rights of students including Charlie and A.E.P.
96. The acts and omissions of Defendants not only failed to remedy, but also fostered and promoted, the harassment of Charlie by other students and by District employees.
97. Upon information and belief, the acts and om issions of censorship, harassm ent, and discrimination committed by School District em ployees alleged herein reflected, and were made pursuant to, the policies and practices of the School District and the Board of Education. These acts and omissions were sufficiently persistent, widespread, permanent, and well-settled so as to constitute a custom of the Sc hool District and Board of Education with the force of law. The discriminatory, harassing, a nd otherwise unlawful acts a nd omissions by School District employees were so manifest as to imply the acquiescence of senior policy-making officials.
98. Upon information and belief, neither the School District, the Board of Education, or any of the School District’s policym akers, officials, administrators, or other em ployees have ever provided, at any tim e relevant to this Co mplaint, adequate tr aining to a dministrators, faculty, or staff with respect to d iscrimination, bullying, or harassm ent based on sexual orientation or sex. This failure has occurred de spite actual knowledge by relevant policymakers, officials, administrators, and em ployees of the prevalence of antigay a nd sexist discrim ination and harassment by Sc hool District students and e mployees. The failure to provide adequate training is a direct and proxim ate cause of the School District employees’ discrimination against
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and harassment of Charlie and their failure to adequately address the discrim ination and harassment perpetrated against him by others.
99. Upon information and belief, at all tim es relevant to this suit, Defendants have had and enforced policies and procedures to pr event and remedy harassment, discrimination, and violence suffered by students who are, or who ar e perceived to be, heterosexual, as well as students who conform to, or are pe rceived to confor m to, sexist st ereotypes. School District officials and em ployees, including officials a nd employees at the P rimary Schools, Middle School, and Indian River High, also took investig atory, disciplinary, and other corrective action in response to the harassment of students similarly situated to Charlie when that harassm ent was not based on sexual orientation or perceived nonconformity to sexist stereotypes.
100. Upon information and belief, at all tim es relevant to this suit, Defendants have had and enforced policies and procedures to pr event and remedy harassment, discrimination, and violence directed at female students. School District officials and employees, including officials and employees at the Prim ary Schools, Middle School, and Indian River High, also took investigatory, disciplinary, and other corrective action in response to the ha rassment of fe male students who were otherwise similarly situated to Charlie.
101. Upon information and belief, at all tim es relevant to this suit, Defendants have had and enforced policies and procedures to provide support services to students who are victims of trauma or peer abuse at school, where t hose students are fe male, gender-conforming, and/or heterosexual. Defendants deliberately failed to provide such services on an equal basis to Charlie because of his sexual orientation and sex.
102. Defendants’ deliberate indifference, as well as th eir acts and omissions involving censorship, discrimination, and harassment as alleged herein, caused Charlie to suffer severe and
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extreme emotional distress and psychological damage, including but not limited to an inability to concentrate on his studies, depress ion, debilitating fear, despair, anger, humiliation, and anxiety. Furthermore, as a result of De fendants’ acts and om issions, Charlie lost substantial amounts of schooling and was deprived of a high school dipl oma. The lack of a high school diplom a has had a serious adverse impact on C harlie’s academic, professional, and fina ncial future. Absent Defendants’ acts and o missions alleged herein , Charlie would have received a h igh school diploma from Indian River High. Defendants’ unl awful and discriminatory acts and om issions were the direct and proximate cause of the harms to Charlie herein alleged.
103. Upon information and belief, the decisions to refuse to allow or recognize a student GSA as described herein were m ade pursuant to a policy, p ractice, and custom of t he School District and the Board of Education.
104. The harassment of students based on sexua l orientation and/or sex by a public school district or its officials or employees bears no substantial or rational rela tionship to any compelling, important or legitimate government interest.
105. Acts or omissions by school districts, thei r officials and/or em ployees that foster, encourage, condone or allow harassm ent based on sexual orientation and/or sex bear no substantial or rationa l relationship to any compelling, im portant or legitim ate government interest.
106. The refusal to allow A.E.P. to f orm a GSA as alleged he rein has ca used and continues to cause irreparable harm to A.E.P., for which A.E.P. has no adequate remedy at law.
107. Allowing A.E.P. to for m a student GSA w ith official recognition by I ndian River High and the School District will serve the public interest.
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FIRST CLAIM FOR RELIEF Equal Access Act, 20 U.S.C. § 4071 et seq.
Violations of the Equal Access Act (Brought by Charles Pratt Pursuant to 20 U.S.C. § 4071 et seq. and 42 U.S.C. § 1983 Against the
School District, the Board of Education, and Mr. Kettrick in his official and individual capacities)
108. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint.
109. The above-described acts and omissions of the School District, the Board of Education, and Mr. Kettrick violated Charles’s clearly established rights under the Equal A ccess Act.
110. Upon information and belief, Indian Rive r Central School District and Indian River High School have received federal financial assistance at all times relevant to this Complaint.
111. At all relevant times, Indian River High operated a limited open forum pursuant to the Equal Access Act, 20 U.S.C. § 4071 et seq., in that it perm itted noncurriculum-related student groups to m eet on school prem ises during noninstructional ti me and provided these groups with certain privileges and resources.
112. Because Indian River High m aintains a limited open forum, Indian River High may not deny equal access or a fair opportunity to , or discrim inate against, any students who seek to con duct a m eeting within the lim ited open forum on the basis of religious, political, philosophical, or other content or viewpoint of the speech at such meeting.
113. These Defendants violated the Equal Access Act by denying Charles equal access to Indian River High’s lim ited open forum on the basis of imperm issible content and viewpoint based discrimination.
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114. These Defendants’ violations of Charles’s rights under the Equal Access Act are the actual, direct, and proximate cause of injuries suffered by Charles as alleged herein.
115. Accordingly, Plaintiff Charles Pratt r equests judgment in his favor ag ainst the School District, the Board of Education, and Mr. Kettrick as set forth in the Prayer for Relief.
SECOND CLAIM FOR RELIEF Equal Access Act, 20 U.S.C. § 4071 et seq.
Violations of the Equal Access Act (Brought by A.E.P. pursuant to 20 U.S.C. § 4071 et seq. and 42 U.S.C. § 1983 Against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and
individual capacities, and Mr. Brown in his individual capacity) 116. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint. 117. The above-described acts and om issions of the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown violated and continue to violate A.E.P.’s rights under the Equal Access Act. 118. Upon information and belief, Indian Rive r Central School District and Indian River High School have received federal financial assistance at all times relevant to this Complaint. 119. Indian River High has created and o perated a limited open forum pursuant to the Equal Access Act, 20 U.S.C. § 4071 et seq., in that it perm its noncurriculum-related student groups to meet on school prem ises during noninstructional time and provides these groups with certain privileges and resources. 120. Because Indian River High m aintains a limited open forum, Indian River High may not deny equal access or a fair opportunity to , or discrim inate against, any students who
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seek to con duct a m eeting within the lim ited open forum on the basis of religious, political, philosophical, or other content or viewpoint of the speech at such meeting.
121. These Defendants vio lated and co ntinue to v iolate the Equal Access Act by discriminating against A.E.P. and denying her e qual access to Indian River High’s lim ited open forum on the basis of impermissible content and viewpoint based discrimination.
122. These Defendants’ ongoing violati ons of A.E.P.’s rights under the Equal Access Act are the actual, direct, and proximate cause of injuries suffered by A.E.P. as alleged herein.
123. Accordingly, Plaintiff A.E.P. requests judgment in her favor against the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown as set forth in the Prayer for Relief.
THIRD CLAIM FOR RELIEF U.S. Constitution Amendment I Denial of Free Speech and Free Association (Brought by Charles Pratt Pursuant to 42 U.S.C. § 1983 Against the School District, the Board of Education, and Mr. Kettrick in his official and individual capacities) 124. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint. 125. The above-described acts and omi ssions of the School District, the Board of Education, and Mr. Kettrick violated Charle s’s rights under t he First Amendment to the United States Constitution as applied to the states by the Fourteenth Amendment, in that: a. These Defendants abrid ged Charles’s freedom of speech and freedom of association;
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b. These Defendants discriminated against Charles based on the content and viewpoint of his expression and expressive association; and
c. These Defendants created and m aintained a lim ited public forum for student expression and association, from which they excluded Charles in a manner that constitutes im permissible content-based and viewpoint-base d discrimination. These Defendants’ restrictions on e xpression and association were unreasonable in li ght of the purposes served by the forum.
126. Content-discriminatory and viewpoint-discriminatory restrictions on s peech by a school district or its offi cials or e mployees against a student based on hi s or her expression o f support for lesbian, gay, bisexual, an d/or transgender individuals bears no substa ntial or rationa l relationship to any compelling, important, or legitimate government interest.
127. These Defendants’ violations of the First Am endment are the actual, direct and proximate cause of injuries suffered by Charles as alleged herein.
128. Accordingly, Plaintiff Charles Pratt reque sts judgment in his favor against th e School District, the Board of Education, and Mr. Kettrick as set forth in the Prayer for Relief.
FOURTH CLAIM FOR RELIEF U.S. Constitution Amendment I Denial of Free Speech and Free Association (Brought by A.E.P. Pursuant to 42 U.S.C. § 1983 Against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities, and Mr. Brown in his individual capacity) 129. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint.
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130. The above-described acts and omi ssions of the School District, the Board of Education, Mr. Kettrick, Mr. Dec ker, and Mr. Br own violated A.E.P.’s rights unde r the First Amendment to the United States Constitution as applied to th e states by the Fourteenth Amendment, in that:
a. These Defendants have abridged and ar e continuing to abridge A.E.P.’s freedom of speech and freedom of association;
b. These Defendants have discrim inated and are continuing to discrim inate against A.E.P. based on the content and viewpoint of her expression and expressive association; and
c. These Defendants created and m aintained a lim ited public forum for student expression and association, fr om which they have excluded and continue to exclude A.E.P. in a m anner that constitute s impermissible content-based and viewpoint-bas ed discrimination. Defendants’ restrictions on expression and association are unreasonable in light of the purposes served by the forum.
131. Content-discriminatory and viewpoint-discriminatory restrictions on spe ech by a school district or its offi cials or e mployees against a student based on hi s or her expression o f support for lesbian, gay, bisexual, an d/or transgender individuals bears no substa ntial or rationa l relationship to any compelling, important, or legitimate government interest.
132. These Defendants’ violations of the First Am endment are the actual, direct and proximate cause of injuries suffered by A.E.P. as alleged herein.
133. The public interest will be vindicated by pr otecting student expression and association in accordance with the First Amendment.
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134. Accordingly, Plaintiff A.E.P. requests judgment in her favor against the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown as set forth in the Prayer for Relief.
FIFTH CLAIM FOR RELIEF U.S. Constitution Amendment XIV Denial of Equal Protection on the Basis of Sexual Orientation (Brought by Charles Pratt Pursuant to 42 U.S.C. § 1983 Against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities, and Mr. Davis, Ms. Turner, and Ms. Gray in their individual capacities) 135. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint. 136. The above-described acts and omi ssions of the School District, the Board of Education, Mr. Kettrick, Mr. Dec ker, Mr. Davis , Ms. Turner, and Ms. Gray violate d Charles’s clearly established rights under the Equal Protecti on Clause of the Fourteenth Amendment to the United States Constitution in that: a. These Defendants intentionally discriminated against Charles on the basis of sexual orientation and/or because of Charles’s membership in a class of people defined as lesbian, gay and/or bisexual; b. Without even a rational basis or legi timate government interest, and based on invidious anim us, these Defendant s intentionally treated Charles differently than other sim ilarly situated students on the basis of sexual orientation. 137. These Defendants’ violations of Charles’s rights under the Fourteenth Ame ndment are the actual, direct, and proximate cause of injuries suffered by Charles as alleged herein.
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138. Accordingly, Plaintiff Charles Pratt reque sts judgment in his favor against th e School District, the Board of Education, Mr. Kett rick, Mr. Decker, Mr. D avis, Ms. Turner, and Ms. Gray as set forth in the Prayer for Relief.
SIXTH CLAIM FOR RELIEF U.S. Constitution Amendment XIV Denial of Equal Protection on the Basis of Sex (Brought by Charles Pratt Pursuant to 42 U.S.C. § 1983 Against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities, and Mr. Davis, Ms. Turner, and Ms. Gray in their individual capacities) 139. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint. 140. The above-described acts and omi ssions of the School District, the Board of Education, Mr. Kettrick, Mr. Dec ker, Mr. Davis , Ms. Turner, and Ms. Gray violate d Charles’s clearly established rights under the Equal Protecti on Clause of the Fourteenth Amendment to the United States Constitution in that: a. These Defendants intentionally discriminated against Charles (i) o n the basis of sex (ii) because of Charles’s m embership in a cl ass of people defined as males, (iii) because of Charles’s membership in a class of people defined as t hose who do not conform to sexist stereotypes, and/or (iv) because of Charles’s mem bership in a class of people defi ned as those males who do not conform to sexist stereotypes; b. Without even a rational basis or legi timate government interest, and based on invidious anim us, these Defendant s intentionally treated Charles differently than other similarly situated students on the basis of sex.
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141. These Defendants’ violations of Charles’s rights under the Fourteenth Ame ndment are the actual, direct, and proximate cause of injuries suffered by Charles as alleged herein.
142. Accordingly, Plaintiff Charles Pratt reque sts judgment in his favor against th e School District, the Board of Education, Mr. Kett rick, Mr. Decker, Mr. D avis, Ms. Turner, and Ms. Gray as set forth in the Prayer for Relief.
SEVENTH CLAIM FOR RELIEF Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.
Discrimination Based on Sex (Brought by Charles Pratt Pursuant to 20 U.S.C. § 1681 et seq.
Against the School District and the Board of Education) 143. Plaintiffs incorporate by reference and reallege paragraphs 1 to 1 07 of this Complaint. 144. Upon information and belief, the School District and the Board of Education receive, and have received at all relevant times, federal financial assistance. 145. The above-described acts and om issions by the School District and the Board of Education, including but not lim ited to certain acts and om issions carried out by and through School District officials and employees, viol ated Charles’s rights under Title IX by discriminating against him on the basis of sex. 146. School District officials including Mr. James Kettrick had actual notice that harassment based on sex was so severe, pervasive, and objectively offensive that it crea ted a hostile climate based on sex that deprived C harles of access to th e educational programs, activities, opportunities, and other benefits of the School Di strict, including but not lim ited to a high school education and diploma.
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147. The School District, its policym akers, officials, and other em ployees exhibited deliberate indifference to the har assment of Ch arles based on sex in violation o f Title IX. Through their unlawful deliberate indifference, the School District and the Board of Education caused Charles to be subjected to the sex discrimination and sexist harassment herein alleged.
148. The School District’s and the Board of Education’s violations of Title IX were the actual, direct and proximate cause of injuries suffered by Plaintiffs as alleged herein.
149. Accordingly, Plaintiff Charles Pratt reque sts judgment in his favor against th e School District and the Board of Education as set forth in the Prayer for Relief.
EIGHTH CLAIM FOR RELIEF New York Constitution Article 1 § 8
Denial of Free Speech (Brought by A.E.P. Pursuant to New York law Against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities,
and Mr. Brown in his individual capacity) 150. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint. 151. The above-described acts and omi ssions of the School District, the Board of Education, Mr. Kettrick, Mr. Decke r, and Mr . Brown violated and c ontinue to vi olate A.E.P.’s rights under the New York Constitution, Article I § 8, in that:
a. These Defendants have abridged and ar e continuing to abridge A.E.P.’s freedom of speech and freedom of association;
b. These Defendants have discrim inated and are continuing to discrim inate against A.E.P. based on the content and viewpoint of her expression and expressive association; and
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c. These Defendants created and m aintained a lim ited public forum for student expression and association, fr om which they have excluded and continue to exclude A.E.P. in a m anner that constitute s impermissible content-based and viewpoint-based discrimination. These Defendants’ restrictions on expression and association are unreasonable in light of the purposes served by the forum.
152. Content-discriminatory and viewpoint-discriminatory restrictions on spe ech by a school district or its offi cials or e mployees against a student based on hi s or her expression o f support for lesbian, gay, bisexual, an d/or transgender individuals bears no substa ntial or rationa l relationship to any compelling, important, or legitimate government interest.
153. These Defendants’ violations of A.E.P.’s rights unde r the New York Constitution are the actual, direct, and proximate cause of injuries suffered by A.E.P. as alleged herein.
154. The public i nterest and the rights of ot her students, including stude nts similarly situated to A.E.P., will be served and vindi cated by a judgment prot ecting A.E.P.’s student expression and association in accordance with the New York Constitution.
155. Accordingly, Plaintiff A.E.P. requests judgment in her favor against the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown in the for m of equitable relief as set forth in the Prayer for Relief.
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NINTH CLAIM FOR RELIEF New York Human Rights Law, New York Executive Law § 296(6)
Discrimination on the Basis of Sexual Orientation (Brought by Charles Pratt Pursuant to the New York Human Rights Law Against Ms. Turner,
Ms. Gray, Ms. Henderson, and Mr. Davis in their individual capacities) 156. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint. 157. The above-described acts and omissions of Defendants denied Charles the use of School District facilities and permitted harassment against him based on sexual orientation, in violation of New York Human Rights Law § 296(4). Acting recklessly and with the intent to engage in wrongful conduct, Ms. Turner, Ms. Gray, Ms. Henderson and Mr. Davis aided, abetted, incited, compelled and/or coerced these acts and omissions, in violation of New York Human Rights Law § 296(6). 158. The violations of Charles’s rights under the New York Human Rights Law by Ms. Turner, Ms. Gray, Ms . Henderson, and Mr. Da vis are the actual, direct, and proxi mate cause of injuries suffered by Charles as alleged herein. 159. By this action, Charles seeks to vindi cate the public inte rest by enforcing fundamental state civil rights protections for students, including students who face discrimination and harassment at school based on sexual orientation. 160. Accordingly, Plaintiff Charles Pratt re quests judgment in his favor against Defendants Ms. Turner, Ms. Gray, Ms. Henderson, and Mr. Davis, as set forth in the Prayer for Relief.
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TENTH CLAIM FOR RELIEF New York Human Rights Law, New York Executive Law § 296(6)
Discrimination on the Basis of Sex (Brought by Charles Pratt Pursuant to the New York Human Rights Law Against Ms. Turner,
Ms. Gray, Ms. Henderson, and Mr. Davis in their individual capacities) 161. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint. 162. The above-described act s and omissi ons of Defendants denied Charles the use of School District facilities and permitted harassment against him based on se x, in violation of New York Human Rights La w § 296(4). Acting recklessly and wi th the intent to engage i n wrongful conduct, Ms. Turner, Ms. Gray, Ms. Henderson and Mr. Davis aided, abetted, incited, compelled and/or coerced these acts and omissions, in violation of New York Human Rights Law § 296(6). 163. The violations of Charles’s rights under the New York Human Rights Law by Ms. Turner, Ms. Gray, Ms . Henderson, and Mr. Da vis are the actual, direct, and proxi mate cause of injuries suffered by Charles as alleged herein. 164. By this action, Charles seeks to vindi cate the public inte rest by enforcing fundamental state civil rights protections for students, including students who face discrimination and harassment at school based on sex. 165. Accordingly, Plaintiff Charles Pratt re quests judgment in his favor against Defendants Ms. Turner, Ms. Grey, Ms. Henderson, and Mr. Davis, as set forth in the Prayer for Relief.
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ELEVENTH CLAIM FOR RELIEF New York Civil Rights Law §§ 40-c and 40-d Discrimination Based on Sexual Orientation (Brought by Charles Pratt Pursuant to the New York Civil Rights Law Against Ms. Turner, Ms. Grey, Ms. Henderson, and Mr. Davis in their individual capacities) 166. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint. 167. The above-described acts and omissions of Defendants Ms. Turner, Ms. Grey, Ms. Henderson, and Mr. Da vis subjected Charles to discrimination based on sexual orie ntation in the exercise of his civil rights under New York law. 168. The acts and om issions of Defendants Ms. Turner, Ms. Grey, Ms. He nderson, and Mr. Davis also aided and incited unlawful discrimination against Charles by others based on sexual orientation in the exercise of his civil rights und er New York law. The acts and o missions were undertaken recklessly and with the intent to engage in wrongful conduct. 169. The violations of Charle s’s rights under the Ne w York Civil Rights Law are the actual, direct, and proximate cause of injuries suffered by Charles as alleged herein. 170. Plaintiffs have com plied with the p rocedural requirements of New Yo rk Civil Rights Law § 40-d by serving notice upon the st ate attorney general at or before the commencement of the action. 171. By this action, Charles seeks to vindi cate the public inte rest by enforcing fundamental state civil rights protections for students, including students who face discrimination and harassment at school based on sexual orientation.
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172. Accordingly, Plaintiff Charles Pratt re quests judgment in his favor against Defendants Ms. Turner, Ms. Gray, Ms. Henderson, and Mr. Davis, as set forth in the Prayer for Relief.
TWELFTH CLAIM FOR RELIEF New York Civil Rights Law §§ 40-c and 40-d
Discrimination Based on Sex (Brought by Charles Pratt Pursuant to the New York Civil Rights Law against Ms. Turner, Ms.
Grey, Ms. Henderson, and Mr. Davis in their individual capacities) 173. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint. 174. The above-described acts and omissions of Defendants Ms. Turner, Ms. Grey, Ms. Henderson, and Mr. Davis subjected Charles to di scrimination based on s ex in the exercise of hi s civil rights under New York law. 175. The acts and om issions of Defendants Ms. Turner, Ms. Grey, Ms. He nderson, and Mr. Davis also aided and incited unlawful discrimination against Charles by others based on sex in the exercise of his ci vil rights unde r New Yor k law. The acts and omissions were undertaken recklessly and with the intent to engage in wrongful conduct. 176. The violations of Charle s’s rights under the Ne w York Civil Rights Law are the actual, direct, and proximate cause of injuries suffered by Charles as alleged herein. 177. Plaintiffs have com plied with the p rocedural requirements of New Yo rk Civil Rights Law § 40-d by serving notice upon the st ate attorney general at or before the commencement of the action.
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178. By this action, Charles seeks to vindi cate the public inte rest by enforcing fundamental state civil rights protections for st udents, including those who face di scrimination and harassment at school based on sex.
179. Accordingly, Plaintiff Charles Pratt re quests judgment in his favor against Defendants Ms. Turner, Ms. Grey, Ms. Henderson, and Mr. Davis, as set forth in the Prayer for Relief.
THIRTEENTH CLAIM FOR RELIEF New York Human Rights Law, New York Executive Law § 296 Discrimination on the Basis of Perceived Sexual Orientation and/or Antigay Animus (Brought by A.E.P. Pursuant to the New York Human Rights Law against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities,
and Mr. Brown in his individual capacity) 180. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint. 181. The above-described acts and om issions of the School District and the Board of Education violated and continue to violate A.E.P.’s right to use School District f acilities based on perceived sexual orientation and/or antigay animus, in violation of New York Human Rights Law § 296(4). Defendants Mr. Kettrick, Mr. Decker and Mr. Brown aided, abetted, incited, compelled and/or coerced these acts and omissions, in violation of New York Human Rights Law § 296(6). 182. Defendants’ past a nd ongoing viola tions of A.E.P.’s rights under t he New Yor k Human Rights Law are the actual, direct and proxi mate cause of injuri es suffered by A.E.P. as alleged herein. 183. By this action, A.E.P. seeks to vindi cate the public interest by preventing t he School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown from denying
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any other Sc hool District students the use of Sch ool District facilities based on percei ved sexual orientation and/or antigay animus.
184. Accordingly, Plaintiff A.E.P. requests judgment in her favor against the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown in the for m of equitable relief as set forth in the Prayer for Relief.
FOURTEENTH CLAIM FOR RELIEF New York Civil Rights Law § 40-c
Discrimination on the Basis of Perceived Sexual Orientation and/or Antigay Animus (Brought by A.E.P. Pursuant to the New York Civil Rights Law against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities, and
Mr. Brown in his individual capacity) 185. Plaintiffs incorporate by reference and reallege paragraphs 1 to 107 of this Complaint. 186. The above-described acts and omissions of the School District, the Board of Education, Mr. Kettrick, Mr. De cker, and Mr. Brow n violated and cont inue to viol ate A.E.P.’s civil rights based on perc eived sexual orientation and/or antigay animus, in violation of New York Civil Rights Law § 40-c. 187. Defendants’ past and ongoing violati ons of A.E.P.’s rights under New York Civil Rights Law are the actual, direct and proxi mate cause of i njuries suffered by A.E.P. as alleged herein. 188. By this action, A.E.P. seeks to vindi cate the public interest by preventing t he School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown from denying any other School District students the use of Scho ol District facilities based on sexual orientati on and/or antigay animus.
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Case 7:09-cv-00411-GTS-TWD Document 1 Filed 04/08/09 Page 47 of 50 189. Plaintiffs have com plied with the p rocedural requirements of New Yo rk Civil
Rights Law § 40-d by serving notice upon the st ate attorney general at or before the commencement of the action.
190. Accordingly, Plaintiff A.E.P. requests judgment in her favor against the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown in the for m of equitable relief as set forth in the Prayer for Relief.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs Charles P ratt and A. E.P. request judgm ent in their favor and pray for relief against Defendants the Indian River Central School D istrict, the Indian River Central School District Board of Educati on, Mr. Jam es Kettrick, Mr . Troy Decker, Mr. Jay Brown, Mr. John Davis, Ms. Am able Turner, Ms. Kenda Gray, and Ms. Patricia Henderson as follows: 1. For an order declaring the rights, oblig ations, and other lega l relations between Defendants and Plaintiff A.E.P.—na mely, that th e refusal by the School District, the Board of Education, Mr. Kettrick, Mr. De cker, and Mr. Brown to grant A.E.P. perm ission to form a recognized student gay-straight alliance at Indian River High Sc hool with rights and benefits equal to those afforded to other student organi zations at Indian River High School, violated and continues to violate A.E.P.’s rights under the federal Equal Access Act, 20 U.S.C. § 4071 et seq., the First Amendment to the United States Constitution as applied to the states by the Fourteenth Amendment, the New York Constitution, Articl e 1 § 8, New York Hum an Rights Law § 296, and New York Civil Rights Law § 40-c; 2. For a preliminary and permanent injunction restraining and enjoining the School District and the Board of Education, as well as Mr. Kettrick, Mr. Decker, Mr. Brown, and other School District or Board of Education directors, officers, agents, affiliates, subsidiaries, servants, employees, and all other persons or entities in activ e concert, privity, or participation with them, from (a) directly or indi rectly preventing A.E.P. from forming a student gay-straight alliance at Indian River High School, or (b) directly or i ndirectly denying to the student gay-straight alliance, or to A.E.P. as a stude nt founder, member, and/or leader of that alliance, full access to
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and use of all School District faci lities, benefits, rights, and privil eges on an equal basis to that

afforded to other students and student groups at Indian River High School;

3.

For an order granting Plaintiff Charles Pratt nominal and compensatory damages

against Defendants the S chool District, the Board of Education, a nd Mr. Kettrick for violations

of the Equal Access Act, 20 U.S.C. § 4071 et seq.; the First Amendment to the U.S. Constitution;

and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution;

4. For an order granting Plaintiff Charles Pratt nominal and compensatory damages

against Defendants Mr. Decker, Mr. Davis, Ms. Turner, and Ms. Gray for violations of the Equal

Protection Clause of the Fourteenth Amendment to the U.S. Constitution;

5. For an order granting Plaintiff Charles Pratt nominal and compensatory damages

and other appropriate relief ag ainst Defendants Mr. Davis, Ms. Turner, Ms. Gray, and Ms.

Henderson for violations of the New York Human Rights Law and New York Civil Rights Law;

6.

For an order granting Plaintiff Charles Pratt punitive damages against Defendant

Kettrick for violations of the Equal Access Act, 20 U.S.C. § 4071 et seq.; the First Amendment

to the U.S. Constitu tion; and the Eq ual Protection Clause of the Fourteenth Amendment to the

U.S. Constitution;

7.

For an order granting Plaintiff Charle s Pratt punitive damages against Defendants

Mr. Decker, Mr. Davis, Ms. Turner, and Ms. Gray for violations of the Equal Protection Clause

of the Fourteenth Amendment to the U.S. Constitution;

8. For an order granting Plaintiff Charles Pratt nominal, compensatory, and punitive

damages against Defendants the S chool District and the Board of Education for violations of

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.

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9. For an order granting Plaintiff A.E.P. nominal damages and other appropriate

relief against Defendants the School District, th e Board of Education, Mr . Kettrick, Mr. Decker,

and Mr. Brown for past and ongoing violation s of the Equal Access Act, 20 U.S.C. § 4071 et

seq.; the First Amendment to the U.S. Constituti on; and the New York Human Rights and Civil

Rights Laws.

10. For an order granting P laintiff A.E.P. punitive dam ages against Def endants Mr.

Kettrick, Mr. Decker, an d Mr. Brown for past a nd ongoing violations of the Equal Access Act,

20 U.S.C. § 4071 et seq.; and the First Amendment to the U.S. Constitution.

11.

For interest, where appropriate, on any damages awarded to any plaintiff;

12.

For attorneys’ fees and costs in curred in the p rosecution of this ac tion

pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws;

13.

For any other and further relief as the Court may deem just and proper.

Dated: April 8, 2009 New York, NY

s/ Michael Kavey
Michael Kavey, Bar Number 515452 Hayley Gorenberg, Bar Number 515453
Attorneys For Plaintiffs
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 120 Wall Street, Suite 1500 New York, NY 10005-3904 Telephone: (212) 809 - 8585 Facsimile: (212) 809 - 0055 E-mail: mkavey@lambdalegal.org

Sudwiti Chanda* Adam T. Humann*
Attorneys for Plaintiffs
KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, NY 10022-4611 Telephone: (212) 446 - 4800 Facsimile: (212) 446 - 4900 E-mail: schanda@kirkland.com
*Motion for Admission Pro Hac Vice Pending

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

CHARLES PATRICK PRATT and A.E.P. through her parents and next friends Bobbi Lynn Petranchuk and Todd Edward Petranchuk,
Plaintiffs,
- vs. -
INDIAN RIVER CENTRAL SCHOOL DISTRICT; INDIAN RIVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION; JAMES KETTRICK, Superintendent of Indian River Central School District, in his official and individual capacities; TROY DECKER, Principal of Indian River High School, in his official and individual capacities; and JAY BROWN, JOHN DAVIS, KENDA GRAY, AMABLE TURNER, PATRICIA HENDERSON, and BRIAN MOORE, in their individual capacities,
Defendants.

7:09-cv-411 (GTS/GHL) ECF Case
FIRST AMENDED COMPLAINT
JURY DEMAND

Charles Patrick Pratt and A.E.P., through he r parents and next friends Bobbi Lynn Petranchuk and Todd E dward Petranchuk, bring this civil rights action on behalf of them selves, as well as f or the benefit of similarly situated students, to remedy willful acts of unlawful and unconstitutional discrimination, harassment, and censorship by the Indian River Central School District (the “School District ”) and its governing body and curre nt and for mer policymakers, officials, and employees.
PRELIMINARY STATEMENT 1. Charles Patrick Pratt (“Charlie” or “Charles”) endured a decade of discrimination and harassment based on sexual orientation and se x as a student in the Indian River Central School District before he was forced to forsak e his public education to escape the escalating

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abuse. For Charlie, school was not a time to learn while making new friends – it was a course i n cruelty that grievously impaired his education, health, and well-being, and threatened his dignity and personal safety.
2. Beginning in Charlie’s earliest years in the School District, students subjected him to antigay and sexis t harassment, while school employees – ignoring multiple pleas from his parents – allowed the hostility to intensify. In middle school, the discrimination and harassment became a near daily occurren ce, as students att acked Charlie relentlessly and with i mpunity, hurling antigay and sexist slurs at him like “fa ggot,” “sissy,” “queer,” and “fudgepacker” – sometimes many times in a single school day and often in the presence of teachers. Students also physically intimidated and attacked Charlie in middle school, frequently shoving him in the hallways, knocking books from his hands, and threatening to “beat [his] ass.”
3. At Indian River High School (or “Indian River High”), the discrim inatory abuse further intensified. In additi on to the vicious nam e-calling, students repeatedly threatened Charlie with physical violence, vandalized his locker with antigay slurs, slammed him forcefully into walls and lockers, and hum iliated him by spitting on him, hurling food and spitballs at him , grabbing and pinching his butto cks, taunting him with offensive gestures, and knocking his belongings from his hands.
4. School District em ployees were aware of the ram pant antigay and sexist harassment on cam pus but deliberately refused to undertake even the most basic correctiv e or remedial measures, despite these employees’ clear authority and ability to do so. Instead, staff members at Indian Riv er High whose very job it was to m onitor and supervise student behavior in the caf eteria and h allways frequently joined in on the harassm ent, ridiculing Charlie with
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stereotypically effeminate gestures in front of other students, calling him “girl,” and telling h im he was “disgusting” and “shouldn’t be gay.”
5. Particularly egregious were the blat ant discriminatory acts and callous indifference of Mr. Jam es Kettrick, the Indian R iver High School pr incipal at the tim e. Rather than conduct investigations or im plement remedial measures in response to known acts of antigay and sexist harassment, Mr. Kettrick responded to the abuse by blaming the victim, telling Charlie, for example, to “tone it down” if he wa nted to avoid verbal and physical intim idation and mistreatment from other students.
6. Mr. Kettrick, whose responsibilities included ensuring the security and welfare of all students at Indian River High Sc hool, told Charlie’s parents that their son’s safety on ca mpus could not be guaranteed. When Cha rlie’s parents decided that, to protect their son from further physical and em otional harm, they had no option other than to withdraw Charlie from Indian River High, Mr. Kettrick did not propose or un dertake any appropriate action to improve the school climate or chan ge the con ditions that led to this drastic m easure. Instead, he to ld Charlie’s parents that he agreed with the decision.
7. Mr. Kettrick’s indifference and discrim ination extended far beyond Charlie. Despite Mr. Kettrick’s knowledge that antigay and sexist bully ing was seriously im pairing students’ health and edu cation, Mr. Kettrick refused to allow training of teachers to address the crisis, and he rejected proposals from Charlie a nd other students to be allowed to f orm a gaystraight alliance on campus. Even after Charlie and another gay student were forced to withdraw to escape discriminatory harassment, Mr. Kettrick failed to am end the school’s written policies to match state antiharassment law covering sexual orientation.
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8. Notwithstanding Mr. Kettrick’s discriminatory policies at Indian River High School and his gross indifference to the abuse Charlie suffered there, Mr. Kettrick was appointed Superintendent of the Indian River Central School District in 2006.
9. A.E.P. is Charlie’s you nger sister and recently com pleted her sophomore year at Indian River High School. After seeing first-hand the destructive effects of discriminatory abuse endured by her older brother, A.E.P. was determ ined to cr eate a safer, more supportive school environment for all students—regardless of sexua l orientation—in the hope that no other student would be forced to endure the sam e harassment that drove her older brother from Indian River High.
10. To this end, A.E.P. atte mpted last fall to form a gay-straight student alliance at Indian River High School. School administrators, however, thwart ed her attem pts to organize and advocate on behalf of m istreated students. Each time A.E.P. requested perm ission to form the student gay-straigh t alliance last fall, school officials categorically, and unlawfully, denied her request. The reason th ey gave was that th ey believed that other students and parents in the community would not approve of such a group.
11. Meanwhile, as described m ore fully here in, the long history of harassm ent of students based on sex and sexual or ientation has continued at Indi an River High, threatening the education, health, safety and we ll-being of students, and disrupt ing the school environm ent. School District officials and other employees have simply ignored the discrimination.
12. On April 8, 2009, A.E.P. and Charlie filed the original compla int in the instant case (the “Original Complaint”). Plaintiffs’ attorneys also issued a letter to the Scho ol District, its Board of Education, and Defendants Kettrick, Decker, and Brown, demanding that the School
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District immediately cease th e ongoing deprivation of A.E.P.’s right to form a gay-straight alliance.
13. In a letter to Plaintiffs’ counsel dated April 13, 2009, the School District indicated that a gay-straight alliance would be permitted to meet for the first time the following Monday— the first day after Indian River High’s spring vacation.
14. A.E.P. met with a faculty advisor and other students on Mo nday, April 20, 2009, to begin forming the GSA.
15. Plaintiffs’ counsel requested confirmation that the School District will ensure that the GSA and its re lated activities will be p ermitted on a per manent ongoing basis, and that the current and future existence and activities of the GSA will be perm itted on equal ter ms to those extended to other non-curriculum related student groups in the School District. To date, no such confirmation has been made.
16. Plaintiffs seek a declaratory judgm ent, permanent injunctive relief, and nominal, compensatory, and punitive dam ages to remedy violations of the federal Equal Access Act (the “EAA”), 20 U.S.C. § 4071 et seq., the Free Speech Clause of the First Amendment to the United States Constitution as applied to the sta tes by the Four teenth Amendment, Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq., the Equal Protection Clause of the Fourteen th Amendment to the Un ited States Constitution, the Free Speech Clause and the Free Association Clause of Article I § 8 of the New York State Constitution, section 296 of the New York Hum an Rights Law, and sections 40-c and 40-d of the New York Civil Rights Law. Plaintiffs bring th eir claims pursuant to 42 U.S.C. § 1983, Title IX, the EAA, and state law.
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17. Injunctive relief is necessary to protect the public interest and to stop and prevent

the deprivation of A.E.P.’s rights under the EAA, 20 U.S.C. § 4071 et seq., the First Amendment

to the United States Constitution, Article I, § 8 of the New York Constitution, New York Human

Rights Law § 296, and New York Civil Rights Law § 40-c.

JURISDICTION AND VENUE

18. This Court has jurisdiction over Plainti ffs’ claims pursuant to 28 U.S.C. §§ 1331

and 1343 because the matters in controversy arise under the Constitution and laws of the United

States. Jurisdiction is also proper over A.E.P.’s claim s under 28 U.S.C. §§ 2201-2202 because

she seeks a declaration of her civil rights. This Court has supplem ental jurisdiction over

Plaintiffs’ related state law claims under 29 U.S.C. § 1367(a) because those claims arise out of

the same case or controversy as Plaintiffs’ federal claims.

19. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part

of the events that gave rise to Plaintiffs’ claims took place within the Watertown Division of the

Northern District of New York.

PARTIES

Plaintiffs 20.

Plaintiff CHARLES PATRICK PRATT was a student at various schools in the

Indian River Central School Di strict in the County of Jefferson, New Yor k, from approximately

September 1993 through January 2004, and again for approximately three weeks in the fall of

2004. Charlie is a natural person, a current resident of Erie County, and a c itizen of the State of

New York. Charlie is a twenty- one-year-old gay male born in 1988; he was twenty years old a t

the time of the f iling of the Orig inal Complaint. As a child and te enager, Charlie did not

conform – and was perceived not to conform – to certain sexist stereotypes of “masculinity.”

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For example, certain aspects of Charlie’s exp ressive gestures and m anner of speaking were of a nature stereotypically associated with females.
21. Plaintiff A.E.P. has just com pleted her sophomore year at Indian River High School in the County of Jefferson, New York. She will be beginning her junior year in the fall of 2009. A.E.P. is a natural person, a resident of Jefferson County, and a citi zen of the State of New York. A.E.P. is a sixteen- year-old female and sues here by and through her next friends, parents, and guardians, Bobbi Ly nn Petranchuk (“Bobbi”) and Todd Edward Petranchuk (“Todd”). Defendants
22. Defendant INDIAN RIVER CE NTRAL SCHOOL DISTRICT, an education corporation and association existing pursuant to the New York Education Law, is a public school district predominantly in Jefferson County, New Yor k. The School District is a “person” within the meaning of 42 U.S.C. § 1983. Upon information and belief, the School District and each of its component schools are recipients of federal financial assistance. Th e School District is nonsectarian and exe mpt from taxation pursuant to § 408 of New York’s real property tax law. Theresa Primary School, Evans Mills Primary School (each a “Primary School” and together, the “Primary Schools”), Indian River Middle School (the “Middle School”), a nd Indian River High School are schools in the School Di strict. Indian River High Sc hool has also been known as the Indian River Senior High School and the Indian River Central High School.
23. Defendant INDIAN R IVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION (the “Board of Educ ation” or the “Board”) is a public education corporation governing the School District pursuant to the laws of New York State. The Board of Education is a “person” within the m eaning of 42 U.S.C. § 1983. Upon inform ation and belief, the Board receives federal financial assistance.
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24. Defendant JAMES KE TTRICK (“Mr. Kettrick ”), sued in both his official and individual capacities, is the current Superintende nt of the School District, a position he has held since 2006. From 1993 to 2006, Mr. Kettrick was the Principal of Indian River High, including at all relevant tim es during which Charlie was a st udent there. As Princi pal, Mr. Kettrick held final policymaking authority for th e School District with respect to the day-to-day enforcem ent of equal opportunity, antiharassm ent, and antibu llying policies at Indian River High. He also held final policymaking authority for the School Dist rict with respect to th e official approval of extracurricular student clubs and organizations at Indian River High. On information and belief, at all relevant tim es Charlie was a student at Indian River High, Mr. Kettrick’s approval was required for official recognition of a student extr acurricular organization or club. As Principal, Mr. Kettrick also had the ability and authority to take corrective action on behalf of t he School District to stop discrimination and harassment at Indian River High and to discipline perpetrators of such discrimination and harassment. Mr. Ke ttrick is a natural person and, upon infor mation and belief, resides in Jefferson County, New York.
25. Defendant TROY DECKER (“Mr. Decker ”), sued in both his official and individual capacities, is the cu rrent Principal of Indian River High. Mr. Decker has held that position at all relevant tim es during which A.E.P. has been a stude nt at Indian River High. Mr. Decker currently has—and has had at all relevant times during which A.E.P. has been a student at Indian R iver High—final policym aking authority for the School District with respect to the official approval of extracurricul ar student clubs and or ganizations at Indian River High. At all relevant times that A.E.P. has been a student at Indian River High, Mr . Decker’s approval has been required for official r ecognition of a student extracurricu lar organization or club. Mr. Decker was also an Assistan t Principal of Indi an River High when Charlie was enrolled there.
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Upon information belief, as Assistant Principal, Mr . Decker had the ability and authority to take corrective action on behalf of the School District to stop discrimination and harassment at Indian River High and to discipline perpetrators of such discrimination and harassment. Mr. Decker is a natural person and, upon information and belief, resides in Jefferson County, New York.
26. Defendant JAY BROWN (“Mr. Brown”), su ed in his individual capacity, is currently an employee of the District at Indian River High. Mr. Brown was an assistant Principal of Indian R iver High during A.E.P. ’s first and second years as a student there. As Assistan t Principal, Mr. Brown had the ab ility and au thority to tak e corrective action on behalf of the School District to stop discrim ination and harassm ent at Indian River High and to discipline perpetrators of such discrim ination and harassm ent. Mr. Brown is a natural person and, upon information and belief, resides in Jefferson County, New York.
27. Defendant JOHN DAVIS (“Mr. Davis”), su ed in his individual capacity, was an Assistant Principal of Indian River High whe n Charlie was a student there. As Assistan t Principal, Mr. Davis had the ability and auth ority to tak e corrective action on behalf of the School District to stop disc rimination and harassm ent at I ndian River High and discipline perpetrators of such discrim ination and harassm ent. Mr. D avis is a natural person and, upon information and belief, resides in Jefferson County, New York.
28. Defendant AMABLE TURNER (“ Ms. Turner”), sued in her individual capacity, has been an employee of the Scho ol District during all relevant tim es at which Charlie and A.E.P. have been students at I ndian River High. Ms. Turner’s primary job responsibilities have included, and still include, m onitoring student conduct at Indian River High School in the lunch room, study hall, and/or other loca tions on campus to ensure a safe environm ent for all students. At all relevant tim es, Ms. Turner has had the ab ility and authority to take cor rective action on
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behalf of the School District to stop discrimination and harassment among students occurring in school areas that she monitors and to discipline perpetrators of such discrim ination and harassment. Ms. Turner is a natural person and, upon information and belief, resides in Jefferson County, New York.
29. Defendant KENDA GRAY (“Ms. Gray”), sued in her individual capacity, has been an employee of the School Di strict during all times at which Charlie and A.E.P. have been students at Indian River High. Ms. Gray’s primary job responsibilities have included, and still include, monitoring student conduct at Indian Ri ver High School in the lunch room, study hall, and/or other locations on ca mpus to ensure a safe environment for all students. At all relevant times, Ms. Gray has h ad the ability and au thority to take corrective action on b ehalf of the School District to stop discrim ination and harassment among students occurring in school areas that she monitors and to discipline perpetrators of such discrimination and harassment. Ms. Gray is a natural person and, upon information and belief, resides in Jefferson County, New York.
30. Defendant PATRICIA HENDERSON (“Ms. Henderson”), sued in her individual capacity, has been an employee of the School District during al l times at which Charlie and A.E.P. have been students at Indian River Hi gh. Ms. Henderson’s prim ary job responsibilities included, and still include, monitoring student behavior at Indian River High School in the lunch room, hallways, and/or other locations on ca mpus to ensure a safe environm ent for all stud ents. At all relevant times, Ms. Henderson has had the ability and authority to take corrective action on behalf of the School District to stop discrimination and harassment among students occurring in school areas that she monitors and to discipline perpetrators of such discrim ination and harassment. Ms. Henderson is a natural pers on and, upon infor mation and belief, resides in Jefferson County, New York.
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31. Defendant BRIAN MOORE (“Mr. Moore”), sued in his individual capacity, is an employee of the School District. He was a guida nce counselor at Indian River Middle School during all tim es at which Charlie w as a student at the Middle School, a nd served as Charlie’s guidance counselor during Charlie’s sixth, seventh, and eighth grade ye ars. At all relevant times during his e mployment as a guidance couns elor at the Middle School, Mr. Moore’s responsibilities included providing assistance and guidance to students with respect to academ ic and personal concerns. At al l relevant tim es, Mr. Moore also had the authority, as a Middle School guidance counselor, to implement corrective measures on behalf of the School District to prevent and remedy harassment of students he se rved. Mr. Moore is a natural person and, upon information and belief, resides in Jefferson County, New York.
STATEMENT OF FACTS Discrimination and Harassment of Charlie Based on Sexual Orientation and Sex
32. From approximately September 1993 to Ja nuary 2004, and briefly in the fall of 2004, Charlie was a student in the Indian River Cent ral School District. Charlie is a gay m ale, although he did not disclose this fact to school officials or his peers until the 2002-2003 school year, when he was in eighth grade.
Theresa and Evans Mills Primary Schools 33. From the fall of 1993 through the spring of 1998—from Kindergarten through the end of fourth grade—Charlie was a student at Theresa Prim ary School and then Evans Mills Primary School. As his Kindergarten teach er wrote in a Pup il Progress Report, Charlie entered school an “enthusiastic little boy who is always willing to help”; the teacher found it to be “a joy working with such a happy little boy.” And w ith a supportive instruct or, Charlie departed Kindergarten after “work[ing] very hard . . . an asset to [the] classroom.”
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34. As a young prim ary school student, howev er, Charlie had already begun to be harassed because of his sexual orientation, 1 as students taunted him with nam es like “gay,” “fairy,” and “faggot.”
35. During this same period, Charlie also be gan to suffer harassm ent on the basis of sex.2 Specifically, Charlie’s nonconformity to sexist stereotypes, including but not limited to his tendency to socialize with fe males and his relative disinterest in sports as com pared to his m ale peers, made him the focus of additional ridicu le. Stud ents taunted Charlie with words lik e “pussy,” “sissy,” and “gir l,” and purported to im itate him with stereo typically female mannerisms and gestures. Students also m ocked Charlie with fem inized versions of his own name, calling him “Charlotte” and “Charlise.”
36. In addition to th e verbal abus e he e ndured, Charlie faced physical harassm ent while a student at the Prim ary Schools. For example, a fellow student with whom Charlie walked to and from Theresa Prim ary School rou tinely pushed Charlie and hit Charlie with his book bag. These assaults occurred both on the walk to and from school and on school grounds. Charlie also endured physical abuse on the pl aygrounds at the Prim ary Schools, and on one occasion was beat up by two fellow students. While abusing him on the walk to or from school or on the playground, Charlie’s at tackers would verbally abus e him on the basis of sexual orientation and sex as described above.
1 References throughout this Amended Complaint to discrimination and harassment “based on sexual orientation” “on the basis of sexual orie ntation” and “because of sexual orientation,” as well as references to “antigay” discrimination and harassment, include but are not limited to discrimination and harassment based on perceived and/or presumed sexual orientation.
2 References throughout this Amended Complaint to discrimination and harassment “based on sex,” “on the basis of sex” or “because of sex,” as well as references to “sex” or “sexist” discrimination and harassment, include but are not limited to discrimination and harassment because of nonconformity to stereotypes based on sex and gender.
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Indian River Middle School 37. Beginning with fifth grade in the fall of 1998 through the end of eighth grade in the spring of 2002, Charlie attended the Indian River Middle School, where the severe and pervasive harassment he experienced at the hands of his fellow students only escalated. Students subjected him to ongoing antigay verbal harass ment, calling hi m names like “gay,” “fairy,” “fag,” “queer,” “faggo t,” and “fudg epacker.” He was again frequently ridiculed based on sex and gender, as students purported to im itate him with mannerisms and gestures stereotypically considered female, and called him names like “girl,” “pussy,” “sissy,” “transvestite,” “Charlotte,” and “Charlise.” Students also taunted him with sexually explicitly comments, telling Charlie, for example, that he “liked to suck dick” and “ liked it doggie style.” And on one occasion, a student m ocked Charlie for a sk in treatment that left a white res idue on his face, loudly teasing him in front of a full classroom that he had semen on his face. 38. Throughout most of Middle School, includ ing substantial portions of each school year from fifth to eighth grade, the harassment of Charlie was a daily occurrence. On the worst days, students hurled antigay and sexist slurs at Charlie many times in a single day and made him the focus of frequent physical harassm ent—including pushing, shoving, and knocking books from his ha nds. Beyond physical harassm ent, Charlie’s classmates also threatened hi m with violence: time and again, students told Charlie they would “beat [his] ass.” 39. Gym class was particularly d ifficult for Charlie, as it was in gym and the gym locker room that he experienced som e of th e most regular physical abuse. Students shoved Charlie into lockers, for example, and on at least one occasion in the f ifth grade, students in the locker room pushed Charlie down into a box. 40. Charlie often avoided going into the locker room in order to escape harassm ent, and gym teachers wrote him up or otherwise pun ished him for failing to change clothes for gym
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class. During one gym class in the seventh grade, when Charlie had not changed his clothes and was not participating, a school gym teacher called Charlie a “sissy ” and told him to “stop acting like a little girl.” Other people, including a second gym teacher, witnessed this comment.
41. Over the course of Charlie’s tenure at the Middle Sc hool, Charlie’s mother Bobbi discussed the harassm ent of her son with numerous Middle School employees, including the Assistant Principal, Charlie’s guidance counselor Brian Moore, a school social worker, and numerous teachers.
42. School administrators were well aware of the harassment early in Charlie’s tenure at the Middle School, as Bobbi spoke directly to the Assist ant Principal about the peer mistreatment during Charlie’s fi fth-grade year. In addition, Bobbi spoke to school em ployees about the harassment during each year of Charlie’s attendance at the Middle School.
43. During Charlie’s seventh grade year, B obbi had a m eeting with approxim ately five school em ployees, including Charlie’s gy m teacher and Defendant Moore, to discuss th e sexist and antigay harassm ent against Charlie. Bobbi made clear that the harassm ent had been occurring for years. Even after thes e meetings, however, no reasonable or appropriate rem edial action was taken by the em ployees or administ rators. Instead, th e harassment continued unabated.
44. Bobbi also spoke about the harassm ent with a school social worker during Charlie’s seventh grade year, following an incide nt in which Charlie ha d become visibly upset during one of his classes—crying and trembling—because of the harassment he suffered. During that incident, a teacher brought C harlie to the guidance office, where he h ad a leng thy conversation with the school social worker a bout the m istreatment he faced at school.
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Afterward, Charlie told his m other about the conversation, prompting Bobbi to follow up with the social worker by phone.
45. Charlie later had on e very br ief follow-up meeting with the social worker a t school. Upon inform ation and belief, Mr. Moore was aware of Charlie’s conversation with the school social worker, but neithe r he nor any other school employ ee took any action in response to this incident.
46. Bobbi also m et privately with Mr. Moor e – both in person and by phone – to discuss the nature and frequency of the harass ment Charlie suffered. But instead of taking Bobbi’s reports seriously, Mr. Moor e dismissed her concerns. He to ld her, for example, that it was normal for middle school boys to engage in su ch harassment and that Charlie should endure it. Mr. Moore also purported to reassure her by saying that th e perpetrators of the harassm ent would be “jealous” of Charlie in the future for having female friends.
47. Charlie also spoke direc tly to Mr. Moore about th e harassment on num erous occasions, particularly in the seventh grade. Mr. Moore never propo sed or im plemented a strategy to address the widespread harassment. On the contrary, he grew dismissive of Charlie’s complaints, ignoring Charlie’s requests to have a meeting.
48. Mr. Moore’s reaction was especially troubling given his prof essed understanding of the damaging effects of bullying. In a 2006 Watertown Daily Ti mes article, for example, Mr. Moore expressed concern about the detrim ental impact of bullying on a victim ’s social, emotional, and intellectual development, noting that bullying could lead to absenteeis m, chronic anxiety, and depression.
49. Charlie’s own efforts to verbally defe nd himself typically backfired, as school employees turned a deaf ear to antigay language and instead punished Charlie for responding.
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On one occasion in sev enth grade, for example, in response to a stud ent taunting him yet again with the wo rd “faggot,” Charlie called the stud ent a “m onkey face.” A teacher then referre d Charlie to the Assistant Principal, and a “Notice of Disciplinary Action” was placed in Charlie’s school record. As was typical, th e teacher who referred Charlie to the assistant principal refused to listen to Charlie’s explanation of events and, upon info rmation and belief, took no action to discipline the student who had harassed Charlie.
50. Many School District employees at the Middle School—including most if not all of Charlie’s teachers—also personally witnessed the antigay and sexist harassm ent of Charlie. The harassment of Charlie was on full display for all to see, as students brazenly shouted out slurs like “faggot,” “fag,” and “sissy” in the school’s hallways, cafeteria, and classrooms and on the bus to and from school. But despite the public nature of th e harassment and the com plaints from Charlie’s mother time and again to various authorities, school employees deliberately failed to intervene to stop the harassm ent. Some employees even engaged in harassm ent and/or used sexist or antigay la nguage. As described supra at ¶ 40 , a gym teacher called Charlie a “s issy” and told him not to act like “a little girl.” Anot her teacher used the p hrase “that’s so gay” in a disparaging tone, prompting students around her to laugh.
51. Other students discovered Charlie’s sexual orientation when Charlie disclosed to a classmate in an on-line conversation during ei ghth grade that he was gay. The classm ate promptly printed the conversation, m ade copies, and distributed them to students at the Middle School. School em ployees, including Mr. Moore, ev entually took som e of the copies, but no school employee ever spoke to Charlie or the perp etrators about the incident. Charlie has been openly gay ever since.
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52. Seeking some way to alleviate the harassment Charlie faced, at the end of seventh grade, Bobbi contemplated transferring Charlie to a school outside the School District. To this end, Bobbi enrolled Charlie in a parochial school at the beginning of his eighth grade year. The move did not work out, lasting approxim ately two weeks before Charlie re-enrolled in the Middle School for the balance of eighth grade. Upon inform ation and belief, Mr. Moore was involved with the transfer arrangem ents and was aware of the underlying reasons for the attempted move.
Indian River High School 53. In the fall of 2002, Charlie became a student at Indian River High School. Just as the severe and pervasive harassm ent based on bo th sexual orientation and sex had followed him in the m ove from Primary School to Middle School, it continued to f ollow him from Middle School to Indian River High. Stud ents continued to brazenly and conspicuously shout antigay slurs at him like “faggot” in the hallways, cafeter ia and classrooms, and on the bus to and fro m school. 54. They also continued their sexist hara ssment of hi m by, am ong other things, ridiculing him with exaggerated effem inate gestures. Physical harassment and threats continued as well. A nd as before, school employees w ho witnessed discrim inatory harassment took no reasonable measures to stop it. So me of them openly blam ed Charlie. On one occasion, for example, a teacher told Charlie that he was cau sing a nuis ance after a student in the teach er’s class loudly called Charlie a “fag” in the teacher’s presence. 55. As described further infra at ¶ 59, som e employees even directly participated in harassing Charlie. 56. The ongoing discrim inatory abuse conti nued to take a toll on Charlie’s psychological and em otional health. During his first year at th e high school, he experim ented
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with alcohol and drugs in the ho pe of esta blishing social connections and m itigating his emotional distress. Although Charlie pursued treat ment that summer, his emotional distress and social isolation continued to worsen in response to escalating harassment.
57. Indeed, the antig ay and sexist abuse directed at Charlie becam e even m ore aggressive during his second year at Indian Ri ver High. W ith greater f requency and intensity than ever, students attacked Charlie with discri minatory slurs, pushed and shoved him forcefully in the hallways, knocked his belongings from his hands, and threatened him with violence. On at least one occasion, a s tudent threatened Charlie’s life. S tudents also humiliated Charlie by frequently hurling spitballs, f ood and other objects at him , grabbing and pinching his buttocks, and repeatedly vandalizing his locker with the word “fag.”
58. High school em ployees, including Mr. Ke ttrick, were aware of harassm ent inflicted on Charlie but displayed utter and willful indifference to it. In addition, som e Indian River High employees actively participated in the harassment of Charlie.
59. Defendants Ms. Gray and Ms. Turner—whose very job w as to m onitor student conduct in the lunch room, study hall, and other areas—frequently engaged in the sam e conduct they were responsible for preventing. They ha rassed and mocked Charlie based on his sexual orientation and sex, purporting to imitate Charlie by speaking and acting in a stereotypically effeminate manner when addressing him. This included raising the pitch of their voice, changing the way they stood, speaking with a lisp, and m aking limp-wrist gestures. This harassm ent and mockery took place on a near-weekly basis du ring Charlie’s first and second years at Ind ian River High, often in front of other students. Ms. Turner also called Charlie “girl,” and frequently berated him by saying he was “disgusting,” that he “shouldn’t be gay,” and that he “should make babies.”
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60. During his time at Indian River High School , Charlie was one of very few openly

gay male students. Another, Gregg Van Hoes en (“Gregg”)—a student one year senior to

Charlie—experienced the same type of antigay and sexist h arassment as Charlie. For exam ple,

students frequently called Gregg nam es such as “faggot” and mocked him for talking and acting

“like a girl.” Gregg repeatedly inform ed Indian River High School employees, including Mr.

Kettrick, of the sev ere, pervasive, and offensiv e harassment he faced on the bas is of sexual

orientation and sex. Gregg also reported that teachers and staff m embers had utterly failed to

respond to this harassment. Gregg’s com plaints to administrators began before Charlie was a

student at Indian River High, and continued throughout Charlie’s tenure.

61. Gregg had also experienced harassm ent at the Middle School and had reported it

to Middle School em ployees. His m iddle school guidance counselor told him not to be open

about his sexual orientation because she believed his openness caused other students to harass his

ex-girlfriend. The guidance counselor’s advice was reported to at least one Middle School

administrator.

62. Despite Gregg’s frequent reports of ha rassment, neither Mr. Kettrick nor any

other employee at Indian River High took any reas onable or appropriate action to prevent future

harassment or to ensure that staff appropriately responded. Both Mr. Kettrick and Mr. Davis

further made it clear to Gregg that Gregg coul d and should avoid mistreatment by conforming to

sexist stereotypes and by rem aining silent abou t his sexual orientation. School adm inistrators,

including some Defendants, even refused to take appropriate disciplinary action when another

student punched Gregg in the face, causing

a broken tooth and a bloody nose. The

administration’s response was instead to attribut e the attack to Greg g’s sexuality and to tell

Gregg that he had brought the attack on himself.

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63. In an effort to protect him self and a void the harassm ent as m uch as he could, Gregg began going to the school li brary rather than the cafeter ia during his lunch period. Despite their awareness of the harassm ent he f aced in the lunch room , school ad ministrators subsequently refused to allow Gregg to escape to the library, insisting instead that he go to the cafeteria during lunch.
64. Upon information and belief, Indian River High employees further contributed to the hostile environment by making sexist and an tigay comments about Gregg and Charlie when Gregg and Charlie were not present. One study ha ll monitor told a female student, for example, that Gregg brought the harassment on himself with his effe minate mannerisms. Upon information and belief, on at least one occasi on while sp eaking to G regg, Ms. T urner also mocked Charlie’s effeminacy, or perceived effeminacy.
65. Mr. Kettrick also inten tionally discriminated against both Charlie and Gregg in his enforcement of school policies, including the policy regarding public disp lays of affection. In November 2003, a student walked into a stairw ell at Indian River High and saw Charlie and Gregg—who had recently begun dating—ex changing a hug and kiss. Later that day, Mr. Kettrick had Charlie and Gregg rem oved from class and sent to his office, where Mr. Kettrick and Ms. Henderson threatened to punish Charlie and Gregg with detention if they were again seen engaging in such affectionate conduct at school. Mr. Kettrick also ordered Charlie and Gregg not to have any physical contact. Du ring this m eeting, Mr. Kettrick revealed his awareness that an invidious and dangerous antig ay environment existed among students, telling Charlie and Gregg that they should not kiss at school “for [ their] own safety.” In an apparent effort to excuse the harassment, Mr. Kettrick also told Charlie and Gregg that having two openly
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gay male students at school, as opposed to none or only one, caused other students to feel uncomfortable or threatened.
66. The above-described meeting with Mr. Ke ttrick diverged from standard school procedures in several m eaningful respects. First, the Indian River H igh School Handbook 3 explains that public displays of affec tion by students “may,” if they “persist,” result in paren tal notification and a conference with adm inistrators. Second, with respect to heterosexual couples exchanging a hug and kiss at Indi an River High, the School Dist rict’s policy and practice was not—and is not—to pull stude nts from class for a m eeting with the principal or to threaten them with punishment.
67. Midway through the 2003-2004 academ ic year, Charlie’s emotional health sunk to new lows after a series of incidents invol ving vandalism of his locker. After the first incident—in which someone had scrawled the word “FAG” in thick b lack marker across h is locker door—Charlie did his best to wipe off the marking, only to have it quick ly replaced with the word “F AG” written again, this tim e in perm anent marker. Thoug h Charlie reported this incident to the school’s m ain office, the antiga y vandalism remained on his locker for at least two days before school m aintenance removed it. Shortly thereafter, the word “FAG” appeared again on his locker, this time carved into the metal. The slur remained carved into his locker, in plain view of students and staff, for at least two weeks. The word “FAG” was also written on the locker next to Charlie’s, with an arrow pointing to Charlie’s locker.
68. On the heels of these traum atizing incidents, Charlie and his parents, Bobbi and Todd, demanded several m eetings with Principal Kettrick. They hoped to discuss ways to
3 Citations in this Amended Complaint to the “Handbook” refer to the 2006-2007 Indian River High School Handbook, which was avai lable publicly on t he School District’s website at the time the Original Complaint was filed. As of July 1, 2009, no version of the Handbook was available on the School District website.
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address the severe, p ervasive, and o ffensive antigay and sexist harassm ent and discrim ination Charlie experienced at school so as to am eliorate the severely detrim ental effects that this harassment and discrimination had on Charlie’s health, education, and well-being.
69. At one of the first of these m eetings with the principal and his parents, Charlie supplied Mr. Kettrick a written list of many of the incidents of harassment that had been inflicted upon him in the fall of 2003. Thi s included a detailed list of the nam es he was called on a regular basis—including “gay,” “fairy,” “fag,” “queer,” “f aggot,” and “fudgepacker”—and a report of the physical harassment he suffered due to his sexual orientation and sex. Mr. Kettrick photocopied this list. B obbi also told Mr. Kettrick that she had been reporting harassm ent of Charlie to teachers and other School District em ployees since Charlie was in Kindergarten, but that no one from the School District had taken any meaningful action to help her son. After years of feeling helple ss, Bobbi hoped that Mr. Kettrick would heed her pleas and intervene on Charlie’s behalf.
70. To Bobbi’s dism ay, Mr. Kettrick prove d even less helpful than those who preceded him. His response was unequivocal, unreas onable, and discriminatory. Mr. Kettrick did not, for exam ple, propose any reasonable measur es to address the hara ssment. Instead, he treated Charlie as th e problem—suggesting at one point that Charlie be placed alone in a classroom, every school day for the entire day, to be taught only basic subjects. Mr. Kettrick only dropped this proposal when Bobbi pointed out that, even assum ing it were feasible and otherwise acceptable, it would be insufficient to remedy the harassment when Charlie was on his way to and from the isolated classroom.
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71. Mr. Kettrick also told Charlie and his parents that Charlie needed to “tone it down” if he wanted to avoid antigay and sexist harassment. This response discriminated against Charlie based on his sexual orientation, sex, gender, and gender expression.
72. Mr. Kettrick did not offer to investigate the antigay or sexist harassm ent against Charlie and, upon inform ation and belief, Mr. Ke ttrick did not investigate it. Nor did Mr. Kettrick offer measures to increase or alter the monitoring of student behavior. Mr. Kettrick also told Charlie and his parents, without engaging in any investigation, th at he did not believe Charlie’s report that teachers regularly failed to respond to antigay slurs.
73. Mr. Kettrick also a ttempted to m inimize the significance of the abuse and harassment Charlie reported. At a m eeting with Charlie and his parents, for exam ple, Mr. Kettrick stated that the students wh o frequently called Charlie “faggot” were not necessarily being discriminatory. Mr. Kettrick also expressed the view that antigay harassment was nothing like racial harassm ent, and indicated that th e school need not address the two kinds of harassment similarly.
74. Mr. Kettrick also rejected out of hand reasonable solutions and remedies proposed by Charlie and his parents, including the developm ent of a seminar or workshop to train teachers on the issue of antigay harassm ent. Mr. Kettrick also refused to provide Charlie a m entor or counselor with whom to regularly discuss issues of harassment, how to handle such interactions with his peers and teachers, an d his own personal concerns a nd fears about the hostile school environment.
75. As described further infra at ¶¶ 84 to 93, Mr. K ettrick also unlawfully refused to allow the creation of a gay-straight alliance at Indian River High as a m eans to enhance support, tolerance, and understandi ng within the school comm unity. He rejected the pr oposal despite
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actual knowledge of the severe and pervasive nature of harassment of Indian River High students based on sexual orientation a nd sex. Instead, Mr. Kettrick further demonstrated his own stereotypes by telling Charlie to join the student drama club if he needed a supportive environment, despite th e fact that C harlie had not expressed, and did not have, an interest in drama.
Charlie Withdraws from Indian River High School 76. Finally, after a series of unsuccessful meetings with Mr. Kettrick in January 2004, Mr. Kettrick told Charlie and his p arents that he could not g uarantee Charlie’s safety at Ind ian River High. Bobbi inf ormed Mr. Kettrick in response th at, if that w as the case, in order to protect her son, she had no choice but to rem ove Charlie from school. Mr. Kettrick supported removing Charlie from school, and Charlie wit hdrew from Indian River High that term . Motivated by the s ame concerns, Gregg likewis e withdrew from Indian River High in early 2004. 77. When Charlie and Gregg withdrew from Indian River High School, Mr. Kettrick had actual knowledge that their departure was the direct result of the severe, pervasive, and offensive harassment and discrimination based on sexual orientation and sex that they faced at Indian River High at the hands of students and School District employees and adm inistrators, including Mr. Kettrick himself. 78. Frustrated by his inferior educational opportunities outside school and feeling that he had no other options, Charlie attem pted to re turn to Ind ian River High the f ollowing fall, where he was placed a gain in the ninth grad e. Still fearf ul and trau matized from years of mistreatment, however, he was unable to integr ate and f unction in the school environm ent. Indeed, school policies with respect to hara ssment had not changed, and school e mployees
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continued to provide him no support in coping w ith the dangerous environm ent. He left after approximately three weeks.
79. Bobbi subsequently communicated w ith the School District assistant superintendent regarding Charlie’s hom e schooling. A s the assistant superintendent also forwarded all written corresponde nce with Bobbi to the School District superintendent, the superintendent also had actual know ledge of Charlie’s situation. As a result of Charlie’s ow n efforts and those of his mother, Charlie later earned his GED.
80. Upon information and belief, even after two of his students were forced to drop out of Indian River High, Mr. Kettrick failed to take any appropriate or reasonable measure—as principal or later as School Dist rict superintendent—to investigate or remedy the hostile antigay and sexist environment at Indian River High and in the School District. Nor did he take any step to stop the dangerous harassm ent of students based on sexual orientation or sex, harassment that Mr. Kettrick himself understood to threaten the safety of Charlie, Gregg, and students like them.
81. Moreover, the School District has known a bout the problem of antigay and sexist harassment since at least 1994. T hat year, a survey of students in Jefferson County and neighboring areas found that sexual harassm ent and antigay nam e calling were a common problem at local schools. A 1996 article in the Watertown Daily Tim es referred to this survey in noting that “lezzie” was a “common jibe” for females who did not conform to sexist stereotypes. The article quoted Mr. Kettrick as acknowledging the su rvey and its releva nce to the School District. Mr. Kettrick also was quoted in the arti cle as claiming that he was working to educate students on sexual harassment.
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82. As described further inf ra at ¶ 106, the 1994 Indian River High School yearbook published a lesbian student’s statement regarding the isolation felt by gay and lesbian students at Indian River High.
83. And yet, despite th ese public statements and the later withdrawal of at least two students due to antigay and sexist harassm ent, Mr. Kettrick has publicly refused to acknowledge that a p roblem with harassm ent ever ex isted. When questioned in 20 06 concerning Charlie’s withdrawal from Indian River High, Mr. Kettr ick told th e Watertown Daily Tim es that “[ t]he atmosphere of harassment that they say exists simply does not.” Indian River High Repeatedly Denies Permission to Form a Gay-Straight-Alliance
84. Distraught by the hostile antigay environment at Indian River High School, during Charlie’s first year there, Gregg approached Mr. Kettrick and asked pe rmission to found a gaystraight student alliance (GSA) as an offici ally recognized extracurri cular student group. Charlie, who also supported the alliance, was ea ger to join the group if Mr. Kettrick approved Gregg’s request.
85. The purpose of the group was to educate the school community about the importance of tolerance, inclusion, and respect—regardless of sexual orientation, gender identity, and gender expression—and to bri ng attention to the harmful cons equences of discrim inatory conduct. The group, which was to be open to all students, also sought to provide gay, lesbian, bisexual, and transgender students and their alli es a supportive outlet, and to work with other students to make the school a safer and more inclusive place for students who were, or who were perceived to be, gay, lesbian, bisexual, or transgender.
86. In requesting permission to form the GSA, Gregg presented a written packet with information about GSAs in general to Mr. Kettr ick, including information about GSAs’ purpose, benefit, and students’ legal right to form them at school.
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87. Mr. Kettrick dismissed Gregg’s request out of hand, despite the fact that, as stated on the School District’s website, the Board of Education specifica lly recognizes extracurricular activities to be “an i mportant part of the school . . . [and] supports an extr acurricular program that provides a wide variety of opportunities for the students in our school.”4
88. In fact, when it comes to other student groups with various purposes and interests, Indian River High has extended its full support. Upon inform ation and belief, student groups receiving official approval and recognition at the High School have included, at times relevant to this suit, the Key Club, Multi-Cultural Club, Sk i Club, Stage Crew, Stud ent Council, Students Against Driving Drunk, a religious student club, and Yearbook. Th ese clubs have been, at all relevant times, “noncurricular” for purposes of the EAA, 20 U.S.C. § 4071 et seq.
89. On information and belief, all of the above student groups received perm ission from Indian River High’s principal before they were recognized as official student groups, and all have been allowed to meet on school premises during noninstructional time.
90. On information and belief, official st udent group status c onfers a num ber of benefits, including but not limited to the righ t: (a ) to be listed in Indian River High’s student handbook and on the School District and/or Indian River Hi gh website as an approved extracurricular club; (b) to use Indian River High’s public address system; (c) to meet on Indian River High property; (d) to post club-related inf ormation at Indian River High; (e) to use Indian River High equipment and resources; and (f) to be photographed and listed in the Indian River High yearbook.
4 The quoted statement was publicly available in the Handbook on the School District’s website at the time Plaintiffs filed the Original Complaint.
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91. When Gregg informed Mr. Kettrick that the Equal Access Act protected his right to form the GSA, Mr. Kettrick accused Gregg of making threats. Mr. Kettrick continued to refuse to allow Gregg to form the GSA, to meet at school, or otherwise have official recognition.
92. Charlie and Gregg together m ade a second attempt to found a GSA as an officially recognized student group at the beginni ng of Charlie’s second year at the high school. The purposes of the GSA were substantially sim ilar in all m aterial respects to the alliance proposed to Mr. Kettrick the previous school y ear. And as he had done when Charlie was a freshman, Mr. Kettrick again rebuffed their request. In a statem ent evidencing his awareness o f schools’ obligations un der the federal Equal Acce ss Act, Mr. Kettrick also declared that h e would rather ban all student extracurricular groups than allow a gay-straight alliance to form. He did not, however, take any such action, choosing instead to bar only the GSA.
93. The refusal to allow or recognize a student GSA as alleged herein greatly hindered Charlie’s expression, and contributed directly to other harm s to Charlie alleged in this Amended Complaint, including but not limited to extreme emotional distress.
94. A.E.P. is Charlie’s s ixteen-year-old sister who entered Indian River High in the fall of 2007. She will begin her ju nior year in the fall of 2009. As a student at Indian River High, A.E.P. has regularly witnessed the use of antigay slurs like “faggot,” including during class time. On one oc casion, a student commented to her and other classm ates that “all fags deserve to die.” Cognizant of the treatm ent her brother endured at Indian River High, and recognizing that antigay hara ssment remains a problem years after Charlie and Gregg were driven from the school, A.E.P. sought to form the GSA that school officials had denied to her older brother.
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95. In October 2008, A.E.P. sought perm ission from the Indian River High School assistant principal, Mr. Jay Brow n, to form an officially recogni zed GSA. The purposes of the alliance were—and remain—substantially similar in all material respects to the alliance proposed in earlier years by Charlie and Gregg.
96. Particularly because of what happened to her brother, A.E.P. was, and rem ains, determined to cre ate and maintain an inclu sive organization to help teach others in the school community that gay people are entitled to equal respect.
97. Following in Mr. Kettrick’s footsteps, Mr. Brown rejected A.E.P.’s request, unreasonably proposing that a GSA might be more appropriate in about two years—when A.E.P. will be on the verge of graduating from high school.
98. Dissatisfied with that response, in Nove mber 2008, A.E.P. sought permission to form the GSA directly from the current Indian River High principal, Mr. Troy Decker. Like Mr. Kettrick and Mr. Brown before him, Mr. Decker rejected the proposal despite having actual knowledge of Indian River High’s hostile antigay environment. Indeed, Mr. Decker effectively acknowledged to A.E.P. that gay and lesbian stu dents may face difficulties at school, but he told A.E.P. that they should go to the guidance office to discuss their problem s and that they could not form a GSA. Mr. Decker further admitted that the basis for his denial was content-based and viewpoint-based discrimination. Specifically, Mr. Decker claimed the GSA would upset parents and students.
99. The refusal to allow or recognize a st udent GSA as alleged herein hindered A.E.P.’s expression and that of other students.
100. Defendants, including but not lim ited to Mr. Kettrick, Mr. Decker, and Mr. Brown, exacerbated th e hostile antigay and sexist env ironment at Indian River High by
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repeatedly refusing to allow or recognize a GSA. These refusals reinforced the m essage that lesbian, gay, bisexual, and transg ender students and their allies ar e not entitled to equal respect and inclusion within the school community.
101. On April 8, 2009, A.E.P. and her brother Ch arlie filed the Orig inal Complaint. Plaintiffs’ counsel also sent a letter to the S chool District, the Board of Education, and Defendants Kettrick, Decker, and Brown, de manding that School District and Indian River High officials immediately cease the on going deprivation of A.E.P.’s right to for m a gay-straigh t alliance.
102. On or about April 9, 2009, the School District issued a press release in response to the lawsuit, stating that it s upported a variety of student progra ms and activities “to prom ote the idea of tolerance and acceptance.” The press rel ease identified various activ ities and programs; conspicuously absent from the press release was any mention of a gay-straight alliance.
103. In a letter to Plaintiffs’ counsel dated April 13, 2009, Defendants’ counsel indicated that a gay-straight alliance would be permitted to meet for the first time the following Monday—April 20, 2009—the first day after spring vacation. A. E.P. met with a faculty advisor and other interested students that Monday to begin forming the GSA.
104. The School District still do es not grant equal recognit ion and benefits to the student GSA. For exam ple, although the D istrict overhauled its websit e after the Original Complaint was filed, the new version of the website excludes the GSA f rom the list of extracurricular activities at Indian River High. The webs ite lists over twenty other stu dent activities.
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History of Antigay and Sexist Harassment, Discrimination, and Censorship in the District 105. Severe and pervasive antigay and sexist harassment among students and staff has
been a longstanding problem in the School District. The above-described experiences of A.E.P., Charlie, and Gregg are similar to those of many other School District students over the course of many years. For exa mple, upon infor mation and belief, at various tim es during the past eight school years, at least five ot her Indian River High students— in addition to A.E.P, Charlie and Gregg—have sought permission from Indian River High School administrators to form a student gay-straight alliance or similar club at school. All of their requests were denied.
106. Taunee Grant (“Taunee”), a for mer student in the School District, cam e out as a lesbian before graduating from Indian Rive r High in 1994. W hile a student, she too was subjected to harassment based on both her sexual orientation and sex, an experience that Taunee did not keep to herself: During her senior year, the school yearbook published her statem ent expressing hope that oth er gay and lesbian stud ents could “find solace, n ot isolation, in a place they can learn.” The yearbook was distributed to students several months before the school year ended.
107. Students subjected Taunee to n ear daily harassment, calling her nam es like “dyke,” “lesbo,” “lezzie,” “m an-hater,” “sick,” a nd “pervert,” often in the presence of school employees, who failed to intervene. Som e male students told Taunee in a threatening tone that they knew “what it would take to make [ her] straight.” Taunee attem pted to avoid the hostility by staying out of the cafeteria and the study hall, but she could not escape the verbal abuse in the hallways and classrooms.
108. After Taunee revealed her sexual orienta tion, several school em ployees avoided her, stopped speaking to her, and/or no longer called on her in class. S ome school employees
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ducked into doorways or turned th e other way when they saw Taun ee in the hallway. Still other school employees were openly unsupportive or hostile, making disparaging comments about gay people and m aking antigay jokes du ring class. No school em ployee ever offered to take any remedial measure to address the pervasive harassment Taunee experienced.
109. Taunee considered leaving school and taking classes else where in order to escape the hostile antigay and sexist environm ent—an option that her guidance counselor supported. Upon information and belief, then-principal James Kettrick was aware of the harassment Taunee faced and supported her early withdrawal. Ultimately, however, Taunee finished her senior year at Indian River High.
110. Matthew Deem, a 1998 graduate of I ndian River High, also experienced discrimination and harassment based on sexual orientation and sex at Indian River High. On a near daily basis for his f our years at the high school, students taunted him with names like “fag” and “faggot.” Students also m ocked his nonconf ormity to sexist ster eotypes by calling hi m “girl.” On m any occasions, School District em ployees witnessed the antigay and sexist nam ecalling, but failed to take any appropriate or reasonable action to stop the pervasive mistreatment. During one class, for exam ple, when a studen t called Matthew a “fag” in the presence of a teacher, Matthew specifically asked the teacher if she had heard the slur. Her only response was to tell Matthew to “be quiet.”
111. Gym class and the locker room were particularly hostile env ironments for Matthew. To escape the locker room harassm ent, he often wore his gym clothes underneath his regular clothes to en tirely avoid the locker room. Matthew found that h is gym teachers, including then-teacher Defendant Brown, failed to address or acknowledge the harassm ent Matthew faced.
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112. In an effort to avo id the sexist and antigay harassment, Matthew arranged his senior-year schedule so as to leave Indian River High early every day. School Officials’ Failure to Amend Written Policies
113. Over six years have p assed since the st ate legislature expr essly incorporated sexual orientation into antidiscrim ination provisions governing schools. See New York Civil Rights Law § 40-c; New York Human Rights Law §§ 291, 296(4). Six years have also passed since the state began requiring schools to collect detailed inform ation about harassm ent at school, including harassm ent based on sexual orientation. See 8 N.Y.C.R.R. § 100.2(gg)(1). Despite these changes to the law, and despite the withdra wal of at least two stud ents due to antigay and sexist harassm ent, the School District has not am ended its written p olicies and handbooks to prohibit discrimination based on sexual orientation.
114. The School District’s Equal Opportuni ties Public Notice, which has been endorsed by the Board of Education and a ppears in the Indian River High School Handbook, states only that the “School District hereby advises students, parents, employees, and the general public that [the School District] . . . offers . . . em ployment and educational opportunities, . . . without regard to gen der, race, color, n ational origin or handicap.” An id entical policy statement—again lacking m ention of sexual orientation—appears in the School District’s handbook for athletes.5
115. An “equal opportunity” statem ent on the Human Resources page of the School District’s new website also fails to expressly include sexual orientation.
5 Citations in this Amended Complaint to the School District’s “new” website refer to the website as it e xisted on July 1, 2009 . Sim ilarly, allegations in ¶¶ 113- 15 and 117-18 regarding the District’s current policies and statements refer to those existing as of July 1, 2009. As noted above, however, see ¶ 66 n.3, supra, citations to the High School’s “Handbook” refer to the Handbook available on the District’s web site at the time Plaintiffs filed the Original Complaint.
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116. Upon information and belief, sim ilar statements and publications by the School District and Board during Charlie’s tenure as a student also excluded a ny reference to sexua l orientation.
117. The only reference to harassm ent based on sexual orientation in the Indian River High School Handbook appears in a section entitled “Uniform Violent Incident Report System Regulation,” which contains a partial excerpt from the “Definitions” section of a state regulation governing school districts’ duty to annually report certain form s of misconduct to the state. See 8 N.YC.C.R.R. § 100.2(gg)(1). Thus, while the School District appears to recognize in the Handbook that state law requires distri ct officials to record and re port to the state certain form s of harassment at school, including harassm ent based on sexual orient ation, the very sam e Handbook fails to actually prohibit such harassment or to include se xual orientation in its equal opportunity statement for students.
118. Particularly in view of the withdraw al of at least two students from Indian River High due to antigay and sexist ha rassment, the School District’s ongoing refusal to take even the simple measure of amending its written an tidiscrimination policies to include sexual orientation provides additional evidence of its deliberate indifference, if not outright hostility, to the rights of its students, including and especially its lesbian, gay, bisexual, and/or transgender students. The School District Perpetuated an Antigay and Sexist Environment that Seriously Damaged Plaintiffs
119. The specific incidents of discrim ination, harassment, and failu re to act alleged herein are m erely representative of the incid ents suffered by Ch arlie during his tenure in the Indian River School District. An exhaustive list would be too lengthy to detail in this Am ended Complaint.
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120. At all relevant tim es, all Defendants were acting under color of state law . At all relevant times, the Defendants who are em ployees of the Board of Education and/or of the School District were acting within the course and scope of their employment.
121. The discrimination and harassment based on sexual orientation and sex directed at Charlie and described herein took place duri ng school h ours and o n school grounds at th e Primary Schools, Middle School, and Indian Rive r High, as well as on bus rides to and fro m these schools. Discrimination and harassment took place in classrooms, school hallways, locker rooms, and in other settings over w hich the School District and its offi cials and employees had disciplinary authority over the harassers.
122. Upon information and belief, School Dist rict officials and e mployees at the Primary Schools, Middle School, and Indian River High—inclu ding but not lim ited to the Middle School Assistant Principal and Defendants Mr. Kettrick, Mr. Decker, Mr. Davis, Ms. Gray, Ms. Turner, Ms. Henderson, and Mr. Moore—deliberately, purposefully, and intentionally failed to undertake reasonable or appropriate investigative, disciplinary, preventive, remedial, or corrective measures in re sponse to the antigay and sexist ha rassment alleged herein, despite the ability and authority to do so on behalf of the Sc hool District, and despite actual knowledge that the harassment was occurring to C harlie and had been occurring to other students as early as 1994. This failure to act departed from the procedures of the Prim ary Schools, Middle School, Indian River High, and the School D istrict for dealing with other forms of harassment, violence, and peer abuse.
123. When he was principal of Indian Ri ver High, Defendant Kettrick had actual knowledge that the educational environm ent was hostile an d dangerous for students who were gay, or who were perceived to be gay, as well as for students who did not conform, or were
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perceived not to conform, to sexist stereotypes. He was aware, for example, of the pervasive use of antigay slurs, threats, and acts of violence directed at g ay students and gender-nonconforming students. Mr. Kettrick also had actual knowle dge of the ongoing failures of Indian River High faculty and staff to respond to an tigay and sexist harassm ent in an appropriate, reasonable, or nondiscriminatory manner.
124. Defendants acted with deliberate indiffere nce to Plain tiffs’ clearly es tablished rights and with the intent to discriminate based on sexual orient ation and sex. Defendants also acted with the intent to suppress and to discriminate agains t expression that was supportive of lesbian, gay, bisexual, and/or transgender people.
125. Defendants’ acts and om issions involving censorship, harassment, and discrimination as alleged in th is Amended Complaint were motivated by evil m otive and intent. These acts and om issions involved reckless and ca llous indifference to the federally protected rights of students including Charlie and A.E.P.
126. The acts and omissions of Defendants not only failed to remedy, but also fostered and promoted, the harassment of Charlie by other students and by School District employees.
127. Upon information and belief, the acts and om issions of censorship, harassm ent, and discrimination committed by School District em ployees alleged herein reflected, and were made pursuant to, the policies and practices of the School District and the Board of Education. These acts and omissions were sufficiently persistent, widespread, permanent, and well-settled so as to constitute a custom of the Sc hool District and Board of Education with the force of law. The discriminatory, harassing, a nd otherwise unlawful acts and omissions by School District employees were so manifest as to imply the acquiescence of senior policy-making officials.
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128. Upon information and belief, neither the School District, the Board of Education, nor any of the School District’s policym akers, officials, administrators, or other em ployees have ever provided, at any time relevant to th is Amended Complaint, adequate training to administrators, faculty, or staff with respect to discrim ination, bullying, or harassment based on sexual orientation or sex. This failure has occurred despite actual knowledge by relevant policymakers, officials, adm inistrators, and em ployees of the prevalen ce of antigay and sexist discrimination and harassment by School District students and employees. The failure to provide adequate training is a direct and proxim ate cause of the School District e mployees’ discrimination against and harassm ent of Charlie, and their fail ure to adequately address the discrimination and harassment perpetrated against him by others.
129. Upon information and belief, at all tim es relevant to this suit, Defendants have had and enforced policies and procedures to pr event and remedy harassment, discrimination, and violence suffered by students who are, or who ar e perceived to be, heterosexual, as well as students who conform to, or who are perceived to conform to, sexist stereotypes. School District officials and em ployees, including officials a nd employees at the P rimary Schools, Middle School, and Indian River High, also took investig atory, disciplinary, and other corrective action in response to the harassment of students similarly situated to Charlie when that harassm ent was not based on sexual orientation or perceived nonconfor mity to sexi st stereotypes. By way of example only, at tim es relevant to this lawsuit, school em ployees routinely disciplined and/or warned students when they used profane langu age that was not antigay in nature and did not involve offensive term s for gender-nonconform ing males; school employees also disciplined students who used offensive terms like “retard” to refer to students in special education.
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130. Upon information and belief, at all tim es relevant to this suit, Defendants have had and enforced policies and procedures to pr event and remedy harassment, discrimination, and violence directed at female students. School District officials and employees, including officials and employees at the Prim ary Schools, Middle School, and Indian River High, also took investigatory, disciplinary, and other corrective action in response to the ha rassment of fe male students who were otherwise sim ilarly situated to Charlie. By way of example only, employees at the Middle School and Indian River High, at tim es relevant to this laws uit, took disciplinary action against male students who made sexua lly explicit or offensive co mments or gestures to their female classmates. One student who attended the Middle Sch ool with Charlie was suspended for a week for pulling and snapping a female classmate’s bra strap.
131. Upon information and belief, at all tim es relevant to this suit, Defendants have had and enforced policies and procedures to provide support services to students who are victims of trauma or peer abuse at school, where t hose students are fe male, gender-conforming, and/or heterosexual. By way of exam ple only, one hete rosexual female student who attended Indian River High at approxim ately the sam e time as Charlie received substantial support from the school when she was the victim of false, sexually offensive rumors. Mr. Davis, hearing of the rumors, approached the student to offer suppor t, and the school took imm ediate remedial measures to protect her. Defendants deliberatel y failed to provide support services on an equal basis to Charlie because of his sexual orientation and sex.
132. Defendants’ deliberate indifference, as well as th eir acts and omissions involving censorship, discrimination, and harassment as alleged herein, caused Charlie to suffer severe and extreme emotional distress and psychological damage, including but not limited to an inability to concentrate on his studies, depress ion, debilitating fear, despair, anger, humiliation, and anxiety.
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Furthermore, as a result of De fendants’ acts and om issions, Charlie lost substantial amounts of schooling and was deprived of a high school dipl oma. The lack of a high school diplom a has had a serious adverse impact on C harlie’s academic, professional, and fina ncial future. Absent Defendants’ acts and om issions as alleged here in, Charlie would have receiv ed a high school diploma from Indian River High. Defendants’ unl awful and discriminatory acts and om issions were the direct and proximate cause of the harms to Charlie herein alleged.
133. Upon information and belief, the decisions to refuse to allow or recognize a student GSA as described herein were m ade pursuant to a policy, p ractice, and custom of t he School District and the Board of Education.
134. The harassment of students based on sexua l orientation and/or sex by a public school district or its officials or employees bears no substantial or rational rela tionship to any compelling, important, or legitimate government interest.
135. Acts or omissions by school districts, their officials, and/or employees that foster, encourage, condone, or allow harassm ent based on sexual orientation and/or sex bear no substantial or rationa l relationship to any co mpelling, important, o r legitimate government interest.
136. Continuing to perm it a student GS A with official recognition by Indian River High and the School District will serve the public interest.
FIRST CLAIM FOR RELIEF Equal Access Act, 20 U.S.C. § 4071 et seq.
Violations of the Equal Access Act (Brought by Charles Pratt Pursuant to 20 U.S.C. § 4071 et seq. and 42 U.S.C. § 1983 Against the
School District, the Board of Education, and Mr. Kettrick in his official and individual capacities)
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137. Plaintiffs incorporate by reference and r eallege paragraphs 1 to 136 of this Amended Complaint.
138. The above-described acts and omissions of the School District, the Board of Education, and Mr. Kettrick violated Charles’s clearly established rights under the Equal A ccess Act.
139. Upon information and belief, Indian Rive r Central School District and Indian River High School have received federal financial assistance at all times relevant to this Amended Complaint.
140. At all relevant times, Indian River High operated a limited open forum pursuant to the Equal Access Act, 20 U.S.C. § 4071 et seq., in that it perm itted noncurriculum-related student groups to m eet on school prem ises during noninstructional ti me and provided these groups with certain privileges and resources.
141. Because Indian River High m aintains a limited open forum, Indian River High may not deny equal access or a fair opportunity to , or discrim inate against, any students who seek to con duct a m eeting within the lim ited open forum on the basis of religious, political, philosophical, or other content or viewpoint of the speech at such meeting.
142. These Defendants violated the Equal Access Act by denying Charles equal access to Indian River High’s lim ited open forum on the basis of imperm issible content and viewpoint based discrimination.
143. These Defendants’ violations of Charles’s rights under the Equal Access Act are the actual, direct, and proximate cause of injuries suffered by Charles as alleged herein.
144. Accordingly, Plaintiff Charles Pratt r equests judgment in his favor ag ainst the School District, the Board of Education, and Mr. Kettrick as set forth in the Prayer for Relief.
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SECOND CLAIM FOR RELIEF Equal Access Act, 20 U.S.C. § 4071 et seq.
Violations of the Equal Access Act (Brought by A.E.P. pursuant to 20 U.S.C. § 4071 et seq. and 42 U.S.C. § 1983 Against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and
individual capacities, and Mr. Brown in his individual capacity) 145. Plaintiffs incorporate by reference and reallege paragraphs 1 to 136 of this Amended Complaint. 146. The above-described acts and om issions of the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brow n violated A.E.P.’s rights under the Equal Access Act. 147. Upon information and belief, Indian Rive r Central School District and Indian River High School have received federal financial assistance at all times relevant to this Amended Complaint. 148. Indian River High has created and o perated a limited open forum pursuant to the Equal Access Act, 20 U.S.C. § 4071 et seq., in that it perm its noncurriculum-related student groups to meet on school prem ises during noninstructional time and provides these groups with certain privileges and resources. 149. Because Indian River High m aintains a limited open forum, Indian River High may not deny equal access or a fair opportunity to , or discrim inate against, any students who seek to con duct a m eeting within the lim ited open forum on the basis of religious, political, philosophical, or other content or viewpoint of the speech at such meeting. 150. These Defendants violated the Equal Access Act by discriminating against A.E.P. and denying her equal access to Indian Riv er High’s lim ited open forum on the bas is of impermissible content and viewpoint based discrimination.
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151. These Defendants’ violations of A.E.P.’s rights under the Equal Access Act are the actual, direct, and proximate cause of injuries suffered by A.E.P. as alleged herein.
152. Accordingly, Plaintiff A.E.P. requests judgment in her favor against the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown as set forth in the Prayer for Relief.
THIRD CLAIM FOR RELIEF U.S. Constitution Amendment I Denial of Free Speech and Free Association (Brought by Charles Pratt Pursuant to 42 U.S.C. § 1983 Against the School District, the Board of Education, and Mr. Kettrick in his official and individual capacities) 153. Plaintiffs incorporate by reference and r eallege paragraphs 1 to 136 of this Amended Complaint. 154. The above-described acts and omi ssions of the School District, the Board of Education, and Mr. Kettrick violated Charle s’s rights under t he First Amendment to the United States Constitution as applied to the states by the Fourteenth Amendment, in that: a. These Defendants abrid ged Charles’s freedom of speech and freedom of association; b. These Defendants discriminated against Charles based on the content and viewpoint of his expression and expressive association; and c. These Defendants created and m aintained a lim ited public forum for student expression and association, from which they excluded Charles in a manner that constitutes im permissible content-based and viewpoint-base d discrimination. These Defendants’ restrictions on e xpression and
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association were unreasonable in li ght of the purposes served by the forum. 155. Content-discriminatory and viewpoint-discriminatory restrictions on s peech by a school district or its offi cials or e mployees against a student based on hi s or her expression o f support for lesbian, gay, bisexual, an d/or transgender individuals bears no substa ntial or rationa l relationship to any compelling, important, or legitimate government interest. 156. These Defendants’ violations of the First Am endment are the actual, direct and proximate cause of injuries suffered by Charles as alleged herein. 157. Accordingly, Plaintiff Charles Pratt reque sts judgment in his favor against th e School District, the Board of Education, and Mr. Kettrick as set forth in the Prayer for Relief.
FOURTH CLAIM FOR RELIEF U.S. Constitution Amendment I Denial of Free Speech and Free Association (Brought by A.E.P. Pursuant to 42 U.S.C. § 1983 Against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities, and Mr. Brown in his individual capacity) 158. Plaintiffs incorporate by reference and r eallege paragraphs 1 to 136 of this Amended Complaint. 159. The above-described acts and omi ssions of the School District, the Board of Education, Mr. Kettrick, Mr. Dec ker, and Mr. Br own violated A.E.P.’s rights unde r the First Amendment to the United States Constitution as applied to th e states by the Fourteenth Amendment, in that: a. These Defendants abrid ged A.E.P.’s freedom of speech and freedom of association;
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b. These Defendants discrim inated against A.E.P. based on the content and viewpoint of her expression and expressive association; and
c. These Defendants created and m aintained a lim ited public forum for student expression and association, from which they excluded A.E.P. in a manner that constituted imperm issible content-based and viewpoint-based discrimination. Defendants’ restric tions on expression and association were unreasonable in light of the purposes served by the forum.
160. Content-discriminatory and viewpoint-discriminatory restrictions on spe ech by a school district or its offi cials or e mployees against a student based on hi s or her expression o f support for lesbian, gay, bisexual, an d/or transgender individuals bears no substa ntial or rationa l relationship to any compelling, important, or legitimate government interest.
161. These Defendants’ violations of the First Am endment are the actual, direct and proximate cause of injuries suffered by A.E.P. as alleged herein.
162. The public interest will be vindicated by pr otecting student expression and association in accordance with the First Amendment.
163. Accordingly, Plaintiff A.E.P. requests judgment in her favor against the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown as set forth in the Prayer for Relief.
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FIFTH CLAIM FOR RELIEF U.S. Constitution Amendment XIV Denial of Equal Protection on the Basis of Sexual Orientation (Brought by Charles Pratt Pursuant to 42 U.S.C. § 1983 Against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities, and Mr. Davis, Ms. Turner, Ms. Gray, Ms. Henderson and Mr. Moore in their individual
capacities) 164. Plaintiffs incorporate by reference and r eallege paragraphs 1 to 136 of this Amended Complaint. 165. The above-described acts and omi ssions of the School District, the Board of Education, Mr. Kettrick, Mr. De cker, Mr. Davis, Ms. Turner, Ms. Gra y, Ms. Henderson, and Mr. Moore violated Charles’ s clearly established ri ghts under the Equal Pr otection Clause of the Fourteenth Amendment to the United States Constitution in that:
a. These Defendants intentionally discriminated against Charles on the basis of sexual orientation and/or because of Charles’s membership in a class of people defined as lesbian, gay and/or bisexual;
b. Without even a rational basis or legi timate government interest, and based on invidious anim us, these Defendant s intentionally treated Charles differently than other sim ilarly situated students on the basis of sexual orientation.
166. These Defendants’ violations of Charles’s rights under the Fourteenth Ame ndment are the actual, direct, and proximate cause of injuries suffered by Charles as alleged herein.
167. Accordingly, Plaintiff Charles Pratt reque sts judgment in his favor against th e School District, the Board of Education, Mr. Kett rick, Mr. Decker, Mr. D avis, Ms. Turner, Ms. Gray, Ms. Henderson, and Mr. Moore, as set forth in the Prayer for Relief.
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SIXTH CLAIM FOR RELIEF U.S. Constitution Amendment XIV Denial of Equal Protection on the Basis of Sex (Brought by Charles Pratt Pursuant to 42 U.S.C. § 1983 Against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities, and Mr. Davis, Ms. Turner, Ms. Gray, Ms. Henderson, and Mr. Moore in their individual
capacities) 168. Plaintiffs incorporate by reference and r eallege paragraphs 1 to 136 of this Amended Complaint. 169. The above-described acts and omi ssions of the School District, the Board of Education, Mr. Kettrick, Mr. Decke r, Mr. Davis, Ms. Turner, Ms. Gray, Ms. Henders on and Mr. Moore violated Charles’ s clearly established ri ghts under the Equal Pr otection Clause of the Fourteenth Amendment to the United States Constitution in that:
a. These Defendants intentionally discriminated against Charles (i) o n the basis of sex (ii) because of Charles’s m embership in a cl ass of people defined as males, (iii) because of Charles’s membership in a class of people defined as t hose who do not conform to sexist stereotypes, and/or (iv) because of Charles’s mem bership in a class of people defi ned as those males who do not conform to sexist stereotypes;
b. Without even a rational basis or legi timate government interest, and based on invidious anim us, these Defendant s intentionally treated Charles differently than other similarly situated students on the basis of sex.
170. These Defendants’ violations of Charles’s rights under the Fourteenth Ame ndment are the actual, direct, and proximate cause of injuries suffered by Charles as alleged herein.
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171. Accordingly, Plaintiff Charles Pratt reque sts judgment in his favor against th e School District, the Board of Education, Mr. Kett rick, Mr. Decker, Mr. D avis, Ms. Turner, Ms. Gray, Ms. Henderson, and Mr. Moore, as set forth in the Prayer for Relief.
SEVENTH CLAIM FOR RELIEF Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.
Discrimination Based on Sex (Brought by Charles Pratt Pursuant to 20 U.S.C. § 1681 et seq.
Against the School District and the Board of Education) 172. Plaintiffs incorporate by reference and reallege paragraphs 1 to 136 of this Amended Complaint. 173. Upon information and belief, the School District and the Board of Education receive, and have received at all relevant times, federal financial assistance. 174. The above-described acts and om issions by the School District and the Board of Education, including but not lim ited to certain acts and om issions carried out by and through School District officials and employees, viol ated Charles’s rights under Title IX by discriminating against him on the basis of sex. 175. School District officials including Mr . James Kettrick had actual notice that harassment based on sex was so severe, pervasive, and objectively offensive that it crea ted a hostile climate based on sex that deprived C harles of access to th e educational programs, activities, opportunities, and other benefits of the School Di strict, including but not lim ited to a high school education and diploma. 176. The School District, its policym akers, officials, and other em ployees exhibited deliberate indifference to the har assment of Ch arles based on sex in violation o f Title IX.
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Through their unlawful deliberate indifference, the School District and the Board of Education caused Charles to be subjected to the sex discrimination and sexist harassment herein alleged.
177. The School District’s and the Board of Education’s violations of Title IX were the actual, direct and proximate cause of injuries suffered by Plaintiffs as alleged herein.
178. Accordingly, Plaintiff Charles Pratt reque sts judgment in his favor against th e School District and the Board of Education as set forth in the Prayer for Relief.
EIGHTH CLAIM FOR RELIEF New York Constitution Article 1 § 8
Denial of Free Speech (Brought by A.E.P. Pursuant to New York law Against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities,
and Mr. Brown in his individual capacity) 179. Plaintiffs incorporate by reference and r eallege paragraphs 1 to 136 of this Amended Complaint. 180. The above-described acts and omi ssions of the School District, the Board of Education, Mr. Kettrick, Mr. Decker , and Mr. Brown violated A.E.P.’s rights under t he New York Constitution, Article I § 8, in that:
a. These Defendants abrid ged A.E.P.’s freedom of speech and freedom of association;
b. These Defendants discrim inated against A.E.P. based on the content and viewpoint of her expression and expressive association; and
c. These Defendants created and m aintained a lim ited public forum for student expression and association, from which they excluded A.E.P. in a manner that constituted imperm issible content-based and viewpoint-based discrimination. These Defendants’ restrictions on expression and
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association were unreasonable in li ght of the purposes served by the forum. 181. Content-discriminatory and viewpoint-discriminatory restrictions on spe ech by a school district or its offi cials or e mployees against a student based on hi s or her expression o f support for lesbian, gay, bisexual, an d/or transgender individuals bears no substa ntial or rationa l relationship to any compelling, important, or legitimate government interest. 182. These Defendants’ violations of A.E.P.’s rights unde r the New York Constitution are the actual, direct, and proximate cause of injuries suffered by A.E.P. as alleged herein. 183. The public i nterest and the rights of ot her students, including stude nts similarly situated to A.E.P., will be served and vindi cated by a judgment prot ecting A.E.P.’s student expression and association in accordance with the New York Constitution. 184. Accordingly, Plaintiff A.E.P. requests judgment in her favor against the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown in the for m of equitable relief as set forth in the Prayer for Relief.
NINTH CLAIM FOR RELIEF New York Human Rights Law, New York Executive Law § 296(6)
Discrimination on the Basis of Sexual Orientation (Brought by Charles Pratt Pursuant to the New York Human Rights Law Against Ms. Turner,
Ms. Gray, Ms. Henderson, Mr. Davis in their individual capacities) 185. Plaintiffs incorporate by reference and reallege paragraphs 1 to 136 of this Amended Complaint. 186. The above-described act s and omissi ons of Defendants denied Charles the use of School District facilities and per mitted harassment against him based on sexual orientation, in violation of Ne w York Human Ri ghts Law § 296(4). Acti ng recklessly and with the intent to
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engage in wrongful conduct, Ms. Tur ner, Ms. Gray, Ms. Henderson and Mr. Davis aided, abetted, incited, compelled and/or coerced these acts and omissions, in violation of New Yor k Human Rights Law § 296(6).
187. The violations of Charles’s rights under the New York Human Rights Law by Ms. Turner, Ms. Gray, Ms . Henderson, and Mr. Da vis are the actual, direct, and proxi mate cause of injuries suffered by Charles as alleged herein.
188. By this action, Charles seeks to vindi cate the public inte rest by enforcing fundamental state civil rights protections for students, including students who face discrimination and harassment at school based on sexual orientation.
189. Accordingly, Plaintiff Charles Pratt re quests judgment in his favor against Defendants Ms. Turner, Ms. Gray, Ms. Henderson, and Mr. Davis, as set forth in the Prayer for Relief.
TENTH CLAIM FOR RELIEF New York Human Rights Law, New York Executive Law § 296(6)
Discrimination on the Basis of Sex (Brought by Charles Pratt Pursuant to the New York Human Rights Law Against Ms. Turner,
Ms. Gray, Ms. Henderson, and Mr. Davis in their individual capacities) 190. Plaintiffs incorporate by reference and reallege paragraphs 1 to 136 of this Amended Complaint. 191. The above-described act s and omissi ons of Defendants denied Charles the use of School District facilities and permitted harassment against him based on se x, in violation of New York Human Rights La w § 296(4). Acting recklessly and wi th the intent to engage i n wrongful conduct, Ms. Turner, Ms. Gray, Ms. Henderson and Mr. Davis aided, abetted, incited, compelled and/or coerced these acts and omissions, in violation of New York Human Rights Law § 296(6).
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192. The violations of Charles’s rights under the New York Human Rights Law by Ms. Turner, Ms. Gray, Ms . Henderson, and Mr. Da vis are the actual, direct, and proxi mate cause of injuries suffered by Charles as alleged herein.
193. By this action, Charles seeks to vindi cate the public inte rest by enforcing fundamental state civil rights protections for students, including students who face discrimination and harassment at school based on sex.
194. Accordingly, Plaintiff Charles Pratt re quests judgment in his favor against Defendants Ms. Turner, Ms. Grey, Ms. Henderson, and Mr. Davis, as set forth in the Prayer for Relief.
ELEVENTH CLAIM FOR RELIEF New York Civil Rights Law §§ 40-c and 40-d Discrimination Based on Sexual Orientation (Brought by Charles Pratt Pursuant to the New York Civil Rights Law Against Ms. Turner, Ms. Grey, Ms. Henderson, and Mr. Davis in their individual capacities) 195. Plaintiffs incorporate by reference and r eallege paragraphs 1 to 136 of this Amended Complaint. 196. The above-described acts and omissions of Defendants Ms. Turner, Ms. Grey, Ms. Henderson, and Mr. Da vis subjected Charles to discrimination based on sexual orie ntation in the exercise of his civil rights under New York law. 197. The acts and om issions of Defendants Ms. Turner, Ms. Grey, Ms. He nderson, and Mr. Davis also aided and incited unlawful discrimination against Charles by others based on sexual orientation in the exercise of his civil rights und er New York law. The acts and o missions were undertaken recklessly and with the intent to engage in wrongful conduct.
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198. The violations of Charle s’s rights under the Ne w York Civil Rights Law are the actual, direct, and proximate cause of injuries suffered by Charles as alleged herein.
199. Plaintiffs have com plied with the p rocedural requirements of New Yo rk Civil Rights Law § 40-d by serving notice upon the st ate attorney general at or before the commencement of the action.
200. By this action, Charles seeks to vindi cate the public inte rest by enforcing fundamental state civil rights protections for students, including students who face discrimination and harassment at school based on sexual orientation.
201. Accordingly, Plaintiff Charles Pratt re quests judgment in his favor against Defendants Ms. Turner, Ms. Gray, Ms. Henderson, and Mr. Davis, as set forth in the Prayer for Relief.
TWELFTH CLAIM FOR RELIEF New York Civil Rights Law §§ 40-c and 40-d
Discrimination Based on Sex (Brought by Charles Pratt Pursuant to the New York Civil Rights Law against Ms. Turner, Ms.
Grey, Ms. Henderson, Mr. Davis, and Mr. Moore in their individual capacities) 202. Plaintiffs incorporate by reference and r eallege paragraphs 1 to 136 of this Amended Complaint. 203. The above-described acts and omissions of Defendants Ms. Turner, Ms. Grey, Ms. Henderson, Mr. Davis , and Mr. Moore subjecte d Charles to discri mination based on sex in the exercise of his civil rights under New York law. 204. The acts and omissions of Defendants Ms. Turner, Ms. Gre y, Ms. Henderson, Mr. Davis, and Mr. Moore also aide d and incited unlawful discrimination against Charles by others
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based on sex in the exercise of his civil rights und er New York law. The acts and omissions were undertaken recklessly and with the intent to engage in wrongful conduct.
205. The violations of Charle s’s rights under the Ne w York Civil Rights Law are the actual, direct, and proximate cause of injuries suffered by Charles as alleged herein.
206. Plaintiffs have com plied with the p rocedural requirements of New Yo rk Civil Rights Law § 40-d by serving notice upon the st ate attorney general at or before the commencement of the action.
207. By this action, Charles seeks to vindi cate the public inte rest by enforcing fundamental state civil rights protections for st udents, including those who face di scrimination and harassment at school based on sex.
208. Accordingly, Plaintiff Charles Pratt re quests judgment in his favor against Defendants Ms. Turner, Ms. Grey, Ms. Henderson, Mr. Davis, and Mr. Moore, as set forth in the Prayer for Relief.
THIRTEENTH CLAIM FOR RELIEF New York Human Rights Law, New York Executive Law § 296 Discrimination on the Basis of Perceived Sexual Orientation and/or Antigay Animus (Brought by A.E.P. Pursuant to the New York Human Rights Law against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities,
and Mr. Brown in his individual capacity) 209. Plaintiffs incorporate by reference and r eallege paragraphs 1 to 136 of this Amended Complaint. 210. The above-described acts and om issions of the School District and the Board of Education violated A.E.P.’s ri ght to use School Di strict facilities based on perceived sexual orientation and/or antigay ani mus, in viola tion of Ne w York Human Rights La w § 296(4).
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Defendants Mr. Kettrick, Mr. Decke r and Mr. Brown aided, abetted, inc ited, compelled and/or coerced these acts and omissions, in violation of New York Human Rights Law § 296(6).
211. Defendants’ violations of A.E.P.’s righ ts under the New York Human Rights Law are the actual, direct and proximate cause of injuries suffered by A.E.P. as alleged herein.
212. By this action, A.E.P. seeks to vindi cate the public interest by preventing t he School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown from denying any other Sc hool District students the use of Sch ool District facilities based on percei ved sexual orientation and/or antigay animus.
213. Accordingly, Plaintiff A.E.P. requests judgment in her favor against the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown in the for m of equitable relief as set forth in the Prayer for Relief.
FOURTEENTH CLAIM FOR RELIEF New York Civil Rights Law § 40-c
Discrimination on the Basis of Perceived Sexual Orientation and/or Antigay Animus (Brought by A.E.P. Pursuant to the New York Civil Rights Law against the School District, the Board of Education, Mr. Kettrick and Mr. Decker in their official and individual capacities, and
Mr. Brown in his individual capacity) 214. Plaintiffs incorporate by reference and r eallege paragraphs 1 to 136 of this Amended Complaint. 215. The above-described acts and omissions of the School District, the Board of Education, Mr. Kettric k, Mr. Dec ker, and Mr . Brown violated A.E.P.’s civil rights based on perceived sexual orientation and/or a ntigay animus, in violati on of Ne w York Civil Rights Law § 40-c. 216. Defendants’ violations of A.E.P.’s rights under the New York Civil Rights Law ar e the actual, direct and proximate cause of injuries suffered by A.E.P. as alleged herein.
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217. By this action, A.E.P. seeks to vindi cate the public interest by preventing t he School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown from denying any other School District students the use of Scho ol District facilities based on sexual orientati on and/or antigay animus.
218. Plaintiffs have com plied with the p rocedural requirements of New Yo rk Civil Rights Law § 40-d by serving notice upon the st ate attorney general at or before the commencement of the action.
219. Accordingly, Plaintiff A.E.P. requests judgment in her favor against the School District, the Board of Education, Mr. Kettrick, Mr. Decker, and Mr. Brown in the for m of equitable relief as set forth in the Prayer for Relief.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs Charles P ratt and A. E.P. request judgm ent in their favor and pray for relief against Defendants the Indian River Central School D istrict, the Indian River Central School District Board of Educati on, Mr. Jam es Kettrick, Mr . Troy Decker, Mr. Jay Brown, Mr. John Davis, Ms. Am able Turner, Ms. Kenda Gray, Ms. Patricia Henderson, and Mr. Brian Moore as follows: 1. For an order declaring the righ ts, obligations, and other legal relations between Defendants and Plaintiff A.E.P.—na mely, that th e refusal by the School District, the Board of Education, Mr. Kettrick, Mr. De cker, and Mr. Brown to grant A.E.P. perm ission to form a recognized student gay-straight alliance at Indian River High Sc hool with rights and benefits equal to those afforded to other student organi zations at Indian Rive r High School, violated A.E.P.’s rights under the federal E qual Access Act, 20 U.S.C. § 4071 et seq., the First Amendment to the Un ited States Constitution as app lied to th e states by the Fourteen th
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Amendment, the New York Constitution, Articl e 1 § 8, New York Hum an Rights Law § 296, and New York Civil Rights Law § 40-c;
2. For a permanent injunction restraining and enjoining th e School District and the Board of Education, as well as Mr. Kettrick, Mr. Decker, Mr. Br own, and other School District or Board of Education directors, officers, agents, affiliates, subsidiaries, servants, employees, and all other persons or entities in active concert, privity, or participation with them, from (a) directly or indirectly preventing A.E.P. f rom forming or maintaining a student gay-straigh t alliance at Indian River High School, or (b) directly or i ndirectly denying to the student gay-straight alliance, or to A.E.P. as a stude nt founder, member, and/or leader of that alliance, full access to and use of all School District faci lities, benefits, rights, and privil eges on an equal basis to that afforded to other students and student groups at Indian River High School;
3. For an order granting Plaintiff Charles Pratt nominal and compensatory damages against Defendants the S chool District, the Board of Education, a nd Mr. Kettrick for violations of the Equal Access Act, 20 U.S.C. § 4071 et seq.; the First Amendment to the U.S. Constitution; and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution;
4. For an order granting Plaintiff Charles Pratt nominal and compensatory damages against Defendants Mr. Decker, Mr. Davis, Ms. Turner, Ms. Gray, Ms. Henderson, and Mr. Moore for violations of the Equa l Protection Clause of the Four teenth Amendment to the U.S. Constitution;
5. For an order granting Plaintiff Charles Pratt nominal and compensatory damages and other appropriate relief ag ainst Defendants Mr. Davis, Ms. Turner, Ms. Gray, and Ms. Henderson for violations of the New York Human Rights Law;
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6. For an order granting Plaintiff Charles Pratt nominal and compensatory damages and other appropriate relief ag ainst Defendants Mr. D avis, Ms. Turner, Ms. Gray, Ms. Henderson, and Mr. Moore for violations of the New York Civil Rights Law;
7. For an order granting Plaintiff Charles Pratt punitive damages against Defendant Kettrick for violations of the Equal Access Act, 20 U.S.C. § 4071 et seq.; the First Amendment to the U.S. Constitu tion; and the Eq ual Protection Clause of the Fourteenth Amendment to the U.S. Constitution;
8. For an order granting Plaintiff Charles Pratt punitive damages against Defendants Mr. Decker, Mr. Davis, Ms. Turner, Ms. Gray, Ms. Henderson and Mr. Moore for violations of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution;
9. For an order granting Plaintiff Charles Pratt nominal and compensatory damages against Defendants the S chool District and the Boar d of Education for violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.
10. For an o rder granting Plaintiff A.E.P. nominal damages and other appropriate relief against Defendants the School District, th e Board of Education, Mr . Kettrick, Mr. Decker, and Mr. Brown for violations of th e Equal A ccess Act, 20 U.S.C. § 4071 et seq.; the First Amendment to the U.S. Constitution; and the New York Human Rights and Civil Rights Laws.
11. For an order granting P laintiff A.E.P. punitive dam ages against Def endants Mr. Kettrick, Mr. Decker, and Mr. Brown for violations of the Equal Access Act, 20 U.S.C. § 4071 et seq.; and the First Amendment to the U.S. Constitution.
12. For interest, where appropriate, on any damages awarded to any plaintiff; 13. For attorneys’ fees and costs incurred in the prosecution of this action pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws;
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14. For any other and further relief as the Court may deem just and proper.
Dated: February 18, 2010 New York, NY

s/ Thomas W. Ude, Jr.
Thomas W. Ude, Jr., Bar Number 515867 Michael Kavey, Bar Number 515452 Hayley Gorenberg, Bar Number 515453
Attorneys For Plaintiffs
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 120 Wall Street, Suite 1500 New York, NY 10005-3904 Telephone: (212) 809 - 8585 Facsimile: (212) 809 - 0055 E-mail: tude@lambdalegal.org E-mail: mkavey@lambdalegal.org E-mail: hgorenberg@lambdalegal.org

Adam T. Humann Maura M. Klugman
Attorneys for Plaintiffs
KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022-4611 Telephone: (212) 446 - 4800 Facsimile: (212) 446 - 4900 E-mail: adam.humann@kirkland.com E-mail: maura.klugman@kirkland.com

58

 
 Case 7:09-cv-00411-GTS-TWD Document 68 Filed 08/13/10 Page 1 of 7

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
SYRACUSE DIVISION

CHARLES PATRICK PRATT and A.E.P. through her parents and next friends Bobbi Lynn Petranchuk and Todd Edward Petranchuk,
Plaintiffs,
v.

Case No.: 7:09-cv-411 (GTS/GHL)

INDIAN RIVER CENTRAL SCHOOL DISTRICT; INDIAN RIVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION; JAMES KETTRICK, Superintendent of Indian River Central School District, in his official and individual capacities; TROY DECKER, Principal of Indian River High School, in his official and individual capacities; and JAY BROWN, JOHN DAVIS, KENDA GRAY, AMABLE TURNER, PATRICIA HENDERSON, and BRIAN MOORE, in their individual capacities,
Defendants. _______________________________________

UNITED STATES’ MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE

The United States hereby moves for leave to participate as amicus curiae in the abovecaptioned matter.1 If granted leave, the United States will file the Memorandum attached as Exhibit B. In support of its motion, the United States asserts as follows:

1 The United States’ Certificate of Conferral is attached as Exhibit A.
1

Case 7:09-cv-00411-GTS-TWD Document 68 Filed 08/13/10 Page 2 of 7
1. Plaintiffs filed their First Amended Complaint on February 19, 2010, after obtaining leave from the Court. Plaintiff Charles Patrick Pratt1 alleges that the Indian River Central School District, its Board of Education, Superintendent, agents, and employees (collectively, “Defendants”) discriminated against him on the basis of sex in violation of Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681 et seq. (“Title IX”), and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983.2 (First Am. Compl. ¶¶ 168-178.)
2. On March 5, 2010, Defendants filed their Answer to the First Amended Complaint. On June 11, 2010, Defendants filed a Motion to Dismiss/Motion for Summary Judgment and Memorandum of Law in Support. Plaintiffs responded on June 28, 2010, with an Opposition and Memorandum of Law (“Plaintiffs’ Memorandum”). On July 13, 2010, Defendants submitted their Reply and Memorandum of Law in Support (“Defendants’ Reply Memorandum”).
3. The Defendants argue, inter alia, that Pratt failed to state a claim under Title IX or the Equal Protection Clause. (Defs.’ Mem. at 12-22; Defs.’ Reply Mem. at 14-17.) The United States respectfully requests to participate as amicus curiae to address three legal arguments posited by Defendants that are not supported by the law.
1 Pratt’s sister A.E.P., through her parents and next friends Bobbi Lynn Petranchuk and Todd Edward Petranchuk, is also a party to this suit. Pratt is the only plaintiff named in the Title IX and Equal Protection Clause claims implicated by the United States’ participation as amicus curiae. 2 The Plaintiffs assert other claims, however, the United States’ amicus brief is limited to Plaintiff Charles Patrick Pratt’s Title IX and Equal Protection Clause claims.
2

Case 7:09-cv-00411-GTS-TWD Document 68 Filed 08/13/10 Page 3 of 7
4. The United States plays a central role in the enforcement of Title IX. Under Title IX and its implementing regulations no individual may be discriminated against on the basis of sex in any educational program or activity receiving Federal financial assistance. 20 U.S.C. §§ 1681 et seq.; 34 C.F.R. §§ 106.1, 106.31(a)(b). The U.S. Department of Education is charged with promulgating regulations implementing Title IX and ensuring that recipients of federal funds comply with the statute and regulations. 20 U.S.C. § 1682. The U.S. Department of Justice, through its Civil Rights Division, coordinates the implementation and enforcement of Title IX by the U.S. Department of Education and other executive agencies. Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (1980); 28 C.F.R. § 0.51 (1998).
5. The United States Department of Justice also has significant responsibilities for the enforcement of the Civil Rights Act of 1964, which prohibits Equal Protection violations on the basis of sex, Title IV, 42 U.S.C. § 2000c-6, and the Attorney General may intervene in any lawsuit in federal court seeking relief from a denial of equal protection under the Fourteenth Amendment. 42 U.S.C. § 2000h-2.
6. The United States has intervened or participated as amicus curiae in numerous lawsuits involving claims of harassment based on sex under Title IX and the Equal Protection Clause. See, e.g., Lopez v. Metro Gov’t of Nashville & Davidson County, 3:07-CV-00799, Order Granting Intervention (M.D. Tenn. Nov. 4, 2008) (attached to amicus Memorandum as Ex. A); A.B. v. Rhinebeck Central Sch. Dist., No. 03-CV-3241 (S.D.N.Y. Aug. 25, 2004) (attached to amicus Memorandum as Ex. B); Lovins v. Pleasant Hill Pub. Sch. Dist., No. 99-0550-CV (W.D. Mo. July 31, 2000) (attached to amicus Memorandum as Ex. C); Putnam v. Bd. of Ed. of Somerset Indep. Schs., No. 00-145 (E.D. Ky. July 28, 2000) (attached to amicus Memorandum Ex. D).
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7. The Defendants raise questions regarding the proper interpretation and application of Title IX and the Equal Protection Clause to harassment based on sex in primary and secondary schools. The United States has a strong interest in ensuring that these two federal laws are interpreted and applied correctly given its responsibility for enforcing them.
8. District courts have the discretion to allow nonparties to participate as amicus curiae. In re Bayshore Ford Truck Sales, Inc., 471 F.3d 1233, 1249 n.34 (11th Cir. 2006) (“[D]istrict courts possess the inherent authority to appoint ‘friends of the court’ to assist in their proceedings.”); Yip v. Pagano, 606 F. Supp. 1566, 1568 (D.N.J. 1985) (district courts have the discretion to allow nonparties to participate as amicus curiae and should consider the timeliness and usefulness of the information proffered); United States v. Davis, 180 F. Supp. 2d 797, 800 (E.D. La. 2001) (“Generally, courts have exercised great liberality in permitting an amicus curiae to file a brief in a pending case, and, with further permission of the court, to argue the case and introduce evidence.”); Strougo v. Scudder, No. 96 CIV 2136, 1997 WL 473566, at *3 (S.D.N.Y. Aug. 18, 1997) (attached at Ex. C) (district courts “have discretion to permit participation of amici where such participation will not prejudice any party and may be of assistance to the court”). The United States’ amicus Memorandum provides information that would be useful to the Court in its deliberations over issues raised by Defendants and Plaintiffs. Courts have deemed amicus participation useful when the party has a special interest in the issues raised in the litigation2 or expertise in the relevant area of law.3 As stated above, the
2 See Ellsworth Assocs., Inc. v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996) (“Because the Court finds that the non-party movants have a special interest in this litigation as well as a familiarity and knowledge of the issues raised therein that could aid in the resolution of this case, the Court grants the non-party movants’ Motions to participate as amicus curiae.”); Martinez v. Capital Cities/ABC-WPVI, 909 F. Supp. 283, 286 (E.D. Pa. 1995) (soliciting EEOC’s amicus
4

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United States has both a special interest and expertise concerning Title IX and the Equal Protection Clause. Moreover, the United States’ Motion does not prejudice the parties because the United States simply requests an opportunity to address the correct legal standards governing claims for harassment based on sex under Title IX and the Equal Protection Clause. Finally, the United States’ Motion is timely because it was filed shortly after the Defendants’ Reply (filed July 13, 2010 after receiving an extension from the Court) and before the Court’s ruling on Defendants’ Motion to Dismiss/Motion for Summary Judgment.
participation to explain significance of letter it sent to plaintiff in employment discrimination case). 3 See Yip, 606 F. Supp. at 1568 (the Leadership Group of the United States House of Representatives Committee on the Judiciary was allowed to participate as amicus curiae because its expertise allowed it to present “a helpful analysis of the law of legislative immunities and of the functions and procedures of Congressional committees”; Strougo, 1997 WL 473566, at *3 (Investment Company Industry was allowed to participate as amicus curiae because its expertise in the investment industry allowed it to present policy arguments that illuminated the legal issues); Pa. Envtl. Def. Found. v. Bellefonte Borough, 718 F. Supp. at 431, 434-35 (M.D. Pa. 1989) (permitting United States’ amicus participation based on its “primary responsibility for insuring that the Clean Water Act is properly enforced”).
5

Case 7:09-cv-00411-GTS-TWD Document 68 Filed 08/13/10 Page 6 of 7

Wherefore, the United States respectfully requests that the Court grant leave to participate in this litigation as amicus curiae.

Dated: August 13, 2010
RICHARD S. HARTUNIAN United States Attorney Northern District of New York

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

/s/ William H. Pease ___________________________ WILLIAM H. PEASE (Bar Roll No. 102338) Assistant United States Attorney

AMY I. BERMAN EMILY H. McCARTHY KRISHNA K. JUVVADI CHRISTOPHER S. AWAD Educational Opportunities Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Ave., NW Patrick Henry Building, Suite 4300 Washington, D.C. 20530 Tel: (202) 305-3186 Fax: (202) 514-8337

6

Case 7:09-cv-00411-GTS-TWD Document 68 Filed 08/13/10 Page 7 of 7
CERTIFICATE OF SERVICE
I hereby certify that on this 13th day of August, 2010, I served copies of the foregoing
pleading to counsel of record via the United States District Court for the Northern District of
New York’s electronic filing system:
Frank W. Miller The Law Firm of Frank W. Miller 6575 Kirkville Road East Syracuse, New York 13057 Facsimile: (315) 234-9908 E-mail: fmiller@fwmillerlawfirm.com
Thomas W. Ude, Jr. Hayley Gorenberg Lambda Legal Defense and Education Fund, Inc. 120 Wall Street, Suite 1500 New York, NY 10005-3904 Facsimile: (212) 809-0055 E-mail: tude@lambdalegal.org
Vickie Reznik Adam T. Humann Maura M. Klugman Kirkland & Ellis LLP Citigroup Center 153 East 53rd Street New York, NY 10022-4611 Facsimile: (212) 446-4900 E-mail: vickie.reznik@kirkland.com
/s/ William H. Pease __________________________ William H. Pease (Bar Roll No. 102338) Assistant United States Attorney
7

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 Case 7:09-cv-00411-GTS-TWD Document 151 Filed 06/21/13 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

CHARLES PATRICK PRATT and A.E.P., through her parents Bobbi Lynn Petranchuk and Todd Edward Petranchuk,

Plaintiff, vs.

CIVIL NO. 7:09-cv-411 (GTS/TWD)

INDIAN RIVER CENTRAL SCHOOL DISTRICT,

Defendants.

JUDGMENT DISMISSING ACTION BY REASON OF SETTLEMENT The Court having been advised by counsel that the parties in this action have entered into an agreement in settlement of all claims in this action, and that they reasonably anticipate finalizing their agreement shortly, following which this action will be discontinued, with prejudice, by stipulation pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure. Counsel has al so advised that no infant or incompetent is a party to this action. Based upon this development, I find that it is not necessary for this action to remain on the calendar of the Court. It is therefore hereby ORDERED that this action is DISMISSED in its entirety without prejudice pursuant to the procedure as set forth in L.R6. 8.2(a) of the Local Rules of this court. This judgment is issued without prejudi ce to the right of the parties to secure reinstatement of the case within thirty (30) days after the date of this judgment by making a showing that the settlement was not, in fact, consummated; and in the

Case 7:09-cv-00411-GTS-TWD Document 151 Filed 06/21/13 Page 2 of 2

event that no request is made for reinstatement within thirty (30) days of the date of this judgment, the dismissal of this case shall thereafter be with prejudice.

Dated:

June 21, 2013 Syracuse, New York

 
 Case 7:09-cv-00411-GTS-TWD Document 155 Filed 08/08/13 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

CHARLES PATRICK PRATT and A.E.P. through her parents and next friends Bobbi Lynn Petranchuk and Todd Edward Petranchuk,
Plaintiffs,

7:09:..cv-411 (GTS/TWD) ECF Case

- vs. -
INDIAN RIVER CENTRAL SCHOOL DISTRICT; INDIAN RIVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION; JAMES KETTRICK, Superintendent of Indian River Central School District, in his official and individual capacities; TROY DECKER, Principal of Indian River High School, in his official and individual capacities; and JAY BROWN, JOHN DAVIS, KENDA GRAY, AMABLE TURNER, PATRICIA HENDERSON, and BRIAN MOORE, in their individual capacities,

STIPULATION OF DISMISSAL WITH PREJUDICE

Defendants.

IT IS HEREBY STIPULATED AND AGREED by, on the one hand Charles Patrick Pratt and Ashley Petranchuk (together, the "Plaintiffs") and, on the other hand, Indian River Central School District; Indian River Central School District Board of Education; James Kettrick, Superintendent ofIndian River Central School District, in his official and individual capacities; Troy Decker, Principal of Indian River High School, in his official and individual capacities; Jay Brown; John Davis; Kenda Gray; Amable Turner; Patricia Henderson; and Brian Moore (collectively, the "Defendants"), by and through their undersigned counsel, that the abovecaptioned case be dismissed with prejudice in its entirety without costs to any party, pursuant to the terms and conditions of the parties' Settlement Agreement and Mutual General Release, and that no party hereto is an infant or incompetent.

Case 7:09-cv-00411-GTS-TWD Document 155 Filed 08/08/13 Page 2 of 2 August 8

 
 For Educational Use Only Pratt v. Indian River Cent. School Dist., 803 F.Supp.2d 135 (2011)

803 F.Supp.2d 135 United States District Court,
N.D. New York.
Charles Patrick PRATT; and A.E.P, through her parents and next friends Bobbi Lynn Petranchuk
and Todd Edward Petranchuk, Plaintiffs, v.
INDIAN RIVER CENT. SCH. DIST.; James Kettrick, Superintendent of Indian River Cent. Sch. Dist.; Troy Decker, Principal of Indian River High School; Jay Brown; John Davis; Kenda Gray; Amable Turner; Patricia Henderson; and Brian
Moore, Defendants, United States of America, Amicus.
No. 7:09–CV–0411 (GTS/GHL). | March 29, 2011.
Synopsis Background: High school student and his younger sister, through her parents and next friends, brought action against school district, its board of education and its superintendent, high school principal, and several other individual school employees, alleging violations of Equal Access Act (EAA), § 1983, Title IX, New York Human Rights Law (NYHRL), and New York Civil Rights Law (NYCRL), as related to defendants’ treatment of student and his sister based on student’s sexual orientation. Defendants moved to dismiss or, in alternative, for summary judgment.
Holdings: The District Court, Glenn T. Suddaby, J., held that:
[1] only sister’s claim under New York constitution, but not plaintiffs’ other claims under NYHRL or NYCRL, were subject to statutory notice of claim requirements;
[2] student’s claims under NYHRL and NYCRL were timely;
[3] NYHRL did not apply against school district in relation to students’ discrimination claims;
[4] students’ allegations showed that defendants’ actions placed them in fear of physical injury, for purposes of NYCRL claims;

[5] allegations were sufficient to state Title IX claim for harassment based on nonconformity with sex stereotypes;
[6] allegations were sufficient to state claim for violation of Equal Protection Clause; and
[7] allegations were sufficient to state claims under First Amendment and EAA.
Motion granted in part and denied in part.
Attorneys and Law Firms
*139 Kirkland & Ellis LLP, Adam T. Humann, Esq., Maura M. Klugman, Esq., Vickie Reznik, Esq., of Counsel, New York, NY, for Plaintiffs.
Lambda Legal Defense & Education Fund, Hayley J. Gorenberg, Esq., Thomas W. Ude, Jr., Esq., of Counsel, New York, NY, for Plaintiffs.
Law Office of Frank W. Miller, Frank W. Miller, Esq., Michael J. Livolsi, Esq., of Counsel, East Syracuse, NY, for Defendants.
Hon. Richard S. Hartunian, United States Attorney for the Northern District of New York, William H. Pease, Esq., Assistant United States Attorney, of Counsel, Syracuse, NY, for the Government.
Opinion

MEMORANDUM–DECISION and ORDER

Hon. GLENN T. SUDDABY, District Judge.

Currently before the Court—in this civil rights action

filed by Charles Patrick Pratt and A.E.P., through her

parents and next friends Bobbi Lynn Petranchuk and

Todd Edward Petranchuk (“Plaintiffs”) against Indian

River Central School District, the Indian River Central

School District Board of Education, and the eight

above-captioned

individual

Defendants

(“Defendants”)—are the following two motions: (1)

Defendants’ motion to dismiss Plaintiffs’ Complaint for

failure to state a claim upon which relief can be granted,

or, in the alternative, for summary judgment (Dkt. No.

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30); and (2) Defendants’ motion to dismiss Plaintiffs’ Amended Complaint for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment (Dkt. No. 56). For the reasons set forth below, Defendants’ motions are granted in part and denied in part.
I. RELEVANT BACKGROUND
A. Plaintiffs’ Claims On April 8, 2009, Plaintiffs filed their Complaint in this action. (Dkt. No. 1.) On February 18, 2010, Plaintiffs filed an Amended Complaint. (Dkt. No. 47.) Generally, Plaintiffs’ Amended Complaint asserts the following nine civil rights claims against Defendants arising from their treatment of Plaintiff Pratt as a homosexual student at Indian River Central School: (1) the Indian River Central School District (“the District”), the Indian River Central School District Board of Education (“the Board”), and Defendant Kettrick (in his official and individual capacities) violated 20 U.S.C. § 4071 et seq., the Equal Access Act (“EAA”), and 42 U.S.C. § 1983, by maintaining a limited open forum, and denying equal access to that forum on the basis of impermissible content and viewpoint based discrimination; (2) the District, the Board, and Defendant Kettrick (in his official and individual capacities) violated Plaintiff Pratt’s rights to freedom of speech and freedom of association under the First Amendment to the United States Constitution; (3) the District, the Board, Defendants Kettrick and Decker (in their official and individual capacities), and Defendants *140 Davis, Turner, Moore, and Gray (in their individual capacities) denied Plaintiff Pratt equal protection on the basis of his sexual orientation, in violation of his rights under the Fourteenth Amendment to the United States Constitution; (4) the District, the Board, Defendants Kettrick and Decker (in their official and individual capacities), and Defendants Davis, Turner, Moore, and Gray (in their individual capacities) denied Plaintiff Pratt equal protection on the basis of his sex, in violation of his rights under the Fourteenth Amendment to the United States Constitution; (5) the District and the Board discriminated against Plaintiff Pratt on the basis of sex, in violation of his rights under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”); (6) Defendants Turner, Gray, Henderson, and Davis (in their individual capacities) permitted harassment against Plaintiff Pratt based on his sexual orientation, in violation of New York Human Rights Law (“NYHRL”) § 296(6); (7) Defendants Turner, Gray, Henderson, and Davis (in their individual

capacities) permitted harassment against Plaintiff Pratt based on his sex, in violation of NYHRL § 296(6); (8) Defendants Turner, Gray, Henderson, and Davis (in their individual capacities) subjected Plaintiff Pratt to discrimination based on his sexual orientation, in violation of his civil rights under New York Civil Rights Law (“NYCRL”) §§ 40–c and 40–d; and (9) Defendants Turner, Gray, Henderson, Moore, and Davis (in their individual capacities) subjected Plaintiff Pratt to discrimination based on his sex, in violation of his civil rights under NYCRL §§ 40–c and 40–d. (Dkt. No. 47.)
In addition, Plaintiffs’ Amended Complaint asserts the following five civil rights claims against Defendants arising from their treatment of Plaintiff A.E.P. as the younger sister of Plaintiff Pratt, and a student in the District: (1) the District, the Board, Defendants Kettrick and Decker (in their official and individual capacities), and Defendant Brown (in his individual capacity) violated the EAA, and 42 U.S.C. § 1983, by maintaining a limited open forum, and denying equal access to that forum on the basis of impermissible content and viewpoint based discrimination; (2) the District, the Board, Defendants Kettrick and Decker (in their official and individual capacities), and Defendant Brown (in his individual capacity) violated Plaintiff A.E.P.’s rights to freedom of speech and freedom of association under the First Amendment to the United States Constitution; (3) the District, the Board, Defendants Kettrick and Decker (in their official and individual capacities), and Defendant Brown (in his individual capacity) violated Plaintiff A.E.P.’s right to free speech under Article 1 § 8 of the New York State Constitution; (4) the District, the Board, Defendants Kettrick and Decker (in their official and individual capacities), and Defendant Brown (in his individual capacity) violated and continue to violate A.E.P.’s right to use District facilities based on perceived sexual orientation and/or antigay animus, in violation of NYHRL § 296; and (5) the District, the Board, Defendants Kettrick and Decker (in their official and individual capacities), and Defendant Brown (in his individual capacity) violated and continue to violate A.E.P.’s civil rights based on perceived sexual orientation and/or antigay animus, in violation of NYCRL § 40–c. (Dkt. No. 47.)
B. Relevant Procedural History On June 12, 2009, Defendants filed a motion to dismiss or, in the alternative, a motion for summary judgment. (Dkt. No. 30.) Briefing on Defendants’ motion was stayed for approximately one year pending *141 the filing, and
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decision on, Plaintiffs’ motion for leave to file an Amended Complaint. On February 9, 2010, the Court granted Plaintiffs’ motion for leave to file an Amended Complaint (Dkt. No. 44). On February 18, 2010, Plaintiffs filed that Amended Complaint. (Dkt. No. 47.)
On June 11, 2010, Defendants filed a second motion to dismiss or, in the alternative, motion for summary judgment—this one challenging any additional claims asserted by Plaintiffs in their Amended Complaint. (Dkt. No. 56.) On June 28, 2010, Plaintiffs filed a response in opposition to Defendants’ motions to dismiss or, in the alternative, motions for summary judgment. (Dkt. No. 58.) On July 13, 2010, after being granted an extension of time in which to do so, Defendants filed their reply. (Dkt. No. 62.)
On July 28, 2010, Defendants filed a motion requesting permission to amend their Answer to Plaintiffs’ Amended Complaint (which Answer had been filed on March 5, 2010). (Dkt. No. 64.) On August 11, 2010, Defendants submitted a stipulation, indicating that the parties agreed to permit Defendants to amend their Answer. (Dkt. No. 65.) Two days later, the United States moved for leave to participate as amicus curiae in this matter in order to address the proper legal standards for discrimination on the basis of sex under (1) Title IX, and (2) the equal protection clause of the Fourteenth Amendment. On December 6, 2010, the Court issued a Decision and Order granting the United States’s motion for leave to participate as amicus curiae. (Dkt. No. 72.)
C. Undisputed Material Facts The following is a general summary of material facts that are undisputed by the parties. (Compare Dkt. No. 25, Part 18 [Defs.’ Rule 7.1 Statement] with Dkt. No. 27, Part 6 [Plf.’s Rule 7.1 Response].)
Plaintiff Pratt was born on August 16, 1988. He attended kindergarten, primary school (grades 1–4), and middle school (grades 5–8) in the District. In the fall of 2002, he entered ninth grade at the Indian River High School (“High School”), which he attended through May 2003. The summer vacation period in the District for the summer immediately following the 2002–03 school year started immediately after the High School’s graduation ceremony on June 27, 2003, and lasted until September 3, 2003. Plaintiff Pratt attended, but did not complete, summer school in the District during the 2003 summer vacation period.

In the fall of 2003, Plaintiff Pratt entered ninth grade at the High School for the second time. His last day of attending the High School during the 2003–04 school year was January 4, 2004. The summer vacation period in the District for the summer immediately following the 2003–04 school year started immediately after the High School’s graduation ceremony on June 25, 2004, and lasted until September 7, 2004. Plaintiff Pratt did not attend summer school during the 2004 summer vacation period. Rather, he next attended the High School for approximately three weeks, starting in September of 2004.1 After the fall of 2004, Plaintiff Pratt never returned to the District.

1

It is unclear from the record whether he attended school

during that time as a freshman or as a sophomore.

A “Gay Straight Alliance” (“GSA”) club of the type referenced in the Amended Complaint currently exists in the High School. However, Defendants do not grant equal access and benefits to the student GSA at the High School. For *142 example, the District and the High School still do not list the student GSA with the more than twenty other student groups on the District’s main web page, although it has been more than one year since the GSA’s formation.
Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts, as set forth in the parties’ Rule 7.1 Statement and Rule 7.1 Response, is assumed in this Decision and Order, which (again) is intended primarily for the review of the parties. (Id.)

D. Defendants’ Motions Generally, in support of their two motions to dismiss, or in the alternative, for summary judgment, Defendants argue as follows: (1) Plaintiffs’ state law claims should be dismissed because (a) Plaintiffs failed to plead facts plausibly suggesting that they complied with General Municipal Law §§ 50–e and 50–i, as well as Education Law §§ 50–e and 50–i and Education Law § 3813, all of which required that a Notice of Claim be filed, and that such Notice be pled in the Complaint, and (b) these claims are barred by the one-year statute of limitations proscribed by Education Law § 3813, as well as the one-year-and-ninety-day statute of limitations proscribed by the General Municipal Law; (2) Plaintiffs’ NYHRL claims should be dismissed because a school district is not
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an “education corporation or association” within the contemplation of NYHRL; (3) Plaintiffs’ NYCRL claims should be dismissed because Plaintiffs failed to allege facts plausibly suggesting that any Defendant engaged in any act that placed any person in reasonable fear of physical injury; (4) Plaintiffs’ Title IX claims should be dismissed because Plaintiffs failed to allege facts plausibly suggesting that Plaintiff Pratt was (a) discriminated against because of his sex, (b) subjected to a hostile educational environment of which Defendants were made aware, or (c) treated less favorably than similarly situated individuals who did not share a protected status with him; (5) Plaintiffs’ equal protection claims should be dismissed because (a) the Supreme Court does not consider classifications based on sexual orientation to be part of a suspect class, (b) Plaintiffs failed to allege facts plausibly suggesting that the District enacted a classification based on sexual orientation, and (c) Plaintiffs failed to allege facts plausibly suggesting the existence of a hostile educational environment; (6) Plaintiffs’ claims against the individual Defendants should alternatively be dismissed because these Defendants are immune from liability as a matter of law by the doctrine of qualified immunity; (7) Plaintiffs’ claims against the Board should be dismissed on the alternative ground that, where a person is seeking damages against a school district in New York State, the school district, rather than the board of education of that district, is the properly designated party; (8) Plaintiffs’ claims for punitive damages against the District should be dismissed because punitive damages may not be imposed against a school district; and (9) Plaintiffs’ claims under Article 1 § 8 of the New York State Constitution, the First Amendment and EAA should be dismissed because a GSA Club of the type referenced in the Amended Complaint is currently operating in the District, and therefore these claims are moot, and (10) Plaintiffs’ First Amendment claim should be dismissed for the alternative reason that Plaintiffs have failed to allege facts plausibly suggesting a claim upon which relief can be granted. (See generally Dkt. No. 30, Attach. 6, and Dkt. No. 56, Attach. 18 [Defs.’ Memos. of Law].)
In Plaintiffs’ response to Defendants’ motions, they argue as follows: (1) their claims do not require notices of claim; (2) Plaintiff Pratt’s state law claims are timely; *143 (3) Defendants are not exempt from NYHRL; (4) Plaintiffs have alleged facts plausibly suggesting claims for violations of NYCRL §§ 40–c and 40–d; (5) Plaintiffs have alleged facts plausibly suggesting that Defendants violated Title IX; (6) Plaintiffs have alleged facts plausibly suggesting that Plaintiff Pratt was denied equal

protection based on his sex and sexual orientation; (7) the individual Defendants are not entitled to qualified immunity from liability for their failure to protect Plaintiff Pratt from harassment by students; (8) the Board is a proper party to this action; and (9) Plaintiffs’ claims under Article 1 § 8 of the New York State Constitution, the First Amendment and EAA are not mooted by the existence of a GSA Club within the District. (See generally Dkt. No. 58 [Plfs.’ Response Memo. of Law].)
In their reply, Defendants essentially reiterate previously advanced arguments. (See generally Dkt. No. 62, Attach. 1 [Defs.’ Reply Memo. of Law].)
E. The United States’s Amicus Brief In its amicus brief, the United States argues that it has a significant interest in the proper development of the law regarding Title IX and the Equal Protection Clause. (Dkt. No. 76.) In an effort to further this interest, the United States makes the following points in its brief: (1) harassment based on nonconformity with sex stereotypes is a legally cognizable claim under Title IX and the Equal Protection Clause; (2) allegations of harassment based on sexual orientation do not defeat a gender-stereotyping harassment claim; and (3) a hostile environment claim may span transitions between classrooms, grades and schools. (Id.) The United States argues that Defendants’ arguments to the contrary should be rejected. (Id.)
In response, Defendants argue that the United States’s arguments are inconsequential because, even assuming that a cause of action generally exists under Title IX for gender-stereotyping claims, Plaintiffs have failed to allege facts plausibly suggesting that their Title IX claim is, indeed, based upon gender stereotyping rather than sexual orientation. Defendants further argue that, because a cause of action under Title IX for discrimination based on sexual orientation cannot exist, Plaintiffs’ “bootstrapped” Title IX claim should be dismissed. (Dkt. No. 75.)
II. RELEVANT LEGAL STANDARDS Before discussing the relevant legal standards governing this action, the Court pauses to note that, although Defendants’ motions are captioned as motions to dismiss for failure to state a claim or, in the alternative, motions for summary judgment, Defendants’ motions are based primarily, if not exclusively, on a failure-to-state-a-claim analysis. For example, only portions of six of Defendants’ thirteen legal arguments rely on record evidence, and
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specifically the affidavit of James Kettrick (Dkt. No. 30, Attach. 5): (1) a portion of Defendants’ notice-of-claim argument; (2) a portion of Defendants’ statute-of-limitations argument; (3) a portion of Defendants’ argument regarding Plaintiffs’ Title IX sexual-harassment claim; (4) a portion of Defendants’ argument regarding Plaintiffs’ Title IX hostile-environment claim; (5) a portion of Defendants’ argument regarding Plaintiffs’ Equal Protection Claim; and (6) a portion of Plaintiffs’ mootness argument regarding Plaintiffs’ First Amendment claims. (See generally Dkt. No. 30, Attach. 6 [Defs.’ Memo. of Law]; Dkt. No. 56, Attach. 18 [Defs.’ Second Memo. of Law].)
[1] For the sake of brevity, the Court will set aside the fact that Defendants’ *144 motion vacillates so freely between asserting a Fed.R.Civ.P. 12(b)(6) challenge and asserting a Fed.R.Civ.P. 56 challenge—often in the same sentence—that Defendants’ motion arguably violates Fed.R.Civ.P. 7(b)(1)(B),(C) (requiring that “[a] request for a court order must ... state with particularity the grounds for seeking the order [ ] and ... state the relief sought”) and Local Rule 7.1(a)(1) of the Local Rules of Practice for this Court (requiring that a motion “specify ... the rule or statute upon which [the motion is based]”).2 The Court will also set aside the fact that, when Defendants do rely on Fed.R.Civ.P. 56, that reliance is often unnecessary in that the evidence relied on is duplicative of the factual allegations asserted in Plaintiffs’ Amended Complaint, making that pleading subject to a Fed.R.Civ.P. 12(b)(6) challenge. What is more important is that Defendants’ filed their first motion on June 12, 2009, only two months after Plaintiffs’ commenced this action on April 8, 2009. The parties have yet to commence discovery—a fact raised by Plaintiffs in their opposition papers. (Dkt. No. 58, at 3–5, 15, 33.) It is well-settled that “only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.” Hellstrom v. U.S. Dept. of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000), aff’d, 46 Fed.Appx. 651 (2d Cir.2002); see also Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir.1989). Defendants have not persuaded the Court that this is one of those rare cases.

2

The Court notes that Defendants’ memoranda of law do

not even bother to recite the legal standard governing a

motion for summary judgment.

For these reasons, the Court denies both of Defendants’ motions to the extent there are motions for summary

judgment, and considers those motions only to the extent they are motions to dismiss for failure to state a claim. The Court notes that, while Defendants stylize these motions to dismiss as ones made pursuant to Fed.R.Civ.P. 12(b)(6), in actuality they are ones made pursuant to Fed.R.Civ.P. 12(c), because an Answer has already been filed. Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir.1983); see also Fed.R.Civ.P. 12(b), 12(c). Of course, a motion for judgment on the pleadings is decided according to the same standard as a motion to dismiss for failure to state a claim. Maggette, 709 F.2d at 801. For the sake of brevity, the Court will not recite, in this Decision and Order, the well-known legal standard governing dismissals for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), but will direct the reader to the Court’s decision in Wade v. Tiffin Motorhomes, Inc., 686 F.Supp.2d 174, 180–85 (N.D.N.Y.2009) (Suddaby, J.).
III. ANALYSIS Before analyzing each of Plaintiffs’ various claims, the Court first turns to the issue of whether the Board is a proper party to this action. Defendants argue that the Board is not a proper party to this action, and therefore must be dismissed, because (1) the school district is the proper party, and (2) Plaintiffs have failed to allege facts plausibly suggesting that the Board was involved in any of the alleged state or constitutional violations.
[2] As an initial matter, the fact that Plaintiffs may be able to recover money damages from the District does not preclude Plaintiffs from also seeking money damages against the Board. To the contrary, it is well-settled that a board of education may be liable for a plaintiff’s *145 claim of discrimination (or unlawful conduct based on a discriminatory motive).3 Moreover, here, Plaintiffs have alleged facts plausibly suggesting that, since “at least 1994,” there has existed within the District a longstanding and widely known problem of sexist and antigay discrimination, and that the Board has nonetheless failed to (1) amend its written policies and handbooks to prohibit discrimination based on sexual orientation, (2) address harassment based on sexual orientation in any of its statements or publications, or (3) and provide adequate training to its employees with respect to discrimination, bullying, or harassment based on sexual orientation or sex. (Dkt. No. 47, at ¶¶ 80–81, 113–14, 116, 128.)4 Such factual allegations plausibly suggest a claim against the Board. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 128 (2d Cir.2004) (noting that a school board may have final policy making authority in certain areas and that a decision “by a person whose
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edicts or acts may fairly be said to represent official policy, can, by itself, support a claim against a municipality”).

3

See Woods v. Rondout Valley Cent. Sch. Dist. Bd. of

Educ., 466 F.3d 232, 234–35, 251 (2d Cir.2006)

(rejecting board of education’s sovereign immunity

defense in case involving, inter alia, 42 U.S.C. § 1983

and HRL); Jackson v. Birmingham Bd. of Educ., 544

U.S. 167, 182, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005)

(noting that Board of Education was on notice that it

could be subjected to private suits for intentional sex

discrimination since Supreme Court’s 1979 decision in

Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S.Ct.

1946, 60 L.Ed.2d 560 (1979), and thus could be held

liable to coach of girls’ high school basketball team

under Title IX for intentional retaliation on the basis of

sex); Gant ex rel. Gant v. Wallingford Bd. of Educ., 195

F.3d 134, 140 (2d Cir.1999) (noting that

“schoolteachers, administrators, and boards of

education can be held liable for race discrimination-in

violation of the Fourteenth Amendment and §

1981–based on their responses to harassment, in the

school environment, of a student by other children or

parents ... [when] a plaintiff ... show[s] deliberate

indifference on the part of the defendants themselves”).

Davis, in their individual capacities, and Plaintiff A.E.P. against the District, the Board, Defendants Kettrick and Decker, in their official and individual capacities, and Defendant Brown, in his individual capacity; and (3) a violation of Article 1 § 8 of the New York State Constitution, asserted by Plaintiff A.E.P. against the District, the Board, Defendants Kettrick and Decker, in their official and individual capacities, and Defendant Brown, in his individual capacity.
In their motion to dismiss, Defendants argue that Plaintiffs’ state law claims should be dismissed for the following four reasons: (1) Plaintiffs failed to file a Notice *146 of Claim; (2) Plaintiffs’ claims under the NYHRL and NYCRL are barred by the one year statute of limitations proscribed by New York Education Law § 3813, as well as the one year and ninety day statute of limitations proscribed by the New York General Municipal Law; (3) Plaintiff A.E.P.’s claim under Article 1 § 8 is moot; and (4) Plaintiffs have failed to allege facts plausibly suggesting a claim for violation of NYHRL § 296(6), or NYCRL §§ 40–c and 40–d. Before turning to pleading sufficiency of the Amended Complaint with regard to these claims, the Court will address Defendants’ arguments common to some or all claims.

4

As Plaintiffs point out in the memorandum of law,

under New York law, the Board has the power to (1)

appoint a superintendent, principals, and teachers,

among other employees and personnel, see N.Y. Educ.

Law § 2554(2), and (2) “establish ... rules and

regulations concerning the order and discipline of the

schools, in the several departments thereof.” N.Y.

Educ. Law § 1709.

For these reasons, the Court finds that the Board is a proper party to this action.

A. Plaintiffs’ State Law Claims As stated above in Part I.A. of this Decision and Order, Plaintiffs assert the following state law claims: (1) a violation of NYHRL § 296(6), asserted by Plaintiff Pratt against Defendants Turner, Gray, Henderson, and Davis, in their individual capacities, and Plaintiff A.E.P. against the District, the Board, Defendants Kettrick and Decker, in their official and individual capacities, and Defendant Brown, in his individual capacity; (2) a violation of NYCRL §§ 40–c and 40–d, asserted by Plaintiff Pratt against Defendants Turner, Gray, Henderson, Moore, and

1. Whether Plaintiffs Were Required to File a Notice of Claim Prior to Commencing this Action in Federal
Court
Defendants argue that, under New York law, before commencing an action against a school district in this Court, a plaintiff must comply with the Notice of Claim requirements set forth in N.Y. Gen. Mun. Law §§ 50–e and 50–i, and N.Y. Educ. Law § 3813. Conversely, Plaintiffs argue that the Notice of Claim requirements set forth in these statutes are inapplicable to their state law claims.
[3] [4] As an initial matter, the Court notes that the Notice of Claim requirements set forth in N.Y. Gen. Mun. Law §§ 50–e and 50–i apply only to tort actions. See, e.g., Flaherty v. Massapequa Public Sch., 752 F.Supp.2d 286, 292 (E.D.N.Y.2010) (“Section 50–e explicitly applies only to tort claims.”); EUA Cogenex Corp. v. N. Rockland Cent. Sch. Dist., 124 F.Supp.2d 861, 863–64 (S.D.N.Y.2000) (noting that Section 50–e applies only to tort claims, and that Section 3813 applies to all state claims asserted against a school district). Here, Plaintiffs’ claims under the NYHRL and NYCRL are not based in
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tort. See Baker v. Cnty. of Monroe, 47 F.Supp.2d 371, 375 (W.D.N.Y.1999) (“The Notice of Claim provisions of General Municipal Law section 50–i do not apply to a N.Y. Human Rights Law, Executive Law section 296, cause of action.”); Dimonda v. New York City Police Dep’t, 94–CV–0840, 1996 WL 194325, at *6 (S.D.N.Y. Apr. 22, 1996) (“[T]he most recent case law from the Appellate Division of the New York State Supreme Court ... hold[s] that the notice of claim provisions embodied in §§ 50–e and 50–i are not applicable to claims of discrimination brought pursuant to Executive Law § 296”); Liu v. New York City Police Dept., 216 A.D.2d 67, 67, 627 N.Y.S.2d 683 (N.Y.App. Div. 1 Dept.1995) (“Contrary to defendants’ claim, actions against the municipality to recover for Federal and State civil rights violations are not subject to the notice of claim requirements in General Municipal Law § 50–i.”). As a result, Plaintiffs were not required to comply with the Notice of Claim requirements set forth in N.Y. Gen. Mun. Law §§ 50–e and 50–i before asserting in this action their state law claims under NYHRL and NYCRL.
[5] [6] Having said that, Plaintiff A.E.P. also asserts a claim under Article 1 § 8 of the New York State Constitution. The New Court of Appeals has held that the notice-of-claim provisions of the General Municipal Law § 50–i are applicable to a cause of action for “constitutional torts” in violation of the New York State Constitution. See 423 S. Salina Street, Inc. v. City of Syracuse, 68 N.Y.2d 474, 489 n. 5, 510 N.Y.S.2d 507, 503 N.E.2d 63 (N.Y.1986), cert. denied, 481 U.S. 1008, 107 S.Ct. 1880, 95 L.Ed.2d 488 (1987). As a result, the Court finds that Plaintiffs’ failure to file a notice of claim is fatal to Plaintiff A.E.P.’s claim under Article 1 § 8 of the New York State Constitution. See O’Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158 (1981) (dismissing *147 tort claim based on plaintiff’s failure to file notice of claim because it “is a condition precedent to bringing a tort claim against a municipality[,]”). As a result, Plaintiff A.E.P.’s claim under Article 1 § 8 of the New York State Constitution is dismissed.
Turning to the Notice of Claim requirement set forth in N.Y. Educ. Law § 3813, the Court notes that this requirement applies only to certain claims brought against any “school district, board of education, board of cooperative educational services, school provided for in [certain state statutes] or any officer of a school district, board of education, board of cooperative educational services, or school provided for in [certain state statutes].” N.Y. Educ. Law § 3813. Under New York law, a school

“officer” is defined to include any of the following:

a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a ... central school district ...; a superintendent of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.

N.Y. Educ. Law § 2(13).
[7] With regard to Plaintiff Pratt’s claims under NYHRL and NYCRL, those individual-capacity claims are asserted against only Defendants Turner, Gray, Henderson, Moore, and Davis—none of whom are “officers” as that term is defined under New York law. Rather, Defendant Davis was the Assistant Principal of Indian River High School when Plaintiff Pratt was a student;5 Defendant Moore was a guidance counselor when Plaintiff Pratt was in Middle School; and Defendants Turner, Gray, and Henderson were District employees whose primary responsibility included monitoring student conduct at the High School. See Spencer v. City of New York, 06–CV–2852, 2007 WL 1573871, at *3 (S.D.N.Y. May 30, 2007) (concluding that the Notice of Claim provision in § 3813(1) does not apply to school employees who are not school officers within the meaning of the statute). As a result, the Court finds that Plaintiffs were not required to comply with the Notice of Claim requirements set forth in N.Y. Educ. Law § 3813 before asserting in this action Plaintiff Pratt’s state law claims.

5

See, e.g., Carlson v. Geneva City Sch. Dist., 679

F.Supp.2d 355, 367 (W.D.N.Y.2010) (agreeing with

other district courts that have held that “a principal is

not an officer of a school district”); Richards v. Calvet,

99–CV–12172, 2005 WL 743251, at *13 (S.D.N.Y.

Mar. 31, 2005) (concluding that § 3813 notice was not

required for claims against school principal because

school principals are not officers within the meaning of

§ 3813).

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state law claims (i.e., her claims under NYHRL and NYCRL), these claims are asserted against, among others, the District and the Board. As a result, the notice requirement set forth in § 3813 may only be excused if the Court concludes that Plaintiff A.E.P.’s claims seek to vindicate the public interest. See Union Free Sch. Dist. No. 6 of Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 379–380, 362 N.Y.S.2d 139, 320 N.E.2d 859 (N.Y.1974); Yagan v. Bernardi, 256 A.D.2d 1225, 1225, 684 N.Y.S.2d 117 (N.Y.App. Div. 4 Dept.1998) (“[T]he notice of claim requirement in Education Law § 3813(1) does not apply where ... a party seeks to vindicate a public interest.”).
Plaintiff A.E.P.’s NYHRL and NYCRL claims arise out of her allegation that certain Defendants discriminated against her *148 by, inter alia, not granting equal recognition and benefits to the student GSA. As a result, Plaintiff A.E.P. seeks injunctive relief requiring Defendants to provide the GSA with rights and benefits equal to those afforded other student organizations. Although Plaintiff A.E.P.’s claims are not asserted on behalf of a class, the Court finds—at least for purposes of the current motion and based on the current briefing by the parties—that Plaintiff A.E.P. has alleged facts plausibly suggesting that requiring Defendants to provide the GSA with rights and benefits equal to those afforded other student organizations vindicates a public interest. Cf. Union Free Sch. Dist. No. 6 of Towns of Islip & Smithtown, 35 N.Y.2d at 380, 362 N.Y.S.2d 139, 320 N.E.2d 859 (concluding that claim asserted by N.Y. Division of Human Rights “on behalf of a class of women plaintiffs alleging that the school board’s policy with respect to maternity leave was discriminatory” was in the public interest). As a result, the Court finds (again, for purposes of the current motion and based on the current briefing by the parties) that Plaintiffs were not required to comply with the Notice of Claim requirements set forth in N.Y. Educ. Law § 3813 before asserting in this action Plaintiff A.E.P.’s NYHRL and NYCRL claims.
2. Whether Plaintiffs’ Claims Under NYHRL and NYCRL Are Barred by the Applicable Statute of
Limitations
[9] Contrary to Defendants’ argument, claims brought under NYHRL and NYCRL are subject to a three-year statute of limitations. N.Y. C.P.L.R. § 214(2); see also Butler v. New York Health & Racquet Club, 768 F.Supp.2d 516, 536 (S.D.N.Y.2011) (“The statute of

limitations is three years for claims brought under ... the NYSHRL”); Howe v. Town of Hempstead, 04–CV–0656, 2006 WL 3095819, at *9 n. 7 (E.D.N.Y. Oct. 30, 2006) (“Section 296 of the New York State Human Rights Law, N.Y. Exec. Law § 296, ... and New York Civil Rights Law § 40–c allow three years from the date of injury caused by discrimination.”). Moreover, pursuant to N.Y. C.P.L.R. § 208, the statute of limitations does not expire until three years after the expiration of a disability, which includes infancy. For these reasons, the Court finds that, because Plaintiff Pratt turned eighteen on August 16, 2006, his state law claims, which were filed on April 8, 2009, are timely.

3. Whether Plaintiffs’ State Law Claims Should Be Dismissed Pursuant to Fed.R.Civ.P. 12(b)(6)

a. Plaintiffs’ Claims Under NYHRL
[10] As stated above in Part I.D. of this Decision and Order, Defendants argue that Plaintiffs’ claims under NYHRL should be dismissed because a school district is not an “education corporation or association” within the contemplation of NYHRL, and therefore the statute does not apply to claims by students alleging discrimination by public school districts.
Based on the Second Department’s holding in E. Meadow Union Free Sch. Dist. v. NYS Div. of Human Rights, 65 A.D.3d 1342, 886 N.Y.S.2d 211 (N.Y.App.Div. 2nd Dept.2009), leave to appeal denied by 14 N.Y.3d 710, 903 N.Y.S.2d 768, 929 N.E.2d 1003 (N.Y.2010), the Court accepts Defendants’ argument with regard to the District.6 The Court would add only two *149 points. First, Defendants’ Amended Answer cures the former pleading deficiency that existed in Defendants’ original Answer (where they admitted that the District is a non-sectarian, tax-exempt “education corporation and association”). (Dkt. No. 69, at ¶ 6.) Second, while the Court has serious reservations in concluding that NYSHRL § 296(4) does not apply to public school districts, it is not prepared to disturb the Second Department’s interpretation of New York law when the New York Court of Appeals has already declined to do so.

6

In East Meadow, the Second Department noted that

“the language of section 296(4) ... prohibits various

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forms of discrimination by ‘an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to the provisions of article four of the real property tax law.’ ” E. Meadow Union Free Sch. Dist., 65 A.D.3d at 1343, 886 N.Y.S.2d 211. The court further noted that “[t]he terms ‘education corporation’ and ‘education association’ are not defined by the Executive Law.” Id. As a result, for a definition of these terms, the court turned to “[t]he General Construction Law, which establishes the meaning of terms not otherwise defined by statute ....” Id. Although the General Construction Law did not define the term “education association,” the court noted that “[a] corporation and an association ... are different things ... [and] [s]ince a School District is a corporation ... it is not an association.” Id. The court further noted that the General Construction Law defines both “education corporation” and “school district,” and “establishes that they are mutually exclusive.” Id. Specifically, the court stated as follows:
Pursuant to General Construction Law § 65(a), a corporation is either a public corporation, a corporation formed other than for profit, or a corporation formed for profit ...; it cannot be more than one of these. An “education corporation” is a type of corporation formed other than for profit ... [and] [a] “school district,” by contrast, is a type of “municipal corporation.” Since a “municipal corporation” is a public corporation ..., a school district is a public corporation. Hence, a school district cannot be an “education corporation” within the meaning of Human Rights Law § 296(4). Id. As a result, the court concluded that “the School District ... is not an ‘education corporation or association’ within the meaning of Executive Law.” Id. at 1344, 886 N.Y.S.2d 211.
[11] In addition, having found that NYHRL § 296(4) does not apply to the District, the Court finds that Plaintiffs’ aiding and abetting claims against the individual Defendants must be dismissed. See, e.g., DeWitt v. Lieberman, 48 F.Supp.2d 280, 293 (S.D.N.Y.1999) (noting that, when a plaintiff asserts a claim of aiding and abetting liability under the NYHRL, “liability must first be established as to the employer/principal before accessorial liability can be found as to an alleged aider and abettor”). In reaching this conclusion, the Court pauses to note that apparently the law in the Circuit is still that “a defendant who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under [§ 296(6), the aiding and abetting provision,]”7 even when the employer has been found not liable for discrimination. See Evans–Gadsden v. Bernstein

Litowitz Berger & Grossman, LLP, 332 F.Supp.2d 592, 598 (S.D.N.Y.2004) ( “Pursuant to § 296(6), one of two showings must be made: (1) that the employer has already been found liable for discrimination; or (2) a lesser showing, that the individual employee participated in the conduct giving rise to the discrimination claim.”). However, where, as here, NYHRL does not even apply to the employer, a finding that the statute nonetheless applies to its employees flies in the face of logic. As a result, for purposes of the current motion and based on the current *150 briefing by the parties, the Court finds to be inapposite those cases holding that employees may be liable for aiding and abetting each other, even when the NYHRL claim against the employer has been dismissed (on the merits or on grounds of qualified, absolute or sovereign immunity).

7

Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d

Cir.1995) (holding that individuals cannot be held

personally liable for either Title VII or NYHRL sexual

harassment or hostile work environment violations, but

may be liable under the aiding and abetting provision

set forth in NYHRL § 296[6] ), abrogated on other

grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

For these reasons, Plaintiffs’ claims under NYHRL are dismissed.

b. Plaintiffs’ Claims Under NYCRL
[12] As stated above in Part I.D. of this Decision and Order, Defendants argue that Plaintiffs’ claims under the NYCRL should be dismissed because Plaintiffs failed to allege facts plausibly suggesting that any Defendant engaged in any act that placed any person in reasonable fear of physical injury. Based on the current record, the Court rejects Defendants’ argument.
NYCRL § 40–c(2) states as follows:
[n]o person shall, because of race, creed, color, national origin, sex, marital status, sexual orientation or disability, as such term is defined in section two hundred ninety-two of the executive law, be subjected to any discrimination in his or her civil rights, or to any harassment,
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as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision of the state.
NYCRL § 40–c(2) (emphasis added). In other words, a plaintiff may state a claim for violation of NYCRL § 40–c(2) by alleging either (1) that he was subjected to discrimination of his civil rights, or (2) that he was subjected to harassment while exercising his civil rights.
Here, Plaintiffs’ Amended Complaint alleges that Defendants violated NYCRL § 40–c(2) by subjecting Plaintiff Pratt to discrimination based on sex and sexual orientation, and violated NYCRL § 40–d by aiding and inciting others to do the same. (Dkt. No. 47, at ¶¶ 196, 197, 203, 204.) In addition, Plaintiffs’ Amended Complaint alleges that Defendants violated NYCRL § 40–c(2) by subjecting Plaintiff A.E.P. to discrimination on the basis of perceived sexual orientation and anti-gay animus. (Id. at ¶ 215.) Such allegations plausibly suggest claims under NYCRL § 40–c(2) and § 40–d.
For these reasons, Plaintiffs’ claims under NYCRL survive Defendants’ motions to dismiss.
B. Plaintiff Pratt’s Claim Under Title IX As stated above in Part I.D. of this Decision and Order, Defendants seek the dismissal of Plaintiff Pratt’s Title IX claim because Plaintiffs failed to allege facts plausibly suggesting that Plaintiff Pratt was (1) discriminated against because of his sex, (2) subjected to a hostile educational environment of which Defendants were made aware, or (3) treated less favorably than similarly situated individuals who did not share a protected status with him. Based on the current record, the Court rejects each of Defendants’ arguments.
[13] “In order to state a claim under Title IX, a plaintiff must allege that [ ]he has been ‘excluded from participation in, ... denied the benefits of, or ... subjected to discrimination under’ any educational program receiving federal funding on the basis of gender.” Crandell v. New York Coll. of Osteopathic Med., 87 F.Supp.2d 304, 314 (S.D.N.Y.2000) (quoting 20 U.S.C. § 1681[a] ). “ ‘Discrimination’ is defined as disparate provision of programs, aid, benefits or services or inequitable application of rules or sanctions.” Crandell, 87 F.Supp.2d at 314 (quoting 45 C.F.R. § 86.31 [2000] ).

“It includes both quid *151 pro quo and hostile educational environment sexual harassment.” Id. Plaintiff Pratt’s Title IX claim appears based primarily on a theory of hostile educational environment.
[14] “[U]nder Title IX, a plaintiff may state a claim of discriminatory harassment based upon a hostile educational environment by alleging th[e following]: (1)[ ]he is a member of a protected group; (2)[ ]he was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment was based on sex; (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of h[is] education and create an abusive educational environment; and (5) some basis for institutional liability has been established.” Folkes v. New York Coll. of Osteopathic Med. of New York Inst. of Tech., 214 F.Supp.2d 273, 281 (E.D.N.Y.2002).8

8

In undergoing this analysis, it is important to keep in

mind that a hostile environment claim may span

transitions between classrooms, grades, and schools.

See Riccio, 467 F.Supp.2d at 227 (noting that the “term

‘pervasive’ implies that something is widespread,”

which includes harassment that followed the plaintiff

from school to school, from eighth grade to ninth);

Theno v. Tonganoxie Unified Sch. Dist. No. 464, 377

F.Supp.2d 952, 968 (D.Kan.2005) (holding that a

rational trier of fact could find that harassment was

pervasive because it transcended from one school to

another and continued unabated throughout the school

year); cf. Davis, 526 U.S. at 633–35, 653–54, 119 S.Ct.

1661 (holding that a Title IX claim based

student-on-student harassment spanning the winter

holidays and spring break was sufficient to survive a

motion to dismiss for failure to state a claim).

[15] “To establish institutional liability for sexual harassment under Title IX, the plaintiff must show that ‘an official who ... has authority to address the alleged discrimination and to institute corrective measures on the [institutional] recipient’s behalf has actual knowledge of discrimination ... and fails adequately to respond.’ ” Folkes, 214 F.Supp.2d at 282 (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 [1998] ). “Moreover, the official’s response ‘must amount to deliberate indifference to discrimination.’ ” Id. (quoting Gebser, 524 U.S. at 290, 118 S.Ct. 1989).
[16] [17] A sex stereotyping claim is legally cognizable
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under Title VII. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251–52, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (holding that harassment based on sex stereotyping constituted discrimination on the basis of sex under Title VII). Similarly, harassment based on nonconformity with sex stereotypes is a legally cognizable claim under Title IX.9 See Riccio v. New Haven Bd. of Educ., 467 F.Supp.2d 219, 226 (D.Conn.2006) (“The language set forth in the OCR Guidance and the holding in Oncale clearly support the conclusion that a female student, subjected to pejorative, female homosexual names by other female students, can bring a claim of sexual harassment under Title IX.”). In addition, allegations of harassment based on sexual orientation do not defeat a sex stereotyping harassment claim. See Riccio, 467 F.Supp.2d at 226.

9

Courts examine Title VII precedent when analyzing

discrimination “on the basis of sex” under Title IX. See

Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629, 631,

119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (holding that

Title VII agency principles do not apply under Title IX,

however Title VII precedent was relevant to expound

on gender-based harassment); Franklin v. Gwinnett

Cnty. Pub. Schs., 503 U.S. 60, 74, 112 S.Ct. 1028, 117

L.Ed.2d 208 (1992) (concluding that Title VII

precedent was the basis for recognizing a Title IX

private cause of action for sexual harassment).

[18] Defendants do not dispute that the District is a recipient of federal education *152 funding. Moreover, Plaintiffs have alleged facts plausibly suggesting that Plaintiff Pratt was harassed and discriminated against based on his sex, including nonconformity, or perceived nonconformity, to sexist stereotypes. For example, Plaintiffs have alleged that “aspects of [Plaintiff Pratt’s] expressive gestures and manner of speaking were of a nature stereotypically associated with females[,]” and, based on the nonconformity, or perceived nonconformity, Plaintiff Pratt was repeatedly called names like “pussy,” “sissy,” and “girl,” and was mocked with effeminate gestures. (Dkt. No. 47 at ¶¶ 20, 35–39, 54, 59.) Furthermore, Plaintiffs have alleged facts plausibly suggesting that the harassment was severe and pervasive enough to cause Plaintiff Pratt to withdraw from school. (Id. at ¶¶ 76–79.) Finally, Plaintiffs have alleged facts plausibly suggesting that the Board and District had actual knowledge that Plaintiff Pratt was being harassed, yet failed to respond to the sexist harassment despite responding to harassment of other students on other grounds. (Id. at ¶¶ 122, 130–31.)
For these reasons, Plaintiffs’ Title IX claim survives

Defendants’ motions to dismiss.
C. Plaintiff Pratt’s Claims Under the Equal Protection Clause As stated above in Part I.D. of this Decision and Order, Defendants seek the dismissal of Plaintiff Pratt’s equal protection claims because (1) the Supreme Court does not consider individuals classified based on sexual orientation to be part of a suspect class, (2) Plaintiffs failed to allege facts plausibly suggesting that the District enacted a classification based on sexual orientation, and (3) Plaintiffs failed to allege facts plausibly suggesting the existence of a hostile educational environment. Based on the current record, the Court rejects Defendants’ arguments.
[19] As an initial matter, Defendants are correct that the Supreme Court has not recognized sexual orientation as a suspect classification, warranting strict scrutiny. See, e.g., Price–Cornelison v. Brooks, 524 F.3d 1103, 1113 n. 9 (10th Cir.2008) (collecting cases). However, if the State (or one of its agencies) violates the Equal Protection Clause by creating a disadvantage for homosexuals, the State’s conduct must have a “rational relationship to legitimate governmental aims.” Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir.2004); see also Quinn v. Nassau Cnty. Police Dep’t, 53 F.Supp.2d 347, 356–57 (E.D.N.Y.1999) (noting that the Supreme Court has found that government discrimination against homosexuals, in and of itself, violates the Equal Protection Clause) (citing Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 [1996] ).
[20] [21] Here, Plaintiffs have alleged facts plausibly suggesting that the District, the Board, and Defendants Kettrick, Decker, Davis, Turner, Gray, Henderson, and Moore discriminated against Plaintiff Pratt because of his sex and sexual orientation, and were deliberately indifferent to antigay harassment of him by other students and faculty. (Dkt. No. 47 at ¶¶ 1–2, 4, 20, 34 & n. 1, 37–40, 46, 50, 53–55, 57, 59, 65–66, 71, 92–93, 121, 129–31, 165–67.) Moreover, as noted above in Part III.B. of this Decision and Order, Plaintiffs have alleged facts plausibly suggesting that the harassment (based on Plaintiff Pratt’s sex and sexual orientation) was severe and pervasive enough to cause Plaintiff Pratt to withdraw from school.10 In addition, *153 Plaintiffs have alleged facts plausibly suggesting that the individual Defendants had actual knowledge that Plaintiff Pratt was being harassed, yet failed to take remedial action. (Dkt. No. 47 at ¶¶ 41, 58–59, 65, 122, 130–31.)11 For these reasons,
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Plaintiffs’ equal protection claims survive Defendants’ motions to dismiss.12

10

“Section 1983 sexual harassment claims that are based

on a ‘hostile environment’ theory ... are governed by

traditional Title VII ‘hostile environment’

jurisprudence.” Hayut v. State Univ. of New York, 352

F.3d 733, 744–45 (2d Cir.2003) (citations omitted)

(relying on Title VII hostile environment precedent to

define the legal standard under the Equal Protection

Clause); Sauerhaft v. Bd. of Educ. of the

Hastings–On–Hudson Union Free Sch. Dist.,

05–CV9087, 2009 WL 1576467, at *6 n. 11 (S.D.N.Y.

June 2, 2009) (applying same standard under Title IX

and the Equal Protection Clause in its analysis of

severity and pervasiveness).

11

The Court recognizes that Plaintiffs have also alleged

equal protections claims based on (1) Defendant

Kettrick’s refusal to allow a student GSA, and (2) direct

harassment carried out by Defendants Gray and Turner.

However, because Defendants’ motions to dismiss do

not specifically address the merits of these claims, the

Court need not, and does not, address them in this

Decision and Order.

12

The Court rejects Defendants’ argument that they are

entitled to qualified immunity because, contrary to

Defendants’ belief, at the time of the alleged conduct, it

was clearly established that “discrimination on the basis

of sexual orientation could violate the Equal Protection

Clause of the Constitution.” Pugliese v. Long Island

R.R. Co., 01–CV–7174, 2006 WL 2689600, at *5

(E.D.N.Y. Sept. 19, 2006) (rejecting defendants’

qualified immunity argument because “[t]he existence

of a high profile and widely publicized case, such as

Romer [v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134

L.Ed.2d 855 (1996) ], is sufficient notice of the

potential for a constitutional violation ... [and] [i]t [wa]s

therefore ... objectively reasonable that [defendants]

should have been aware of the legal implications of

discriminating on the basis of sexual orientation”).

D. Plaintiffs’ Claims Under the First Amendment and EAA As stated above in Part I.D. of this Decision and Order, Defendants seek the dismissal of Plaintiffs’ claims under the First Amendment and EAA because a GSA Club of the type referenced in the Amended Complaint is

currently operating in the District, and therefore these claims are moot. Defendants further argue that Plaintiffs have failed to allege facts plausibly suggesting a claim under the First Amendment.
With regard to Defendants’ first argument, for the sake of brevity, the Court will set aside the fact that this argument is based on record evidence that the Court has already found to be impermissible for purposes of the pending motions. See, supra, Part III of this Decision and Order. Rather, the Court will proceed to the merits of Defendants’ argument.
[22] [23] As an initial matter, “voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); accord Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 127 S.Ct. 2738, 2751, 168 L.Ed.2d 508 (2007). The party asserting voluntary cessation bears the burden of showing that “(1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Lamar Adver. v. Town of Orchard Park, 356 F.3d 365, 375 (2d Cir.2004).
[24] Here, Plaintiffs concede that a GSA Club of the type referenced in the Amended Complaint is currently operating in the District. However, Plaintiffs allege *154 in their Amended Complaint that the “District still does not grant equal recognition and benefits to the student GSA.” (Dkt. No. 47 at ¶ 104.) This allegation goes beyond a mere allegation that the GSA Club has not been permitted to operate in the District, and extends to an allegation that the GSA Club does not enjoy recognition and benefits equal to those of other school clubs in the District. Such an allegation is not addressed by Defendants’ argument.
Furthermore, even assuming, for the sake of argument, that Defendants have established that the GSA Club receives benefits, rights, and privileges on an equal basis to that afforded other students and student groups, Plaintiffs’ claim for money damages based on Defendants’ unequal treatment leading up to the point of equal treatment remains meritorious. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health, 532 U.S. 598, 608–09, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)
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Pratt v. Indian River Cent. School Dist., 803 F.Supp.2d 135 (2011)

(holding that, “so long as the plaintiff has a cause of action for damages, a defendant’s change in conduct will not moot the case”); Alive v. Hauppauge Sch. Dist., 08–CV–1068, 2009 WL 959658, at *4 (E.D.N.Y. Apr. 6, 2009) (noting that “Second Circuit precedent adopts a broad view of this rule, indicating that claims for nominal damages are sufficient to prevent mootness, provided that some form of damages are specifically sought in the complaint”). For each of these reasons, the Court rejects Defendants’ first argument.
[25] Turning to Defendants’ second argument (i.e., regarding the pleading sufficiency of Plaintiffs’ First Amendment claim),13 Defendants argue that Plaintiffs’ Amended Complaint fails to state a claim under the First Amendment because the District need not maintain the limited public forum of extracurricular activities. The Court agrees with Defendants that the District is not required to maintain the limited public forum of extracurricular activities.14 However, Plaintiffs do not dispute this point of law. Rather, Plaintiffs allege that Defendants have violated their rights under the First Amendment by maintaining a limited public forum (comprised of extracurricular student groups permitted to meet on school premises and access certain privileges and resources), and discriminating against them (by refusing to allow Plaintiff Pratt to form a GSA, refusing to allow a GSA to meet at school or otherwise have official recognition, and threatening to close the existing GSA) based on the viewpoint of their intended speech. (Dkt. No. 47 at ¶¶ 92, 140, 142, 150, 154, 159.)15 These allegations plausibly suggest a claim under the First Amendment.16 For these reasons, the *155 Court rejects Defendants’ second argument.

13

Defendants do not argue that Plaintiffs’ EAA claim

should be dismissed for failure to state a claim upon

which relief can be granted. As a result, the Court need

not, and does not, consider whether Plaintiffs’ EAA

claim states a claim upon which relief can be granted.

14

Byrne v. Rutledge, 623 F.3d 46, 54 (2d Cir.2010)

(“[T]he government may permissibly restrict content by

prohibiting any speech on a given topic or subject

matter.”) (emphasis in original); Good News Club v.

Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093,

150 L.Ed.2d 151 (2001) (“The State may be justified

‘in reserving [its forum] for certain groups or for the

discussion of certain topics.’ ”).

15

Plaintiffs allege that the “purpose” of the GSA was

(and is) “to educate the school community about the

importance of tolerance, inclusion, and

respect—regardless of sexual orientation, gender

identity, and gender expression—and to bring attention

to the harmful consequences of discriminatory

conduct.” (Dkt. No. 47, at ¶ 85.)

16

Good News Club, 533 U.S. at 108–11, 121 S.Ct. 2093

(concluding that New York State school district had

engaged in viewpoint discrimination by refusing to

allow a private Christian organization for children to

hold weekly after-school meetings in the limited public

forum of school cafeteria because school district

acknowledged it would allow other groups that taught

or promoted to children moral and character

development to use the school building); see also

Gay–Straight Alliance of Yulee High Sch. v. Sch. Bd. of

Nassau, 602 F.Supp.2d 1233, 1237–38 (M.D.Fla.2009)

(concluding that high school students were likely to

succeed on merits of their claim that school board’s

denial of their application to form organization

focusing on combating antigay harassment and

discrimination and educating school community about

those issues violated EAA and First Amendment

despite board’s contentions that organization would be

disruptive, there was no limited open forum at high

school regarding sexual orientation discussion, and

group’s message violated state’s abstinence only

policy); accord, Boyd Cnty. High Sch. Gay Straight

Alliance v. Bd. of Educ. of Boyd Cnty., 258 F.Supp.2d

667, 688–91 (E.D.Ky.2003).

As a result, Plaintiffs’ claims under the First Amendment and EAA survive Defendants’ motions to dismiss.

E. Plaintiffs’ Claim for Punitive Damages Against the District As stated above in Part I.D. of this Decision and Order, Defendants argue that Plaintiffs’ claim for punitive damages must be dismissed because they may not be imposed against a school district. The Court agrees with Defendants. See Pierce ex rel. Pierce v. Sullivan W. Cent. Sch. Dist., 379 F.3d 56, 58 n. 3 (2d Cir.2004) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 [1981] ). As a result, Plaintiffs’ claim for punitive damages against the District is dismissed.
ACCORDINGLY, it is
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Pratt v. Indian River Cent. School Dist., 803 F.Supp.2d 135 (2011)

ORDERED that Defendants’ motions for summary judgment (Dkt. Nos. 30, 56) are DENIED without prejudice; and it is further
ORDERED that Defendants’ motions to dismiss for failure to state a claim (Dkt. Nos. 30, 56) are GRANTED in part and DENIED in part in the following respects:
(1) Plaintiffs’ claims under the NYHRL, Plaintiff A.E.P.’s claim under Article 1 § 8 of the New York

State Constitution, and Plaintiffs’ claim for punitive damages against the District are DISMISSED for failure to state a claim upon which relief can be granted; and
(2) the remainder of Plaintiffs’ claims survive Defendants’ motions to dismiss for failure to state a claim.
	  

14

 
 Case 7:09-cv-00411-GTS-TWD Document 30-2 Filed 06/12/09 Page 1 of 9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _________________________________________________________________

CHARLES PATRICK PRATT and A.E.P. through her parents and next friends Bobbi Lynn Petranchuk and Todd Edward Petranchuk,

Plaintiffs, v.

ATTORNEY DECLARATION 7:09-cv-411 (GTS/GHL)

INDIAN RIVER CENTRAL SCHOOL DISTRICT; INDIAN RIVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION; JAMES KETTRICK, Superintendent of Indian River Central School District, in his official and individual Capacities; TROY DECKER, Principal of Indian River High School, in his official and Individual capacities; and JAY BROWN, JOHN DAVIS, KENDA GRAY, AMABLE TURNER and PATRICIA HENDERSON, IN their individual capacities,

Defendants.

_________________________________________________________________

STATE OF NEW YORK ) COUNTY OF ONONDAGA ) ss.:

I, FRANK W. MILLER, do hereby declare and affirm:

1. I am an attorney at law duly licensed to practice law in the State of New

York and the principal of the Law Firm of Frank W. Miller, attorneys for the Defendants Indian

River Central School District, Indian River Central School District Board of Education, James

Kettrick, Superintendent of Indian River Central School District, in his official and individual

1

Case 7:09-cv-00411-GTS-TWD Document 30-2 Filed 06/12/09 Page 2 of 9

Capacities, Troy Decker, Principal of Indian River High School, in his official and individual

capacities, and Jay Brown, John Davis, Kenda Gray, Amable Turner and Patricia Henderson in

their individual capacities, (hereinafter, collectively referred to as “the Defendants”) and

represent them in connection with the above-referenced matter.

2. I submit this attorney declaration in support of the Defendants’ motion to

dismiss and for summary judgment pursuant to FRCP Rules12(b)(1), 12(b)(2),12(b)(6), and 56.

3. The Complaint fails to state a claim. The causes of action brought

pursuant to state law are barred by the applicable statute of limitations and further barred by the

Plaintiffs’ failure to file a notice of claim, or plead compliance with the notice of claim filing

requirements. Additional grounds for dismissal are set forth below, and in the accompanying

papers.

4.

The Defendants bring the instant combined motion to dismiss/motion for

summary judgment to obtain an order dismissing the Plaintiffs’ Complaint with prejudice.

5. The relevant procedural background in this matter is as follows. Prior to

commencing this suit, the Plaintiffs did not file any notice of claim, as required in order to

pursue the claims brought under state law. See Affidavit of James Kettrick (“Aff. of Kettrick”).

The Plaintiffs filed the instant civil action on April 8, 2009. See Ex. “A” attached hereto. The

Answer was filed on May 4, 2009. See Ex. “B.” Pre-trial discovery has not yet been completed.

The Complaint contains the following claims for relief:

First claim for relief – Equal Access Act (EAA), 20 U.S.C. § 4071, et seq., brought by Plaintiff

Charles Pratt (“Pratt”) alleging a violation of the EEA by defendants school board, school

district, and Kettrick in his individual and official capacity;

2

Case 7:09-cv-00411-GTS-TWD Document 30-2 Filed 06/12/09 Page 3 of 9
Second claim for relief- EAA brought by Plaintiff, AEP against defendants school board, school district, and Kettrick in his individual and official capacity, Decker in his individual and official capacity, and Brown in his individual capacity. Third claim for relief – U.S. Constitution, Amendment I, denial of free speech and free association brought by Plaintiff Pratt against defendants school board, school district, and Kettrick in his individual and official capacity. Fourth claim for relief - U.S. Constitution, Amendment I, denial of free speech and free association brought by Plaintiff AEP against defendants school board, school district, and Kettrick in his individual and official capacity, Decker in his individual and official capacity, and Brown in his individual capacity; Fifth claim for relief – U.S. Constitution, Amendment XIV, denial of equal protection on the basis of sexual orientation brought by Plaintiff Pratt against defendants school board, school district, and Kettrick and Decker in their individual and official capacities, and Davis, Turner and Gray in their individual capacities; Sixth claim for relief - U.S. Constitution, Amendment XIV, denial of equal protection on the basis of sex brought by Plaintiff Pratt against defendants school board, school district, and Kettrick, and Decker in their individual and official capacities, and Davis, Turner and Gray in their individual capacities; Seventh claim for relief – Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681, et seq., discrimination on the basis of sex brought by Plaintiff Pratt against defendants school board and school district;
3

Case 7:09-cv-00411-GTS-TWD Document 30-2 Filed 06/12/09 Page 4 of 9
Eight claim for relief – New York State Constitution, Article I, § 8 denial of free speech, brought by Plaintiff AEP against defendants Kettrick and Decker in their individual and official capacities, and Brown in his individual capacity ; Ninth claim for relief – New Human Rights Law, Executive Law § 296(6), discrimination on the basis of sexual orientation, brought by Plaintiff Pratt against defendants, Turner, Gray, Henderson and Davis in their individual capacities; Tenth claim for relief - New Human Rights Law, Executive Law § 296(6), discrimination on the basis of sex, brought by Plaintiff Pratt against defendants, Turner, Gray, Henderson and Davis in their individual capacities; Eleventh claim for relief – New York Civil Rights Law§§ 40-c, 40-d discrimination based on sexual orientation brought by Plaintiff Pratt against defendants, Turner, Gray, Henderson, and Davis in their individual capacities; Twelfth claim for relief - New York Civil Rights Law§§ 40-c, 40-d discrimination based on sex brought by Plaintiff Pratt against defendants Turner, Gray, Henderson, and Davis in their individual capacities; Thirteenth claim for relief – New York Human Rights Law, New York Executive Law § 296 discrimination on the basis of perceived sexual orientation and/or anti-gay animus brought by Plaintiff AEP against defendants school district, board of education, Kettrick and Decker in their official and individual capacities, and Brown in his individual capacity; Fourteenth claim for relief - New York Civil Rights Law§ 40-c, discrimination on the basis of perceived sexual orientation and/or anti-gay animus, brought by Plaintiff AEP against Defendants school district, board of education, Kettrick and Decker in their official and individual capacities, and Brown in his individual capacity.
4

Case 7:09-cv-00411-GTS-TWD Document 30-2 Filed 06/12/09 Page 5 of 9
6. The relevant factual background is as follows. Pratt’s date of birth is August 16, 1988, hence, he turned 18 years old on August 16, 2006. See Kettrick Aff. Pratt attended kindergarten, primary school (grades 1-4), middle school (grades 5-8) in the District. See Aff. of Kettrick. Pratt also attended high school in the District for a limited period of time. See Aff. of Kettrick. Pratt entered high school in the ninth grade in the fall of 2002. See Aff. of Kettrick; see also Ex. “A,” para. 39. During the 2002-2003 school-year, Pratt did not attend school in the District after May 4, 2003 and did not return to the District until the start of the next school-year in September of 2003. See Kettrick Aff. Pratt started 9th grade in the District for the second time in the fall of 2003, and his last day attending the District during the 2003-2004 school year was January 4, 2004. See Aff. of Kettrick. Pratt did not attend one day of school in the District’s high school after January 4, 2004 until the start of the 2004-2005 school-year in September of 2004. See Aff. of Kettrick. Pratt did not attend summer school during the summer of 2003 or the summer of 2004. See Aff. of Kettrick. The summer vacation period in the District for the summer immediately preceding the 2003-2004 school-year started immediately after graduation, which took place on June 27, 2003, and lasted until September 3, 2003. See Aff. of Kettrick. The summer vacation period in the District for the summer immediately preceding the 2004-2005 school-year started immediately after graduation on June 25, 2004, and lasted until September 7, 2004. See Aff. of Kettrick. Pratt returned very briefly to the District in the fall of 2004. See Aff. of Kettrick; See Ex. “A” para. 16 ( alleges Pratt attended the District for approximately three weeks in the fall of 2004). After the fall of 2004, Pratt never returned to the District. See Aff. of Kettrick. AEP is currently a sophomore in the District’s high school. See Ex. “A”, para. 9. A “Gay Straight Alliance,” club of the type referenced in the Complaint currently exists in the District’s high school. See Aff. of Kettrick.
5

Case 7:09-cv-00411-GTS-TWD Document 30-2 Filed 06/12/09 Page 6 of 9
7. The following exhibits are attached hereto in support of the Defendants’ motion:
Exhibit A: Complaint; Exhibit B: Answer. 8. Also submitted in support of the Defendants’ motion is the affidavit of James Kettrick, and the Defendants’ Statement of Material Undisputed Facts. 9. Upon information and belief, all state law claims in the Complaint must be dismissed because the Plaintiffs failed to file a timely and proper notice of claim prior to commencing the instant civil action. 10. Upon information and belief, all of the state law claims in the Complaint must be dismissed because the Plaintiffs failed to plead compliance with the statutory notice of claim requirements. 11. Upon information and belief, all of the state law claims in the Complaint asserted by Pratt must be dismissed because they are time barred. 12. Upon information and belief, the state law claims in the Complaint asserted by Pratt, in addition to being subject to dismissal for the reasons stated above, must be dismissed because they otherwise fail to state a claim for the reasons set forth in the accompanying memorandum of law. 13. Upon information and belief, the claims in the Complaint brought pursuant to U.S. Constitution and federal statutes are subject to dismissal for failure to state a claim for reasons set forth in the accompanying memorandum of law. 14. Upon information and belief, the District’s Board of Education is not a proper party in this proceeding and should be dismissed from this action.
6

Case 7:09-cv-00411-GTS-TWD Document 30-2 Filed 06/12/09 Page 7 of 9
15. Upon information and belief, the alleged conduct fails to satisfy the applicable severe or pervasive standard for hostile environment claims, and therefore the Title IX claims should be dismissed.
16. Upon information and belief, the EAA claims and the claims brought pursuant to the First Amendment to the U.S. Constitution are moot and should be dismissed as a “Gay Straight Alliance” club of the type described in the Complaint is currently operating in the District.
17. Upon information and belief, the EAA does not provide for the award of compensatory and punitive damages against the Defendants.
18. Upon information and belief, Title IX cannot be relied upon to support a cause of action seeking recovery on the basis of sexual orientation.
19. Upon information and belief, the Title IX claims must be dismissed because the Complaint does not allege that members of the opposite sex who were similarly situated to Pratt were treated more favorably than Pratt.
20. Upon information and belief, the Title IX claims must be dismissed because the Complaint does not identify any District policy that discriminates against students on the basis of sex.
21. Upon information and belief, the Fourteenth Amendment claims are subject to dismissal as the Complaint does not allege the existence of any school district policy aimed at homosexual students that would render a Fourteenth Amendment claim plausible.
22. Further, upon information and belief, the Fourteenth Amendment claim also fails as it does not identify others who are similarly situated in all material ways who were allegedly treated more favorably than the Plaintiffs.
7

Case 7:09-cv-00411-GTS-TWD Document 30-2 Filed 06/12/09 Page 8 of 9

23. For all of the reasons set forth above and in the Defendants’

accompanying moving papers, the Defendants respectfully request that the Complaint be

dismissed with prejudice.

Dated: June 12, 2009 East Syracuse, New York

Respectfully submitted,

The Law Firm of Frank W. Miller

By: s/Frank W. Miller, Esq. Bar Roll No.: 102203 Attorneys for Defendants Indian River Central School District, et. al. Office and Post Office Address: 6575 Kirkville Road East Syracuse, New York 13057 Telephone: 315-234-9900 Facsimile: 315-234-9908 fmiller@fwmillerlawfirm.com

TO: Michael Kavey, Esq. Attorneys for Plaintiffs Lambda Legal Defense Fund, Inc. 120 Wall Street, Suite 1500 New York, NY 10005-3904 mkavey@lamdalegal.org Via electronic filing
Hayley J. Gorenberg, Esq. Attorneys for Plaintiffs Lambda Legal Defense and Education Fund 120 Wall Street, Suite 1500 New York, NY 10005 hgorenberg@lambdalegal.org Via electronic filing
Sudwiti Chanda, Esq. Attorneys for Plaintiffs Kirkland & Ellis, LLP 153 East 53rd Street New York, NY 10022-4611 schanda@kirkland.com Via electronic filing

8

Case 7:09-cv-00411-GTS-TWD Document 30-2 Filed 06/12/09 Page 9 of 9 Adam T. Humann, Esq. Attorneys for Plaintiffs Kirkland & Ellis, LLP 153 East 53rd Street New York, NY 10022-4611 adam.humann@kirkland.com Via electronic filing Clerk United States District Court Northern District of New York Syracuse, New York Via electronic filing
9

 
 Case 7:09-cv-00411-GTS-TWD Document 30-5 Filed 06/12/09 Page 1 of 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
CHARLES PATRICK PRATT and A.E.P. through her parents and next friends Bobbi Lynn Petranchuk and Todd Edward Petranchuk,
Plaintiffs,
V.
INDIAN RIVER CENTRAL SCHOOL DISTRICT; INDIAN RIVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION; JAMES KETTRICK, Superintendent of Indian River Central School District, in his official and individual Capacities; TROY DECKER, Principal of Indian River High School, in his official and Individual capacities; and JAY BROWN, JOHN DAVIS, KENDRA GRAY, AMABLE TURNER and PATRICIA HENDERSON, IN their individual capacities,
Defendants.

AFFIDAVIT OF JAMES KETTRICK 7:09-cv-411 (GTS/GHL)

STATE OF NEW YORK

)

COUNTY OF JEFFERSON ) ss.:

I, JAMES KETTRICK, being duly sworn, depose and state that:

1. I am the Superintendent for the Indian River Central School District (the "District") and

I have been in this position since 2006. As such, I am fully familiar with the facts and circumstances

set forth herein. The information set forth herein is based on my personal knowledge and/or my review

of District records kept in the normal course of business.

Case 7:09-cv-00411-GTS-TWD Document 30-5 Filed 06/12/09 Page 2 of 3
2. I submit this affidavit in support of the Defendants' motion to dismiss/motion for summary judgment in connection with the above referenced matter.
3. As District Superintendent, I am always advised when any type oflegal proceedings are commenced against the District. For example, if the District Clerk is served with a Notice of Claim, a discrimination complaint, or any other types of legal complaints, the Clerk immediately forwards a copy of the same to my attention. I have reviewed our relevant District records and see no evidence that the Plaintiffs in this case ever served a Notice of Claim upon the District at any time, and I do not believe that she ever did so.
4. Plaintiff Pratt's date of birth is August 16, 1988, hence, he turned 18 years old on August 16,2006. Pratt attended kindergarten, primary school (grades 1-4), middle school (grades 5-8) in the District. Pratt also attended high school in the District for a limited period oftime. Pratt entered high school in the ninth grade in the fall of 2002. During the 2002-2003 school-year, Pratt did not attend school in the District after May 4, 2003 and did not return to the District until the start of the next school-year in September of2003. Pratt started 91h grade in the District for the second time in the fall of2003, and his last day attending the District during the 2003-2004 school year was January 4, 2004. Pratt did not attend one day of school in the District's high school after January 4, 2004 until the start of the 2004-2005 school-year in September of 2004.
5. Pratt did not attend summer school during the summer of2003 or the summer of2004. The summer vacation period in the District for the summer immediately preceding the 2003-2004 school-year started immediately after graduation, which took place on June 27, 2003, and lasted until September 3, 2003. The summer vacation period in the District for the summer immediately preceding the 2004-2005 school-year started immediately after t:,>raduation on June 25, 2004, and lasted until September 7, 2004. Pratt returned very briefly to the District in the fall of2004. After the fall of2004,
2

Case 7:09-cv-00411-GTS-TWD Document 30-5 Filed 06/12/09 Page 3 of 3 Pratt never returned to the District. It should be noted that the lengths of the summer vacation periods described above is typical for the District since the time Pratt started attending.
6. AEP is currently a sophomore in the District's high school. A "Gay Straight Alliance," club of the type referenced in the Complaint currently exists in the District's high school.
Sworn to me before me this day of June, 2009.
Notary Public
SHAJtON R. NLLS Notaty Pdlie. StattofNew York
No. 01Mleel2321
Qualified in ...... County ,.,,;,-:ion Expires / 0 -Z.J-t<>
3

 
 Case 7:09-cv-00411-GTS-TWD Document 30-9 Filed 06/12/09 Page 1 of 4

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _________________________________________________________________

CHARLES PATRICK PRATT and A.E.P. through her parents and next friends Bobbi Lynn Petranchuk and Todd Edward Petranchuk,

Plaintiffs, v.

DEFENDANTS’ STATEMENT OF MATERIAL FACTS 7:09-cv-411 (GTS/GHL)

INDIAN RIVER CENTRAL SCHOOL DISTRICT; INDIAN RIVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION; JAMES KETTRICK, Superintendent of Indian River Central School District, in his official and individual Capacities; TROY DECKER, Principal of Indian River High School, in his official and Individual capacities; and JAY BROWN, JOHN DAVIS, KENDA GRAY, AMABLE TURNER and PATRICIA HENDERSON, in their individual capacities,

Defendants.

_________________________________________________________________

STATE OF NEW YORK ) COUNTY OF ONONDAGA ) ss.:

Defendants Indian River Central School District, Indian River Central School District

Board of Education, James Kettrick, Superintendent of Indian River Central School District, in

his official and individual Capacities, Troy Decker, Principal of Indian River High School, in his

official and individual capacities, and Jay Brown, John Davis, Kenda Gray, Amable Turner and

Patricia Henderson in their individual capacities, (hereinafter, collectively referred to as “the

1

Case 7:09-cv-00411-GTS-TWD Document 30-9 Filed 06/12/09 Page 2 of 4
Defendants”) by and through their attorneys, submit the following Statement of Material Facts showing that no genuine issue exists requiring a trial and that Plaintiff’s Complaint should be dismissed:
1. Pratt’s date of birth is August 16, 1988, hence, he turned 18 years old on August 16, 2006. See Kettrick Aff.
2. Pratt attended kindergarten, primary school (grades 1-4), middle school (grades 58) in the District. See Aff. of Kettrick.
3. Pratt entered high school in the ninth grade in the fall of 2002, however, during the 2002-2003 school-year, Pratt did not attend school in the District after May 4, 2003, and did not return to the District until the start of the next school-year in September of 2003. See Aff. of Kettrick; see also Ex. “A,” para. 39.
4. Pratt started 9th grade in the District for the second time in the fall of 2003, and his last day attending the District during the 2003-2004 school year was January 4, 2004. See Aff. of Kettrick.
5. Pratt did not attend one day of school in the District’s high school after January 4, 2004 until the start of the 2004-2005 school year in September of 2004. See Aff. of Kettrick.
6. Pratt did not attend summer school during the summer of 2003 or the summer of 2004. See Aff. of Kettrick.
7. The summer vacation period in the District for the summer immediately preceding the 2003-2004 school-year started immediately after graduation, which took place on June 27, 2003, and lasted until September 3, 2003. See Aff. of Kettrick.
2

Case 7:09-cv-00411-GTS-TWD Document 30-9 Filed 06/12/09 Page 3 of 4

8. The summer vacation period in the District for the summer immediately preceding the 2004-2005 school-year started immediately after graduation on June 25, 2004, and lasted until September 7, 2004. See Aff. of Kettrick.
9. Pratt returned very briefly to the District in the fall of 2004. See Aff. of Kettrick; See Ex. “A” para. 16 (alleges Pratt attended the District for approximately three weeks in the fall of 2004).
10. After the fall of 2004, Pratt never returned to the District. See Aff. of Kettrick. 11. AEP is currently a sophomore in the District’s high school. See Aff. of Kettrick. 12. A “Gay Straight Alliance,” club of the type referenced in the Complaint currently exists in the District’s high school. See Aff. of Kettrick. 13. The Plaintiffs did not file any Notice of Claim with the District prior to commencing the instant federal action. See Aff. of Kettrick.

Dated: June 12, 2009 East Syracuse, New York

Respectfully submitted,
The Law Firm Of Frank W. Miller
By: s/Frank W. Miller, Esq. Bar Roll No.: 102203 Attorneys for Defendants Indian River Central School District, et. al. Office and Post Office Address: 6575 Kirkville Road East Syracuse, New York 13057 Telephone: 315-234-9900 Facsimile: 315-234-9908 fmiller@fwmillerlawfirm.com

3

Case 7:09-cv-00411-GTS-TWD Document 30-9 Filed 06/12/09 Page 4 of 4
TO: Clerk U. S. District Court Northern District of New York Syracuse, New York Via Electronic Filing
Michael Kavey, Esq. Attorneys for Plaintiffs Lambda Legal Defense Fund, Inc. 120 Wall Street, Suite 1500 New York, NY 10005-3904 mkavey@lamdalegal.org Via electronic filing
Hayley J. Gorenberg, Esq. Attorneys for Plaintiffs Lambda Legal Defense and Education Fund 120 Wall Street, Suite 1500 New York, NY 10005 hgorenberg@lambdalegal.org Via electronic filing
Sudwiti Chanda, Esq. Attorneys for Plaintiffs Kirkland & Ellis, LLP 153 East 53rd Street New York, NY 10022-4611 schanda@kirkland.com Via electronic filing
Adam T. Humann, Esq. Attorneys for Plaintiffs Kirkland & Ellis, LLP 153 East 53rd Street New York, NY 10022-4611 adam.humann@kirkland.com Via electronic filing
4

 
 Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 1 of 28
CLOSED
U.S. District Court Northern District of New York − Main Office (Syracuse) [LIVE − Version 6.1]
(Watertown) CIVIL DOCKET FOR CASE #: 7:09−cv−00411−GTS−TWD

Pratt et al v. Indian River Central School District et al Assigned to: Judge Glenn T. Suddaby Referred to: Magistrate Judge Therese Wiley Dancks Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/08/2009 Date Terminated: 06/21/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Charles Patrick Pratt

represented by Adam T. Humann Kirkland, Ellis Law Firm − NY Office 153 East 53rd Street New York, NY 10022 212−446−4800 Fax: 212−446−4900 Email: adam.humann@kirkland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hayley J. Gorenberg Lambda Legal Defense &Education Fund 120 Wall Street Suite1500 New York, NY 10005 212−809−8585 Fax: 212−809−0055 Email: hgorenberg@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa V. LeCointe−Cephas Kirkland, Ellis Law Firm − NY Office 601 Lexington Avenue New York, NY 10022 212−446−4800 Fax: 212−446−4900 Email: lisa.lecointe−cephas@kirkland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Maura M. Klugman Kirkland, Ellis Law Firm − NY Office 601 Lexington Avenue New York, NY 10022 212−446−4800 Fax: 212−446−4900 Email: maura.klugman@kirkland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael D. Kavey Lambda Legal Defense &Education Fund 120 Wall Street Suite1500 New York, NY 10005 917−623−8884

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 2 of 28

Fax: 212−809−0055 Email: mkavey@lambdalegal.org TERMINATED: 12/20/2010 LEAD ATTORNEY

Sudwiti Chanda Kirkland, Ellis Law Firm − NY Office 153 East 53rd Street New York, NY 10022 212−446−4800 Fax: 212−446−4900 Email: schanda@kirkland.com TERMINATED: 02/18/2010 LEAD ATTORNEY PRO HAC VICE

Thomas W. Ude , Jr. Lambda Legal Defense &Education Fund 120 Wall Street Suite1500 New York, NY 10005 212−809−8585 Fax: 212−809−0055 Email: tude@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexandra P. Kolod Kirkland, Ellis Law Firm − NY Office 601 Lexington Avenue New York, NY 10022 212−446−4800 Fax: 212−446−4900 Email: alexandra.kolod@kirkland.com PRO HAC VICE ATTORNEY TO BE NOTICED

Robert A. Gretch Kirkland, Ellis Law Firm − NY Office 601 Lexington Avenue New York, NY 10022 212−446−4800 Fax: 212−446−6460 Email: robert.gretch@kirkland.com PRO HAC VICE ATTORNEY TO BE NOTICED

Vickie Reznik Kirkland, Ellis Law Firm − NY Office 601 Lexington Avenue New York, NY 10022 212−446−4800 Fax: 212−446−4900 Email: vickie.reznik@kirkland.com TERMINATED: 06/19/2012 PRO HAC VICE

Plaintiff
A.E.P. through her parents and next friends Bobbi Lynn Petranchuk and Todd Edward Petranchuk

represented by Adam T. Humann (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 3 of 28
Hayley J. Gorenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa V. LeCointe−Cephas (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maura M. Klugman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael D. Kavey (See above for address) TERMINATED: 12/20/2010 LEAD ATTORNEY
Sudwiti Chanda (See above for address) TERMINATED: 02/18/2010 LEAD ATTORNEY PRO HAC VICE
Thomas W. Ude , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra P. Kolod (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Gretch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Vickie Reznik (See above for address) TERMINATED: 06/19/2012 PRO HAC VICE

V. Defendant Indian River Central School District

represented by Frank W. Miller Office of Frank W. Miller 6575 Kirkville Road East Syracuse, NY 13057 315−234−9900 Fax: 315−234−9908 Email: fmiller@fwmillerlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bryan N. Georgiady Office of Frank W. Miller 6575 Kirkville Road

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 4 of 28

East Syracuse, NY 13057 315−234−9900 Fax: 315−234−9908 Email: bgeorgiady@fwmillerlawfirm.com ATTORNEY TO BE NOTICED

Charles C. Spagnoli Office of Frank W. Miller 6575 Kirkville Road East Syracuse, NY 13057 315−234−9900 Fax: 315−234−9908 Email: cspagnoli@fwmillerlawfirm.com ATTORNEY TO BE NOTICED

Charles E. Symons Ferrara, Fiorenza Law Firm 5010 Campuswood Drive East Syracuse, NY 13057 315−437−7600 Fax: 315−437−7744 Email: cesymons@ferrarafirm.com TERMINATED: 12/17/2009

Michael J. Livolsi Mackenzie, Hughes Law Firm 101 South Salina Street PO Box 4967 Syracuse, NY 13221−4967 315−474−7571 Fax: 315−474−6409 Email: mlivolsi@mackenziehughes.com TERMINATED: 08/12/2010

Defendant
Indian River Central School District Board of Education

represented by Frank W. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan N. Georgiady (See above for address) ATTORNEY TO BE NOTICED

Charles C. Spagnoli (See above for address) ATTORNEY TO BE NOTICED

Charles E. Symons (See above for address) TERMINATED: 12/17/2009

Michael J. Livolsi (See above for address) TERMINATED: 08/12/2010

Defendant
James Kettrick Superintendent of Indian River Central School District, in his official and individual capacities

represented by Frank W. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan N. Georgiady (See above for address)

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 5 of 28

ATTORNEY TO BE NOTICED

Charles C. Spagnoli (See above for address) ATTORNEY TO BE NOTICED

Charles E. Symons (See above for address) TERMINATED: 12/17/2009

Michael J. Livolsi (See above for address) TERMINATED: 08/12/2010

Defendant
Troy Decker Principal of Indian River High School, in his official and individual capacities

represented by Frank W. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan N. Georgiady (See above for address) ATTORNEY TO BE NOTICED

Charles C. Spagnoli (See above for address) ATTORNEY TO BE NOTICED

Charles E. Symons (See above for address) TERMINATED: 12/17/2009

Michael J. Livolsi (See above for address) TERMINATED: 08/12/2010

Defendant
Jay Brown in individual capacities

represented by Frank W. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan N. Georgiady (See above for address) ATTORNEY TO BE NOTICED

Charles C. Spagnoli (See above for address) ATTORNEY TO BE NOTICED

Charles E. Symons (See above for address) TERMINATED: 12/17/2009

Michael J. Livolsi (See above for address) TERMINATED: 08/12/2010

Defendant
John Davis in individual capacities

represented by Frank W. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 6 of 28

Defendant Kenda Gray in individual capacities
Defendant Amable Turner in individual capacities
Defendant

Bryan N. Georgiady (See above for address) ATTORNEY TO BE NOTICED
Charles C. Spagnoli (See above for address) ATTORNEY TO BE NOTICED
Charles E. Symons (See above for address) TERMINATED: 12/17/2009
Michael J. Livolsi (See above for address) TERMINATED: 08/12/2010
represented by Frank W. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bryan N. Georgiady (See above for address) ATTORNEY TO BE NOTICED
Charles C. Spagnoli (See above for address) ATTORNEY TO BE NOTICED
Charles E. Symons (See above for address) TERMINATED: 12/17/2009
Michael J. Livolsi (See above for address) TERMINATED: 08/12/2010
represented by Frank W. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bryan N. Georgiady (See above for address) ATTORNEY TO BE NOTICED
Charles C. Spagnoli (See above for address) ATTORNEY TO BE NOTICED
Charles E. Symons (See above for address) TERMINATED: 12/17/2009
Michael J. Livolsi (See above for address) TERMINATED: 08/12/2010
represented by

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Patricia Henderson in individual capacities

Frank W. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan N. Georgiady (See above for address) ATTORNEY TO BE NOTICED

Charles C. Spagnoli (See above for address) ATTORNEY TO BE NOTICED

Charles E. Symons (See above for address) TERMINATED: 12/17/2009

Michael J. Livolsi (See above for address) TERMINATED: 08/12/2010

Defendant
Brian Moore Individually

represented by Frank W. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bryan N. Georgiady (See above for address) ATTORNEY TO BE NOTICED

Charles C. Spagnoli (See above for address) ATTORNEY TO BE NOTICED

Michael J. Livolsi (See above for address) TERMINATED: 08/12/2010

Amicus United States of America

represented by William F. Larkin Office of the United States Attorney − Syracuse P.O. Box 7198 100 South Clinton Street Syracuse, NY 13261−7198 315−448−0672 Fax: 315−448−0646 Email: william.larkin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

William H. Pease Office of William H. Pease 623 1st Street Liverpool, NY 13088 315−374−4248 Email: whpease@outlook.com TERMINATED: 05/09/2011

Material Witness
Jefferson County Probation Department

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 8 of 28
Jefferson County Attorney's Office 175 Arsenal Street Watertown, NY 13601

Date Filed 04/08/2009
04/08/2009
04/08/2009 04/08/2009 04/08/2009 04/08/2009 04/08/2009 04/08/2009 04/08/2009 04/08/2009 04/08/2009 04/09/2009
04/09/2009
04/09/2009
04/09/2009
04/16/2009
04/16/2009 04/16/2009

# Docket Text
1 COMPLAINT against Troy Decker, Jay Brown, John Davis, Kenda Gray, Amable Turner, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick (Filing fee $350 receipt number 1263269) filed by Charles Patrick Pratt, A.E.P.. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibits)(sfp, ) (Entered: 04/08/2009)
2 G.O. 25 FILING ORDER ISSUED: Rule 16 Initial Conference set for 8/19/2009 at 11:00 AM by Telephone before Magistrate Judge George H. Lowe. Civil Case Management Plan due by 8/10/2009. (sfp, ) (Entered: 04/08/2009)
3 Summons Issued as to Jay Brown. (sfp, ) (Entered: 04/08/2009)
4 Summons Issued as to John Davis. (sfp, ) (Entered: 04/08/2009)
5 Summons Issued as to Troy Decker. (sfp, ) (Entered: 04/08/2009)
6 Summons Issued as to Kenda Gray. (sfp, ) (Entered: 04/08/2009)
7 Summons Issued as to Patricia Henderson. (sfp, ) (Entered: 04/08/2009)
8 Summons Issued as to Indian River Central School District. (sfp, ) (Entered: 04/08/2009)
9 Summons Issued as to Indian River Central School District Board of Education. (sfp, ) (Entered: 04/08/2009)
10 Summons Issued as to James Kettrick. (sfp, ) (Entered: 04/08/2009)
11 Summons Issued as to Amable Turner. (sfp, ) (Entered: 04/08/2009)
12 MOTION for Limited Admission Pro Hac Vice of Sudwiti Chanda Filing fee $30, receipt number 02060000000001264524. filed by Charles Patrick Pratt, A.E.P.. (Attachments: # 1 Verified Petition, # 2 Affidavit of Sponsor, # 3 Certificate of Good Standing, # 4 E−Filing Registration Form, # 5 Proposed Order/Judgment, # 6 Certificate of Service) Motions referred to George H. Lowe. (Kavey, Michael) (Entered: 04/09/2009)
13 MOTION for Limited Admission Pro Hac Vice of Adam T. Humann Filing fee $30, receipt number 02060000000001264557. filed by Charles Patrick Pratt, A.E.P.. (Attachments: # 1 Verified Petition, # 2 Affidavit of Sponsor, # 3 Certificate of Good Standing, # 4 E−Filing Registration Form, # 5 Proposed Order/Judgment, # 6 Certificate of Service) Motions referred to George H. Lowe. (Kavey, Michael) (Entered: 04/09/2009)
14 ORDER granting 12 Motion for Limited Admission Pro Hac Vice as to Sudwiti Chanda. Signed by Magistrate Judge George H. Lowe on 4/9/09. (rjb, ) (Entered: 04/09/2009)
15 ORDER granting 13 Motion for Limited Admission Pro Hac Vice as to Adam T. Humann. Signed by Magistrate Judge George H. Lowe on 4/9/09. (rjb, ) (Entered: 04/09/2009)
16 AFFIDAVIT of Service for Summons and Complaint served on Amable Turner on 4/13/2009, filed by A.E.P.. (Chanda, Sudwiti) Modified on 4/16/2009 (amt). (Entered: 04/16/2009)
17 AFFIDAVIT of Service for Summons and Complaint Corrected served on Amable Turner on 4/13/2009, filed by A.E.P.. (Chanda, Sudwiti) (Entered: 04/16/2009)
18 AFFIDAVIT of Service for Summons and Complaint served on IRCSD Board of Education on 4/13/2009, filed by A.E.P.. (Chanda, Sudwiti) (Entered: 04/16/2009)

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 9 of 28

04/16/2009 04/16/2009 04/16/2009 04/16/2009 04/16/2009 04/16/2009 04/16/2009 04/22/2009 04/30/2009 05/04/2009
05/04/2009
05/05/2009
06/02/2009
06/11/2009 06/12/2009

19 AFFIDAVIT of Service for Summons and Complaint served on Jay Brown on 4/13/2009, filed by A.E.P.. (Chanda, Sudwiti) (Entered: 04/16/2009)
20 AFFIDAVIT of Service for Summons and Complaint served on Kenda Gray on 4/13/2009, filed by A.E.P.. (Chanda, Sudwiti) (Entered: 04/16/2009)
21 AFFIDAVIT of Service for Summons and Complaint served on Patricia Henderson on 4/13/2009, filed by A.E.P.. (Chanda, Sudwiti) (Entered: 04/16/2009)
22 AFFIDAVIT of Service for Summons and Complaint served on Troy Decker on 4/13/2009, filed by A.E.P.. (Chanda, Sudwiti) (Entered: 04/16/2009)
23 AFFIDAVIT of Service for Summons and Complaint served on Indian River Central School District on 4/13/2009, filed by A.E.P.. (Chanda, Sudwiti) (Entered: 04/16/2009)
24 AFFIDAVIT of Service for Summons and Complaint served on James Kettrick on 4/13/2009, filed by A.E.P.. (Chanda, Sudwiti) (Entered: 04/16/2009)
CLERK'S CORRECTION OF DOCKET ENTRY; Text of 16 Affidavit of Service was modified to reflect the correct name of the Deft served. (amt) (Entered: 04/16/2009)
25 NOTICE of Appearance by Michael D. Kavey on behalf of all plaintiffs (Kavey, Michael) (Entered: 04/22/2009)
26 AFFIDAVIT of Service for Summons &Complaint served on John Davis on 4/24/2009, filed by A.E.P.. (Chanda, Sudwiti) (Entered: 04/30/2009)
27 NOTICE of Appearance by Frank W. Miller on behalf of Troy Decker, Jay Brown, John Davis, Kenda Gray, Amable Turner, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick (Miller, Frank) (Entered: 05/04/2009)
28 Defendants' ANSWER to 1 Complaint, filed by Troy Decker, Jay Brown, John Davis, Kenda Gray, Amable Turner, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick. (Attachments: # 1 Supplement Certificate of Service)(Miller, Frank) (Entered: 05/04/2009)
TEXT NOTICE of Hearing CHANGE: The Initial Rule 16 Conference scheduled for 8/19/09 is hereby RESCHEDULED for 6/18/2009 at 09:30 AM before Magistrate Judge George H. Lowe; Civil Case Management Plan due by 6/15/2009. Plaintiff's attorney is responsible for initiating the call, using a teleconferencing service, and should call the chambers of Magistrate Judge George H. Lowe at (315) 234−8618, a dedicated conference line which may not be used for other purposes.(rjb, ) (Entered: 05/05/2009)
TEXT NOTICE of Hearing CHANGE: Pursuant to the request of Plaintiffs' counsel, the Initial Conference scheduled for 6/18/09 is hereby RESCHEDULED for 6/25/2009 at 09:30 AM before Magistrate Judge George H. Lowe; Civil Case Management Plan due by 6/22/2009. (rjb, ) (Entered: 06/02/2009)
29 Letter Motion from Sudwiti Chanda and Michael Kavey for Charles Patrick Pratt, A.E.P. requesting Civil Case Management Plan submitted to Judge Glenn T. Suddaby. (Chanda, Sudwiti) (Entered: 06/11/2009)
30 First MOTION for Summary Judgment /Motion to Dismiss, Motion Hearing set for 7/16/2009 10:00 AM in Syracuse before Judge Glenn T. Suddaby Response to Motion due by 6/29/2009 Reply to Response to Motion due by 7/6/2009. filed by Troy Decker, Jay Brown, John Davis, Kenda Gray, Amable Turner, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick. (Attachments: # 1 Declaration Attorney Declaration, # 2 Exhibit(s) Ex. A, Part 1 to Atty. Declaration, # 3 Exhibit(s) Ex. A, Part 2, and Ex. B to Atty. Declaration, # 4 Affidavit Affidavit of James Kettrick, # 5 Memorandum of Law Defs'. MOL in support of Motion to Dismiss/Motion for Summary Judgment, # 6 Supplement Attachments to Defs' MOL, Part 1, # 7 Supplement Attachments to Defs' MOL, Part 2, # 8 Statement of Material Facts Def's' Statement of Material Facts, # 9 Supplement Certificate of

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 10 of 28

06/15/2009 06/15/2009 06/19/2009 06/24/2009 06/25/2009
07/01/2009 07/02/2009 07/20/2009 07/27/2009 07/30/2009
08/03/2009

Service) (Miller, Frank) (Entered: 06/12/2009)
TEXT NOTICE of Hearing on # 30 MOTION for Summary Judgment//Motion to Dismiss,: Motion Hearing set for 7/15/2009 on submit before Judge Glenn T. Suddaby. No appearances necessary. Response to Motion due by 6/29/2009. Reply to Response to Motion due by 7/6/2009. Counsel are directed to forward a courtesy copy of all motion papers in excess of 50 pages directly to Judge Suddaby's chambers.(lmw) (Entered: 06/15/2009)
TEXT NOTICE: The Rule 16 conference scheduled for June 25, 2009 is hereby adjourned without date. The conference will be rescheduled, if necessary, once a decision has been issued on the 30 Motion for Summary Judgment/Motion to Dismiss. (rjb, ) (Entered: 06/15/2009)
31 NOTICE of Appearance by Charles E. Symons on behalf of Troy Decker, Jay Brown, John Davis, Kenda Gray, Amable Turner, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick (Symons, Charles) (Entered: 06/19/2009)
32 Letter Motion from Lambda Legal and Kirkland &Ellis LLP on behalf of Plaintiffs for Charles Patrick Pratt, A.E.P. requesting adjournment of briefing schedule submitted to Judge Suddaby and Judge Lowe. (Chanda, Sudwiti) (Entered: 06/24/2009)
TEXT ORDER granting Plaintiffs' # 32 request for an extension of the deadline for their response to Defendants' motion for summary judgment. In accordance with Plaintiffs' proposed motion−to−amend deadline set forth in their letter of 6/11/09, Plaintiffs shall have until 7/1/09, by which to file a motion to amend their Complaint. Upon the Court's issuance of its Decision and Order on Plaintiffs' motion to amend, the Court will reset the briefing schedule on Defendants' motion, including a deadline for any amendment or supplementation of the motion, should that be necessary. Authorized by Judge Glenn T. Suddaby on 6/25/09. (lmw) (Entered: 06/25/2009)
33 MOTION for Leave to File Amended Complaint filed by Charles Patrick Pratt, A.E.P.. (Attachments: # 1 Affidavit) Motions referred to George H. Lowe. (Chanda, Sudwiti) (Entered: 07/01/2009)
COURT TEXT NOTICE placing Plaintiff's 33 MOTION for Leave to File Amended Complaint on Magistrate Judge Lowe's 8/6/09 motion calendar; The motion will be ON SUBMIT − No appearances are necessary; Response to Motion due by 7/20/2009; Reply to Response to Motion due by 7/26/2009. (amt) (Entered: 07/02/2009)
34 RESPONSE in Opposition re 33 MOTION for Leave to File Amended Complaint filed by Troy Decker, Jay Brown, John Davis, Kenda Gray, Amable Turner, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick. (Attachments: # 1 Memorandum of Law Response brief in opposition to motion to amend, # 2 Affidavit Electronic certificate of service)(Symons, Charles) (Entered: 07/20/2009)
35 REPLY to Response to Motion re 33 MOTION for Leave to File Amended Complaint filed by Charles Patrick Pratt. (Attachments: # 1 Affidavit Affidavit of M. Kavey in Supp. of Reply Mem., # 2 Certificate of Service)(Kavey, Michael) (Entered: 07/27/2009)
36 MOTION for Limited Admission Pro Hac Vice of Maura Martin Klugman Filing fee $30, receipt number 02060000000001354958. filed by Charles Patrick Pratt, A.E.P.. (Attachments: # 1 Verified Petition, # 2 Affidavit of Sponsor, # 3 Klugman Certificate of Good Standing, NY, # 4 E−filing Registration, Klugman, # 5 Proposed Order/Judgment for Limited Pro Hac Vice Admission, Klugman, # 6 Certificate of Service) Motions referred to George H. Lowe. (Kavey, Michael) (Entered: 07/30/2009)
37 ORDER granting 36 Motion for Limited Admission Pro Hac Vice as to Maura Martin Klugman. Signed by Magistrate Judge George H. Lowe on 8/3/09. (rjb, ) (Entered: 08/03/2009)

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 11 of 28

10/08/2009
10/13/2009
10/15/2009
10/23/2009 12/04/2009 12/17/2009 12/18/2009
02/09/2010 02/18/2010 02/18/2010 02/18/2010 02/19/2010 02/19/2010 02/25/2010 03/05/2010

38 Letter Request / Letter Motion from attorney Charles E. Symons on behalf of defendants for Troy Decker, Jay Brown, John Davis, Kenda Gray, Amable Turner, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick requesting permission to submit a 2−page letter brief submitted to Judge Glenn T. Suddaby. (Symons, Charles) (Entered: 10/08/2009)
TEXT ORDER granting Defendants' # 38 Letter Request. Defendants are granted permission to file a letter brief limited to two pages by 10/16/09 with regard to the recent decision issued by the Appellate Division Second Department. Plaintiffs' are granted permission to file a response letter brief of no more than two pages by 10/23/09. Authorized by Judge Glenn T. Suddaby on 10/13/09. (lmw) (Entered: 10/13/2009)
39 / 2 page Letter Brief with attached cases, filed by Troy Decker, Jay Brown, John Davis, Kenda Gray, Amable Turner, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick. (Attachments: # 1 Supplement Certificate of Service)(Symons, Charles) Modified on 10/16/2009 (amt). (Entered: 10/15/2009)
40 LETTER BRIEF by Charles Patrick Pratt, A.E.P.. (Attachments: # 1 Supplement Certificate of Service)(Humann, Adam) (Entered: 10/23/2009)
41 NOTICE of Appearance by Thomas W. Ude, Jr on behalf of A.E.P., Charles Patrick Pratt (Attachments: # 1 Certificate of Service)(Ude, Thomas) (Entered: 12/04/2009)
42 NOTICE by Indian River Central School District (Symons, Charles) (Entered: 12/17/2009)
43 Letter Request / Letter Motion from attorney Frank W. Miller for Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Amable Turner requesting Removal of Charles E. Symons from list of "noticed" attorneys submitted to Judge, submitted to Clerk of District Court, Northern District of New York. (Miller, Frank) (Entered: 12/18/2009)
44 ORDER: Plaintiff's 33 Motion for Leave to File an amended complaint is GRANTED. The amended complaint is to be filed within ten days of this Order. Signed by Magistrate Judge George H. Lowe on 2/9/2010. (dmf) (Entered: 02/09/2010)
45 NOTICE by A.E.P., Charles Patrick Pratt Withdrawal of Counsel − Sudwiti Chanda (Humann, Adam) (Entered: 02/18/2010)
46 NOTICE by A.E.P., Charles Patrick Pratt of Filing First Amended Complaint (Attachments: # 1 Stipulation of Counsel of February 17, 2010, # 2 Certificate of Service)(Ude, Thomas) (Entered: 02/18/2010)
47 AMENDED COMPLAINT by A.E.P., Charles Patrick Pratt. (Attachments: # 1 Certificate of Service)(Ude, Thomas) Modified on 2/18/2010 (amt). (Entered: 02/18/2010)
48 NOTICE by A.E.P., Charles Patrick Pratt re 46 Notice (Other) Letter Attachment to Stipulation re Amended Complaint (Attachments: # 1 Letter of Counsel − Additional Attachment to Notice filed on February 18 2010)(Ude, Thomas) (Entered: 02/19/2010)
49 Summons Issued as to Brian Moore re: 47 Amended Complaint. (amt) (Entered: 02/19/2010)
50 AFFIDAVIT of Service for Summons and Amended Complaint served on Brian Moore on 2/22/2010, filed by A.E.P., Charles Patrick Pratt. (Humann, Adam) (Entered: 02/25/2010)
51 Defendant's ANSWER to 47 Amended Complaint, by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Attachments: # 1 Affidavit Certificate of

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 12 of 28

03/05/2010 04/14/2010 04/15/2010 05/19/2010 05/21/2010 06/11/2010
06/16/2010

Service)(Miller, Frank) Modified on 3/5/2010, to reflect correct document answering (mnm). (Entered: 03/05/2010)
52 NOTICE of Appearance by Frank W. Miller on behalf of Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner (Attachments: # 1 Affidavit Certificate of Service)(Miller, Frank) (Entered: 03/05/2010)
53 MOTION for Limited Admission Pro Hac Vice of Vickie Reznik Filing fee $30, receipt number 0206−1545569. filed by A.E.P., Charles Patrick Pratt. (Attachments: # 1 Verified Petition, # 2 Affidavit of Sponsor, # 3 Certificate of Good Standing, # 4 E−Filing Registration Form, # 5 Proposed Order/Judgment, # 6 Certificate of Service) Motions referred to George H. Lowe. (Ude, Thomas) (Entered: 04/14/2010)
54 ORDER granting 53 Motion for Limited Admission Pro Hac Vice as to Vickie Reznik. Signed by Magistrate Judge George H. Lowe on 4/15/10. (rjb, ) (Entered: 04/15/2010)
55 Letter Motion from Frank W. Miller for Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Amable Turner requesting further direction from the Court in light of the Courts prior Order in this matter, i.e., Docket Entry No. 54, regarding whether the Court wishes to establish a further briefing schedule for the motion to dismiss. submitted to Judge Glenn T. Suddaby. (Miller, Frank) (Entered: 05/19/2010)
NOTICE of Hearing on # 30 First MOTION for Summary Judgment /Motion to Dismiss : Motion Hearing set for 7/15/2010 on submit before Judge Glenn T. Suddaby. No appearances are necessary. Defendants may file, if they so choose, an amendment or supplement to the # 30 motion to dismiss by 6/11/10. Response to Motion due by 6/28/2010. Reply to Response to Motion due by 7/6/2010. Counsel are directed to forward a courtesy copy of all motion papers in excess of 50 pages directly to chambers.(lmw) (Entered: 05/21/2010)
56 SECOND MOTION to Dismiss Motion Hearing set for 7/15/2010 10:00 AM in Syracuse before Judge Glenn T. Suddaby Response to Motion due by 6/28/2010 Reply to Response to Motion due by 7/6/2010. filed by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Amable Turner. (Attachments: # 1 Statement of Material Facts Statement of Material Facts, # 2 Declaration Attorney Declaration of Michael J. Livolsi, # 3 Exhibit(s) Exhibit A to Declaration, # 4 Exhibit(s) Exhibit B to Declaration, # 5 Exhibit(s) Exhibit C to Declaration, # 6 Exhibit(s) Exhibit D to Declaration, # 7 Exhibit(s) Exhibit E to Declaration, # 8 Exhibit(s) Exhibit F to Declaration, # 9 Exhibit(s) Exhibit G to Declaration, # 10 Exhibit(s) Exhibit H to Declaration, # 11 Exhibit(s) Exhibit I to Declaration, # 12 Exhibit(s) Exhibit J to Declaration, # 13 Exhibit(s) Exhibit K to Declaration, # 14 Exhibit(s) Exhibit L to Declaration, # 15 Exhibit(s) Exhibit M to Declaration, # 16 Exhibit(s) Exhibit N to Declaration, # 17 Exhibit(s) Exhibit O to Declaration, # 18 Memorandum of Law Defendants' Memorandum of Law in Support of Defendants' Motion to Dismiss/Motion for Summary Judgment, # 19 Supplement Attachment 1 to MOL, # 20 Supplement Attachment 2 to MOL, # 21 Supplement Attachment 3 to MOL, # 22 Supplement Attachment 4 to MOL, # 23 Supplement Attachment 5 to MOL, # 24 Supplement Attachment 6 to MOL, # 25 Supplement Attachment 7 to MOL, # 26 Supplement Attachment 8 to MOL, # 27 Affidavit Certificate of Service) (Livolsi, Michael) (Entered: 06/11/2010)
TEXT NOTICE of Hearing on # 56 Amended MOTION to Dismiss : Motion Hearing set for 7/15/2010 on submit before Judge Glenn T. Suddaby. No personal appearances.Response to Motion due by 6/28/2010. Reply to Response to Motion due by 7/6/2010. Counsel are directed to forward a courtesy copy of all motion papers in excess of 50 pages directly to chambers.(lmw) (Entered: 06/16/2010)

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 13 of 28

06/18/2010 06/22/2010 06/28/2010 06/28/2010 07/01/2010
07/01/2010
07/02/2010 07/02/2010 07/13/2010
07/16/2010 07/19/2010 07/28/2010

57 Letter Motion from Plaintiffs for A.E.P., Charles Patrick Pratt requesting to file a response exceeding page limit submitted to Judge Suddaby. (Humann, Adam) (Entered: 06/18/2010)
TEXT ORDER granting Plaintiff's # 57 Letter Request to file an oversized memorandum of law not to exceed 35 pages in length. Authorized by Judge Glenn T. Suddaby on 6/22/10. (lmw) (Entered: 06/22/2010)
58 RESPONSE in Opposition re 56 Amended MOTION to Dismiss filed by A.E.P., Charles Patrick Pratt. (Attachments: # 1 Declaration, # 2 Affidavit, # 3 cert of service, # 4 Statement of Material Facts)(Ude, Thomas) (Entered: 06/28/2010)
59 AFFIDAVIT in Opposition re 56 Amended MOTION to Dismiss (Declaration of Maura M. Klugman) filed by A.E.P., Charles Patrick Pratt. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s))(Ude, Thomas) (Entered: 06/29/2010)
60 Letter Motion from Michael J. Livolsi, Esq. for Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner requesting permission to file a Reply Memorandum of Law which is not to exceed twenty (20) pages, as well as the Courts permission to file a reply on or before July 13, 2010 submitted to Judge Hon. Glenn T. Suddaby. (Livolsi, Michael) (Entered: 07/01/2010)
61 Letter Motion from Michael J. Livolsi, Esq. for Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner requesting permission to file a Reply Memorandum of Law which is not to exceed twenty (20) pages, as well as the Courts permission to file a reply on or before July 13, 2010 submitted to Judge Hon. Glenn T. Suddaby. (Attachments: # 1 Affidavit Certificate of Service)(Livolsi, Michael) (Entered: 07/01/2010)
CLERK'S CORRECTION OF DOCKET ENTRY: The Clerk has terminated the # 60 Letter Motion requesting permission to file a Reply Memorandum of Law which is not to exceed twenty (20) pages, as well as the Courts permission to file a reply on or before July 13, 2010 filed by Michael Livolsi, Esq., as it was amended / supplemented by the # 61 Letter Motion. (jmb) (Entered: 07/02/2010)
TEXT ORDER granting Defendants' # 61 Letter Request for an extension of time to file a reply to the # 56 2nd motion to dismiss until 7/13/10 and granting Defendants' request to file an oversized reply brief not to exceed 20 pages in length. Authorized by Judge Glenn T. Suddaby on 7/2/10. (lmw) (Entered: 07/02/2010)
62 REPLY to Response to Motion re 56 Amended MOTION to Dismiss filed by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Attachments: # 1 Memorandum of Law Reply Memorandum of Law in Support of Defendants' Motion to Dismiss/Motion for Summary Judgment, # 2 Affidavit Certficate of Service)(Livolsi, Michael) (Entered: 07/13/2010)
63 Letter Request / Letter Motion from attorney Michael J. Livolsi o/b/o Defendants for Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner requesting Permission to file a motion to amend Defendants' Answer to Plaintiffs' Amended Complaint submitted to Judge George H. Lowe. (Livolsi, Michael) (Entered: 07/16/2010)
TEXT ORDER: The Court has reviewed Dkt. No. 63. The Defendants' motion papers are to be filed on or before July 28, 2010; Plaintiffs' opposition papers are to be filed on or before August 11, 2010. There will be no oral argument unless the Court so directs. SO ORDERED by Magistrate Judge George H. Lowe on 7/19/10. (rjb, ) (Entered: 07/19/2010)
64 First MOTION Requesting an Order permitting Defendants to amend their Answer to Plaintiffs' First Amended Complaint re 51 Answer to Complaint, Motion

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 14 of 28

08/02/2010 08/11/2010
08/12/2010 08/13/2010 08/13/2010 08/16/2010 08/19/2010 08/30/2010

Hearing set for 9/2/2010 10:00 AM in Syracuse before Judge Glenn T. Suddaby Response to Motion due by 8/16/2010 filed by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Attachments: # 1 Declaration Atty. Declaration of Michael J. Livolsi, # 2 Exhibit(s) Ex. A to Declaration of M. J. Livolsi, # 3 Exhibit(s) Ex. B to Declaration of M. J. Livolsi, # 4 Exhibit(s) Ex. C to Declaration of M. J. Livolsi, # 5 Exhibit(s) Ex. D to Declaration of M. J. Livolsi, # 6 Exhibit(s) Ex. E to Declaration of M. J. Livolsi, # 7 Exhibit(s) Ex. F to Declaration of M. J. Livolsi, # 8 Exhibit(s) Ex. G to Declaration of M. J. Livolsi, # 9 Exhibit(s) Ex. H to Declaration of M. J. Livolsi, # 10 Supplement Certificate of Service) Motions referred to George H. Lowe. (Livolsi, Michael) (Entered: 07/28/2010)
TEXT NOTICE: The 64 Motion to Amend the Answer will be heard by Magistrate Judge George H. Lowe on submission of the papers only. Judge Lowe will notify counsel if oral argument is necessary. (rjb, ) (Entered: 08/02/2010)
65 REQUEST − STIPULATION −− Motion re 64 First MOTION Requesting an Order permitting Defendants to amend their Answer to Plaintiffs' First Amended Complaint re 51 Answer to Complaint,First MOTION Requesting an Order permitting Defendants to amend their Answer to Plaintiffs' First Amended Complaint re 51 Answer to Complaint,First MOTION Requesting an Order permitting Defendants to amend their Answer to Plaintiffs' First Amended Complaint re 51 Answer to Complaint,First MOTION Requesting an Order permitting Defendants to amend their Answer to Plaintiffs' First Amended Complaint re 51 Answer to Complaint,First MOTION Requesting an Order permitting Defendants to amend their Answer to Plaintiffs' First Amended Complaint re 51 Answer to Complaint, filed by A.E.P., Charles Patrick Pratt. (Attachments: # 1 Certificate of Service)(Ude, Thomas) Modified on 8/12/2010 to indicate Stipulation (mnm). (Entered: 08/11/2010)
66 NOTICE by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner , of Removal of Counsel. (Miller, Frank) (Entered: 08/12/2010)
67 ORDER granting 65 Letter Request, the amended answer is to be filed no later than August 20, 2010. Signed by Magistrate Judge George H. Lowe on 8/13/10. (rjb, ) (Entered: 08/13/2010)
68 MOTION for leave to participate as Amicus Curiae filed by William H. Pease on behalf of United States of America. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s))(Pease, William) Modified on 8/16/2010 to reflect this as a pending motion. (lmw). (Entered: 08/13/2010)
TEXT NOTICE of Hearing on # 68 MOTION for Leave to participate as Amicus Curiae : Motion Hearing set for 9/16/2010 on submit before Judge Glenn T. Suddaby. No personal appearance. Response to Motion due by 8/30/2010. Reply to Response to Motion due by 9/7/2010. The # 30 motion to dismiss/SJ and the # 56 motion to dismiss are hereby stayed pending a decision on this motion.(lmw) (Entered: 08/16/2010)
69 Defendants' First Amended ANSWER to Complaint , i.e., Plaintiffs' First Amended Complaint, filed by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Attachments: # 1 Supplement Certificate of Service)(Miller, Frank) (Entered: 08/19/2010)
70 LETTER BRIEF /Letter Response, with Exs. A &B, to Magistrate Judge George H. Lowe, in response to 68 Motion for Leave to Participate as Amicus Curiae. Letter Brief/Letter Response filed by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Attachments: # 1 Supplement Certificate of Service)(Miller, Frank) Modified on 8/31/2010 (amt). (Entered: 08/30/2010)

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 15 of 28

09/07/2010 12/06/2010
12/17/2010 12/20/2010 12/20/2010 01/03/2011 03/29/2011 03/30/2011
04/20/2011 04/27/2011
05/06/2011
05/09/2011

71 RESPONSE in Support re 68 MOTION for Leave to File −−U.S. REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE−− filed by United States of America. (Attachments: # 1 Supplement, # 2 Supplement, # 3 Supplement, # 4 Supplement, # 5 Supplement)(Pease, William) (Entered: 09/07/2010)
72 MEMORANDUM, DECISION and ORDER − the United States motion to participate as amicus curiae 68 Motion for Leave to File is granted, and the government is directed to electronically file its brief which is currently attached at Exhibit B to its moving papers at 68 . Defendants may file a response in opposition to any arguments raised by the United States in its amicus brief, not to exceed five (5) pages in length, within fourteen (14) days of the date of this Decision and Order. Signed by Judge Glenn T. Suddaby on 12/6/10. (mnm) (Entered: 12/07/2010)
73 NOTICE by A.E.P., Charles Patrick Pratt of Withdrawal of M. Kavey as Counsel (Ude, Thomas) (Entered: 12/17/2010)
74 NOTICE of Appearance by Bryan N. Georgiady on behalf of Indian River Central School District (Georgiady, Bryan) (Entered: 12/20/2010)
75 MEMORANDUM OF LAW re 68 Motion for Leave to File, District's Response to the United States' Memorandum as Amicus Curiae filed by Indian River Central School District. (Attachments: # 1 Supplement Certificate of Service)(Georgiady, Bryan) (Entered: 12/20/2010)
76 Amicus Curiae APPEARANCE entered by William H. Pease on behalf of United States of America. (Attachments: # 1 Exhibit(s))(Pease, William) (Entered: 01/03/2011)
77 MEMORANDUM−DECISION AND ORDER granting in part and denying in part Defendants' 30 Motion for Summary Judgment and 56 Motion to Dismiss. Signed by Judge Glenn T. Suddaby on 3/28/2011. (amt) (Entered: 03/29/2011)
TEXT NOTICE of Hearing: Initial Conference set for 4/27/2011 at 11:00 AM before Magistrate Judge George H. Lowe; Civil Case Management Plan due by 4/20/2011. Plaintiff's attorney is responsible for initiating the call, USING A THIRD−PARTY TELECONFERENCING SERVICE, which is necessary to assure audibility. FAILURE TO USE A THIRD−PARTY TELECONFERENCING SERVICE WILL RESULT IN CANCELLATION OF THE CONFERENCE CALL AND THE SCHEDULING OF AN IN−PERSON CONFERENCE. When all required parties are present, the service should call the Court at (315) 234−8618, which is a dedicated conference line which may be called ONLY at the time of the conference. (rjb, ) (Entered: 03/30/2011)
78 CIVIL CASE MANAGEMENT PLAN (Joint) by A.E.P., Charles Patrick Pratt. (Humann, Adam) (Entered: 04/20/2011)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Initial Pretrial Conference held on 4/27/2011. Adam T. Humann, Esq and Alex Colod, Esq., for plaintiffs; Thomas W. Ude, Jr., Esq. for plaintiffs; Frank W. Miller, Esq. for defendants. Pretrial deadlines are established. A scheduling Order will be issued. Judge Lowe urges counsel to review draft protective order prior to discovery. (FTR Recorded) (ptm) (Entered: 04/28/2011)
79 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of trial: 8 Days. Preferred Trial Location: Syracuse. Joinder of Parties due by 6/1/2011. Amended Pleadings due by 6/1/2011. Discovery due by 2/27/2012. Motions to be filed by 4/27/2012. Trial Ready Deadline is 4/27/2012. Deadline for completion of mediation is 3/12/2012. A Status Telephone Conference is set for June 29, 2011 at 10:00AM beore Magistrate Judge George H. Lowe. Defendants' attorney is directed to initiate the call in accordance with the order. Signed by Magistrate Judge George H. Lowe on 5/6/2011. (ptm, ) (Entered: 05/06/2011)
80 NOTICE of Appearance by William F. Larkin on behalf of United States of America (Attachments: # 1 Certificate of Service)(Larkin, William) (Entered: 05/09/2011)

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 16 of 28

05/10/2011
05/11/2011 05/16/2011 06/29/2011
08/05/2011 08/31/2011 09/01/2011 09/13/2011
09/26/2011
10/31/2011 11/01/2011 11/01/2011

81 MOTION for Limited Admission Pro Hac Vice of Alexandra P. Kolod (Fee is waived) filed by A.E.P., Charles Patrick Pratt. (Attachments: # 1 Verified Petition, # 2 Affidavit of Sponsor, # 3 Certificate of Good Standing, # 4 Registration Form, # 5 Proposed Order, # 6 Certificate of Service, # 7 Receipt for Motion Fee Payment) Motions referred to George H. Lowe. (Gorenberg, Hayley) (Entered: 05/10/2011)
82 ORDER on Substitution of Attorney: re 80 Notice of Appearance filed by William F. Larkin, AUSA for United States of America. Signed by Magistrate Judge George H. Lowe on 5/11/2011. (ptm, ) (Entered: 05/11/2011)
83 ORDER granting 81 Motion for Limited Admission Pro Hac Vice of Alexandra Kolod, Esq. Signed by Magistrate Judge George H. Lowe on 5/16/2011. (amt) (Entered: 05/16/2011)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Telephone Status Conference held on 6/29/2011. Adam T. Humann, Esq and Alexandra P. Kolod, Esq., for plaintiffs; Thomas W. Ude, Jr., Esq. for plaintiffs; Frank W. Miller, Esq. for defendants. The Court discussed with counsel the status of discovery. On or before 8/5/2011 Plaintiff's counsel will advise the Court in writing as to the status of paper discovery and the agreed upon dates for depositions. (FTR Recorded) (ptm, ) (Entered: 06/30/2011)
84 NOTICE by A.E.P., Charles Patrick Pratt A. Humann letter to Judge Lowe re Discovery (Kolod, Alexandra) (Entered: 08/05/2011)
85 Letter Request / Motion requesting a conference to Judge Lowe re Discovery (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Exhibit(s) Exhibit B, # 3 Exhibit(s) Exhibit C)(Humann, Adam) Modified on 9/1/2011 (amt). (Entered: 08/31/2011)
CLERK'S CORRECTION OF DOCKET ENTRY: The text of document 85 was modified to correctly reflect it is a Letter Request/Motion for a conference re: discovery. (amt) (Entered: 09/01/2011)
TEXT NOTICE of Hearing: Telephone Conference set for 9/26/2011 at 03:30 PM before Magistrate Judge George H. Lowe. Plaintiffs' attorney is responsible for initiating the call, USING A THIRD−PARTY TELECONFERENCING SERVICE, which is necessary to assure audibility. FAILURE TO USE A THIRD−PARTY TELECONFERENCING SERVICE WILL RESULT IN CANCELLATION OF THE CONFERENCE CALL AND THE SCHEDULING OF AN IN PERSON CONFERENCE. When all required parties are present, the service should call the Court at (315) 234−8618, which is a dedicated conference line which may be called ONLY at the time of the conference.(rjb, ) (Entered: 09/13/2011)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Status Conference held on 9/26/2011. Appearances: Adam Humann, Esq., Alexandra Kolod, Esq., Hayley Gorenberg, Esq. and Thomas Ude, Esq. for Plaintiffs; Frank Miller, Esq. for Defendants. Judge Lowe reviews Dkt. No. 85 with counsel. Mr. Miller has forwarded additional records to Plaintiffs and is in the process of reviewing Plaintiffs' responses. Mr. Miller confirms a litigation hold is in place and that Defendant Henderson will be relocating out of state. Counsel will attempt to conduct Defendant Henderson's deposition before she moves. Counsel are directed to confer on outstanding discovery issues. Plaintiffs' attorneys will file a status report with the Court by 10/31/2011. (FTR Recorded) (rjb, ) (Entered: 09/27/2011)
86 NOTICE by A.E.P., Charles Patrick Pratt A. Humann Letter to Judge Lowe re Discovery Status (Humann, Adam) (Entered: 10/31/2011)
87 STIPULATION Protective Order regarding medical records by A.E.P., Charles Patrick Pratt submitted to Judge George H. Lowe. (Humann, Adam) (Entered: 11/01/2011)
88 STIPULATION Protective Order regarding minors and students by A.E.P., Charles Patrick Pratt submitted to Judge George H. Lowe. (Humann, Adam) (Entered: 11/01/2011)

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 17 of 28

11/08/2011 11/08/2011 11/13/2011 11/18/2011 11/30/2011
12/01/2011 12/01/2011
12/08/2011
12/09/2011 12/14/2011
12/14/2011 12/15/2011

89 STIPULATED PROTECTIVE ORDER regarding medical records. Signed by Magistrate Judge George H. Lowe on 11/8/11. (rjb, ) (Entered: 11/08/2011)
90 STIPULATED PROTECTIVE ORDER regarding minors. Signed by Magistrate Judge George H. Lowe on 11/8/11. (rjb, ) (Entered: 11/08/2011)
91 NOTICE of Appearance by Charles C. Spagnoli on behalf of All Defendants (Spagnoli, Charles) (Entered: 11/13/2011)
92 Letter Motion from A. Humann to Judge Lowe re Discovery Status for A.E.P., Charles Patrick Pratt requesting An extension of discovery deadlines submitted to Judge Lowe. (Humann, Adam) (Entered: 11/18/2011)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Status Conference held on 11/30/2011. Appearances: Adam Humann, Esq., Alexandra Kolod, Esq. and Thomas Ude, Esq. for Plaintiffs; Charles Spagnoli, Esq. for Defendants. Judge Lowe reviews Dkt. No. 92 with counsel and grants the request to extend the deadlines. Plaintiffs just received revised responses and supplemental documents but have not had a chance to review them. A conference is scheduled for 12/15/11 at 10:00 AM to discuss the status of paper discovery, depositions and expert disclosures. Plaintiffs anticipate at least 10 depositions and Defendants anticipate at least 7 or 8. (FTR Recorded) (rjb, ) (Entered: 12/01/2011)
TEXT ORDER granting 92 Letter Request. Discovery due by 4/12/2012; Discovery Motions due by 5/11/2012; Deadline for completion of mediation is 5/11/2012; Dispositive Motions to be filed by 6/26/2012. SO ORDERED by Magistrate Judge George H. Lowe on 12/1/11. (rjb, ) (Entered: 12/01/2011)
TEXT NOTICE of Hearing: Status Conference set for 12/15/2011 at 10:00 AM before Magistrate Judge George H. Lowe. Defendants' attorney is responsible for initiating the call, USING A THIRD−PARTY TELECONFERENCING SERVICE, which is necessary to assure audibility. FAILURE TO USE A THIRD−PARTY TELECONFERENCING SERVICE WILL RESULT IN CANCELLATION OF THE CONFERENCE CALL AND THE SCHEDULING OF AN IN PERSON CONFERENCE. When all required parties are present, the service should call the Court at (315) 234−8618, which is a dedicated conference line which may be called ONLY at the time of the conference.(rjb, ) (Entered: 12/01/2011)
93 MOTION for Limited Admission Pro Hac Vice of Robert A. Gretch Filing fee $100, receipt number 0206−2041319. filed by A.E.P., Charles Patrick Pratt. (Attachments: # 1 Exhibit(s) Petition for Admission to Practice, # 2 Affidavit Affidavit of Sponsor, # 3 Exhibit(s) Certificate of Good Standing, # 4 Exhibit(s) New Attorney E−Filing Registration Form, # 5 Proposed Order/Judgment Proposed Order, # 6 Certificate of Service) Motions referred to George H. Lowe. (Ude, Thomas) (Entered: 12/08/2011)
94 ORDER granting 93 Motion for Limited Admission Pro Hac Vice as to Robert Gretch. Signed by Magistrate Judge George H. Lowe on 12/9/11. (rjb, ) (Entered: 12/09/2011)
95 Letter Motion from Charles C. Spagnoli, Esq. for Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner requesting Assistance of court in discovery issues submitted to Judge George H. Lowe. (Attachments: # 1 Exhibit(s) "Matthew e−mail")(Spagnoli, Charles) (Entered: 12/14/2011)
96 Letter Motion from Plaintiffs' Counsel for A.E.P., Charles Patrick Pratt requesting Assistance of Court with respect to discovery issues. submitted to Judge George H. Lowe. (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Exhibit(s) Exhibit B)(Humann, Adam) (Entered: 12/14/2011)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Status Conference held on 12/15/2011. Appearances: Adam Humann, Esq., Alexandra Kolod, Esq., Robert Gretch, Esq. and Thomas Ude, Esq. for Plaintiffs; Charles Spagnoli, Esq. for Defendants. The medical records issue has been resolved. Counsel will confer on the interrogatory responses issue. Plaintiff will

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12/20/2011 12/27/2011 01/03/2012 01/09/2012 01/09/2012
01/17/2012
01/30/2012
01/31/2012

file a supplemental letter brief, Defendants will have until 12/30/11 to file a response. Counsel inform the Court that the discovery deadline proposed in Dkt. No. 92 should have been 4/27/12, not 4/12/12. (FTR Recorded) (rjb, ) (Entered: 12/19/2011)
97 Letter Motion from Plaintiffs in follow−up to 12/15/2011 status conference for A.E.P., Charles Patrick Pratt requesting production of Defendants' litigation hold and related information submitted to Judge George H. Lowe. (Humann, Adam) (Entered: 12/20/2011)
98 LETTER BRIEF by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Attachments: # 1 Exhibit(s) "Matthew e−mail", # 2 Exhibit(s) Plaintiffs' Rule 26 disclosures)(Spagnoli, Charles) (Entered: 12/27/2011)
TEXT ORDER: The Court has reviewed Dkt. Nos. 95−98. During a conference call on 12/15/11 it was agreed that the only issue addressed in these documents that had to be resolved by the Court is that which has been described as the "Matthew e−mail". The Court finds that Plaintiffs have not made a sufficient showing of spoliation of evidence, and therefore Plaintiffs' request (Dkt. No. 97, at 1, first paragraph) is denied. SO ORDERED by Magistrate Judge George H. Lowe on 1/3/12. (rjb, ) (Entered: 01/03/2012)
TEXT ORDER: As discussed during the conference call on 12/15/2011 the discovery deadline is extended to 4/27/2012. SO ORDERED by Magistrate Judge George H. Lowe on 1/9/12. (rjb, ) (Entered: 01/09/2012)
TEXT NOTICE of Hearing: Status Conference set for 1/17/2012 at 02:00 PM before Magistrate Judge George H. Lowe. Plaintiffs' attorney is responsible for initiating the call, USING A THIRD−PARTY TELECONFERENCING SERVICE, which is necessary to assure audibility. FAILURE TO USE A THIRD−PARTY TELECONFERENCING SERVICE WILL RESULT IN CANCELLATION OF THE CONFERENCE CALL AND THE SCHEDULING OF AN IN PERSON CONFERENCE. When all required parties are present, the service should call the Court at (315) 234−8618, which is a dedicated conference line which may be called ONLY at the time of the conference.(rjb, ) (Entered: 01/09/2012)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Status Conference held on 1/17/2012. Appearances: Alexandra Kolod, Esq., Robert Gretch, Esq. and Thomas Ude, Esq. for Plaintiffs; Charles Spagnoli, Esq. for Defendants. Plaintiffs served supplemental responses on 1/3/12. Defendants will serve their supplemental responses by the end of the day. Judge Lowe hears from counsel on their outstanding discovery issues. Counsel will confer on scheduling Plaintiff's deposition and will further confer on the issue of how much time is to be set aside for the deposition. The expert disclosure deadline for each side is extended by a week. Counsel are directed to confer on the interrogatory issue and see if it can be narrowed. Attorney Ude will contact Judge Lowe's Courtroom Deputy by 1/25/2012, if the issue has not been resolved a conference call will be scheduled. Defendants' attorney will submit a deposition schedule to the Court by 2/1/12. (FTR Recorded) (rjb, ) (Entered: 01/19/2012)
TEXT NOTICE of Hearing: Telephone Conference set for 1/31/2012 at 10:30 AM before Magistrate Judge George H. Lowe. Plaintiffs' attorney is responsible for initiating the call, USING A THIRD−PARTY TELECONFERENCING SERVICE, which is necessary to assure audibility. FAILURE TO USE A THIRD−PARTY TELECONFERENCING SERVICE WILL RESULT IN CANCELLATION OF THE CONFERENCE CALL AND THE SCHEDULING OF AN IN PERSON CONFERENCE. When all required parties are present, the service should call the Court at (315) 234−8618, which is a dedicated conference line which may be called ONLY at the time of the conference.(rjb, ) (Entered: 01/30/2012)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Telephone Conference held on 1/31/2012. Appearances: Adam Humann, Esq., Alexandra Kolod, Esq., Robert Gretch, Esq. and Thomas Ude, Esq. for

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 19 of 28

02/01/2012 02/06/2012 02/13/2012 02/22/2012
02/27/2012 02/28/2012
03/06/2012

Plaintiffs; Charles Spagnoli, Esq. for Defendants. Judge Lowe hears from counsel on outstanding discovery issues. With respect to Interrogatory No. 13, Judge Lowe rules that Defendants are to respond to Plaintiffs' proposal by 2/21/12. With regards to the issue of time allotted for Plaintiff Pratt's deposition, Judge Lowe rules that Defendants be given an additional 3 1/2 hours to depose Plaintiff Pratt. If Plaintiffs believe that Attorney Spagnoli is abusing the time given, they may make a request to the Court. Attorney Spagnoli raises an issue regarding redacted medical records that he received. Judge Lowe directs counsel to confer on this issue and get it before the Court if it cannot be resolved. (FTR Recorded) (rjb, ) (Entered: 01/31/2012)
99 LETTER BRIEF regarding tentative deposition schedule by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Spagnoli, Charles) (Entered: 02/01/2012)
TEXT ORDER: The Court has reviewed Dkt. No. 99. On or before 4/20/12 Plaintiffs are to advise the Court in writing as to the status of depositions. SO ORDERED by Magistrate Judge George H. Lowe on 2/6/12. (rjb, ) (Entered: 02/06/2012)
100 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Therese Wiley Dancks for all further proceedings. Magistrate Judge George H. Lowe no longer assigned to case. Signed by Chief Judge Gary L. Sharpe on 2/10/2012. (amt) (Entered: 02/13/2012)
TEXT NOTICE of Hearing: At the request of counsel, a Status Conference is set for 3/1/2012 at 10:00 AM before Magistrate Judge Therese Wiley Dancks. Plaintiffs' attorney is responsible for initiating the call, USING A THIRD−PARTY TELECONFERENCING SERVICE, which is necessary to assure audibility. FAILURE TO USE A THIRD−PARTY TELECONFERENCING SERVICE WILL RESULT IN CANCELLATION OF THE CONFERENCE CALL AND THE SCHEDULING OF AN IN PERSON CONFERENCE. When all required parties are present, the service should call the Court at (315) 234−8618, which is a dedicated conference line which may be called ONLY at the time of the conference.(rjb, ) (Entered: 02/22/2012)
101 Letter Motion from Defendants (with all parties' consent) for Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner requesting Extension of deadlines submitted to Judge Hon. Therese Wiley Dancks . (Spagnoli, Charles) (Entered: 02/27/2012)
TEXT ORDER: The Court has reviewed Dkt. No. 101. Pretrial deadlines are extended as follows: Defendants' expert disclosure due by 5/20/2012; Rebuttal expert reports due by 5/28/2012; Discovery due by 6/27/2012; Discovery motions and Deadline for completion of mediation is 7/11/2012; Dispositive Motions to be filed by 8/26/2012. Counsel is to submit a deposition schedule to the Court no later than 4/20/2012. The Status Conference scheduled for 3/1/2012 is adjourned until 5/1/2012 at 09:30 AM before Magistrate Judge Therese Wiley Dancks. Plaintiffs' attorney is responsible for initiating the call, USING A THIRD−PARTY TELECONFERENCING SERVICE, which is necessary to assure audibility. FAILURE TO USE A THIRD−PARTY TELECONFERENCING SERVICE WILL RESULT IN CANCELLATION OF THE CONFERENCE CALL AND THE SCHEDULING OF AN IN PERSON CONFERENCE. When all required parties are present, the service should call the Court at (315) 234−8618, which is a dedicated conference line which may be called ONLY at the time of the conference. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 2/28/12. (rjb, ) (Entered: 02/28/2012)
102 MOTION for Limited Admission Pro Hac Vice of Lisa V. LeCointe−Cephas Filing fee $100, receipt number 0206−2124247. filed by Charles Patrick Pratt. (Attachments: # 1 Exhibit(s) Petition for Admission Pro Hac Vice, # 2 Affidavit of Sponsor, # 3 Exhibit(s) Certificate of Good Standing, # 4 Exhibit(s) E−Filing Registration, # 5 Proposed Order/Judgment, # 6 Certificate of Service) Motions referred to Therese Wiley Dancks. (Ude, Thomas) (Entered: 03/06/2012)

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 20 of 28

03/07/2012 04/09/2012
04/10/2012
04/10/2012 04/12/2012 04/20/2012 04/24/2012
04/30/2012

103 ORDER granting 102 Motion for Limited Admission Pro Hac Vice as to Lisa V. Lecointe−Cephas. Signed by Magistrate Judge Therese Wiley Dancks on 3/7/12. (rjb, ) (Entered: 03/07/2012)
TEXT NOTICE of Hearing: At the request of Defendants' counsel, a Telephone Conference is set for 4/10/2012 at 10:30 AM before Magistrate Judge Therese Wiley Dancks. Defendants' attorney is responsible for initiating the call, USING A THIRD−PARTY TELECONFERENCING SERVICE, which is necessary to assure audibility. FAILURE TO USE A THIRD−PARTY TELECONFERENCING SERVICE WILL RESULT IN CANCELLATION OF THE CONFERENCE CALL AND THE SCHEDULING OF AN IN PERSON CONFERENCE. When all required parties are present, the service should call the Court at (315) 234−8618, which is a dedicated conference line which may be called ONLY at the time of the conference.(rjb, ) (Entered: 04/09/2012)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Telephone Conference held on 4/10/2012. Appearances: Adam Humann, Esq., Robert Gretch, Esq. and Thomas Ude, Esq. for Plaintiffs; Charles Spagnoli, Esq. for Defendants. Mr. Spagnoli would like to file a motion pursuant to Rules 35 and 37. Seven depositions have been completed, counsel would like to take approximately thirty more depositions. Judge Dancks directs counsel to try to narrow the number of depositions before requesting permission to take more depositions than allowed by the Rules. Mr. Spagnoli would like the Court to narrow the scope of discovery and make a ruling as to what evidence is admissible at trial. Judge Dancks gives Mr. Spagnoli permission to file two separate motions. Both motions are due by 4/24/2012 and the motion requesting the Court narrow the scope of discovery and make a ruling as to what evidence will be admissible at trial will be submitted to Judge Suddaby. Judge Dancks extends pretrial deadlines by 60 days. Mr. Spagnoli advises the Court that he intends to make a motion in Family Court to request permission to question Plaintiff Pratt's probation officer. (FTR Recorded) (rjb, ) (Entered: 04/10/2012)
TEXT ORDER: Defendants' Expert Disclosure due by 7/20/2012; Rebuttal reports due by 8/3/2012; Discovery due by 8/27/2012; Discovery Motions due by 9/11/2012; Dispositive Motions to be filed by 10/26/2012; Deadline for completion of mediation is 9/11/2012. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 4/10/12. (rjb, ) (Entered: 04/10/2012)
104 MOTION for Discovery Rule 35 Examination of Plaintiff Motion Hearing set for 5/17/2012 10:00 AM in Syracuse before Magistrate Judge Therese Wiley Dancks Response to Motion due by 4/30/2012 filed by Indian River Central School District. (Attachments: # 1 Declaration Declaration of Charles C. Spagnoli Supporting Motion, # 2 Exhibit(s) A, # 3 Exhibit(s) B, # 4 Exhibit(s) C, # 5 Exhibit(s) D, # 6 Exhibit(s) E, # 7 Exhibit(s) F, # 8 Exhibit(s) G, # 9 Exhibit(s) H, # 10 Memorandum of Law, # 11 Affidavit Certificate of service) Motions referred to Therese Wiley Dancks. (Spagnoli, Charles) (Entered: 04/12/2012)
105 STATUS REPORT to Judge Dancks re Depositions by A.E.P., Charles Patrick Pratt. (Ude, Thomas) (Entered: 04/20/2012)
106 MOTION in Limine , MOTION for Protective Order regarding Non−Pratt Environment Evidence ( Motion Hearing set for 6/21/2012 10:00 AM in Syracuse before Judge Glenn T. Suddaby, Response to Motion due by 6/4/2012 ) filed by Indian River Central School District. (Attachments: # 1 Affidavit of James Kettrick, # 2 Affidavit of Charles C. Spagnoli, # 3 Exhibit(s) A, # 4 Exhibit(s) B, # 5 Exhibit(s) C, # 6 Exhibit(s) D, # 7 Exhibit(s) E, # 8 Exhibit(s) F, # 9 Exhibit(s) G, # 10 Memorandum of Law Supporting Motion in Limine and for Protective Order, # 11 Appendix Unpublished decision (Alexander), # 12 Appendix Unpublished decision (Bliss), # 13 Appendix Unpublished decision (DT v. Somers), # 14 Appendix Unpublished decision (Patenaude), # 15 Appendix Unpublished decision (Swift), # 16 Declaration Certificate of service) Motions referred to Therese Wiley Dancks. (Spagnoli, Charles) (Entered: 04/24/2012)
107 STIPULATION re 104 MOTION for Discovery Rule 35 Examination of Plaintiff by A.E.P., Charles Patrick Pratt submitted to Judge Dancks. (Gretch, Robert) (Entered: 04/30/2012)

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 21 of 28

05/01/2012
05/01/2012
05/01/2012 05/02/2012 05/03/2012 05/04/2012 05/17/2012
05/22/2012 05/23/2012

TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Status Conference held on 5/1/2012. Appearances: Adam Humann, Esq., Alexandra Kolod, Esq., Robert Gretch, Esq. and Thomas Ude, Esq. for Plaintiffs; Charles Spagnoli, Esq. for Defendants. Judge Dancks approves the 107 Stipulation, counsel are attempting to resolve the issue raised in the 104 Motion themselves and will notify the Court if they reach a resolution. Counsel report on the status of discovery. Seven depositions have been taken, several more remain. Judge Dancks grants permission for each side to take 15 depositions. Counsel agree to follow the 105 deposition schedule that was submitted to the Court and agree to stick to the current discovery schedule. A follow up conference will be scheduled for early July. (FTR Recorded) (rjb, ) (Entered: 05/01/2012)
TEXT NOTICE of Hearing: Status Conference set for 7/2/2012 at 10:00 AM before Magistrate Judge Therese Wiley Dancks. Plaintiffs' attorney is responsible for initiating the call, USING A THIRD−PARTY TELECONFERENCING SERVICE, which is necessary to assure audibility. FAILURE TO USE A THIRD−PARTY TELECONFERENCING SERVICE WILL RESULT IN CANCELLATION OF THE CONFERENCE CALL AND THE SCHEDULING OF AN IN PERSON CONFERENCE. When all required parties are present, the service should call the Court at (315) 234−8618, which is a dedicated conference line which may be called ONLY at the time of the conference.(rjb, ) (Entered: 05/01/2012)
TEXT ORDER denying without prejudice # 106 Defendant District's motion to the extent that it requests an Order precluding the introduction of Non−Pratt Environment Evidence at trial, pursuant to Fed.R.Evid. 401−404, as premature and unripe for a judicial determination. See, e.g., Jones v. Harris, 665 F. Supp.2d 384, 404 (S.D.N.Y. 2009); James v. Gilmore, 2009 WL 435286, at *2 (W.D.N.Y. 2009); Reed v. Edmonds, 2006 WL 435453, at *1 (S.D.N.Y. 2006). The remainder of Defendant District's motion remains pending before Magistrate Judge Dancks. Authorized by Judge Glenn T. Suddaby on 5/1/12. (lmw) (Entered: 05/01/2012)
108 LETTER REQUEST/MOTION by Indian River Central School District to withdraw the 104 MOTION for Discovery Rule 35 Examination of Plaintiff (Spagnoli, Charles) Modified on 5/3/2012 (amt). (Entered: 05/02/2012)
CLERK'S CORRECTION OF DOCKET ENTRY: Document 108 was modified to correctly reflect it is a Letter Request/Motion. (amt) (Entered: 05/03/2012)
TEXT ORDER: The Court has reviewed Dkt. Nos. 104 and 108. By stipulation of the parties as indicated in Dkt. No. 108, the motion for a Rule 35 exam (Dkt. No. 104) is withdrawn without prejudice to refile. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 5/4/12. (rjb, ) (Entered: 05/04/2012)
109 Amended MOTION for Protective Order and Supplemental Motion for Protective Order Motion Hearing set for 6/21/2012 10:00 AM in Syracuse before Magistrate Judge Therese Wiley Dancks Response to Motion due by 6/4/2012 filed by Indian River Central School District. (Attachments: # 1 Affidavit Supplemental Affidavit of Charles C. Spagnoli, # 2 Exhibit(s) H, # 3 Exhibit(s) I, # 4 Exhibit(s) J, # 5 Exhibit(s) K, # 6 Exhibit(s) L, # 7 Exhibit(s) M, # 8 Exhibit(s) N, # 9 Exhibit(s) O, # 10 Memorandum of Law Supplemental Memorandum of Law Supporting Motion, # 11 Affidavit Certificate of Service) Motions referred to Therese Wiley Dancks. (Spagnoli, Charles) (Entered: 05/17/2012)
110 Letter Motion from Thomas Ude, Jr. and Alexandra Kolod for A.E.P., Charles Patrick Pratt requesting that the Court reject the Supplemental Motion, order Defendants to confer with Plaintiffs regarding the Notice, and hold a conference regarding the document retention dispute. submitted to Judge Dancks . (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C)(Kolod, Alexandra) (Entered: 05/22/2012)
111 RESPONSE to Motion re 110 Letter Motion from Thomas Ude, Jr. and Alexandra Kolod for A.E.P., Charles Patrick Pratt requesting that the Court reject the Supplemental Motion, order Defendants to confer with Plaintiffs regarding the Notice, and hold a conference regardi filed by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 22 of 28

05/23/2012 06/04/2012
06/15/2012
06/18/2012 06/19/2012 06/21/2012 06/21/2012 06/25/2012 06/29/2012
06/29/2012 07/02/2012

Moore, Amable Turner. (Spagnoli, Charles) (Entered: 05/23/2012)
112 Amended MOTION for Protective Order (Second Amended Notice of Motion) Motion Hearing set for 6/21/2012 10:00 AM in Syracuse before Magistrate Judge Therese Wiley Dancks Response to Motion due by 6/4/2012 filed by Indian River Central School District. (Attachments: # 1 Affidavit Certificate of service) Motions referred to Therese Wiley Dancks. (Spagnoli, Charles) (Entered: 05/23/2012)
113 RESPONSE in Opposition re 109 Amended MOTION for Protective Order and Supplemental Motion for Protective Order, 106 MOTION in Limine MOTION for Protective Order regarding Non−Pratt Environment Evidence, 112 Amended MOTION for Protective Order (Second Amended Notice of Motion) filed by A.E.P., Charles Patrick Pratt. (Attachments: # 1 Declaration in Support of Plaintiffs' Opposition, # 2 Exhibit(s) A, # 3 Exhibit(s) B, # 4 Exhibit(s) C, # 5 Exhibit(s) D, # 6 Exhibit(s) E, # 7 COS)(Kolod, Alexandra) (Entered: 06/04/2012)
114 ***STRICKEN FROM THE RECORD BY TEXT ORDER ISSUED 6/25/2012*** REPLY to Response to Motion re 112 Amended MOTION for Protective Order (Second Amended Notice of Motion), 109 Amended MOTION for Protective Order and Supplemental Motion for Protective Order, 106 MOTION in Limine MOTION for Protective Order regarding Non−Pratt Environment Evidence filed by Indian River Central School District. (Attachments: # 1 Appendix Abdullah case, # 2 Appendix Sauerhaft case)(Spagnoli, Charles) Modified on 6/25/2012 (rjb, ). (Entered: 06/15/2012)
115 AFFIDAVIT re 114 Reply to Response to Motion, Certificate of service by Indian River Central School District. (Spagnoli, Charles) (Entered: 06/18/2012)
116 NOTICE by A.E.P., Charles Patrick Pratt Withdrawal of Counsel−Vickie Reznik (Humann, Adam) (Entered: 06/19/2012)
117 Letter Motion from Thomas Ude, Jr. and Adam Humann for A.E.P., Charles Patrick Pratt requesting that the Court not consider Defendants' Reply Memorandum of Law Supporting Motion in Limine and for Protective Order (Dkt No. 114) submitted to Judge Therese Wiley Dancks . (Attachments: # 1 Exhibit(s) A)(Humann, Adam) (Entered: 06/21/2012)
118 Letter Motion from Indian River Central School District for Indian River Central School District requesting Ruling on prior request for leave to file reply brief submitted to Judge Dancks . (Spagnoli, Charles) (Entered: 06/21/2012)
TEXT ORDER: The Court has reviewed Dkt. Nos. 117 and 118. Defendants' 114 Reply is hereby stricken from the record. Defendants may file a reply, not exceeding 10 pages in length, on or before June 29, 2012. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 6/25/12. (rjb, ) (Entered: 06/25/2012)
119 REPLY to Response to Motion re 112 Amended MOTION for Protective Order (Second Amended Notice of Motion), 109 Amended MOTION for Protective Order and Supplemental Motion for Protective Order, 106 MOTION in Limine MOTION for Protective Order regarding Non−Pratt Environment Evidence filed per the Court's order of 6/25/12 filed by Indian River Central School District. (Spagnoli, Charles) (Entered: 06/29/2012)
120 AFFIDAVIT of service re: 119 Reply Memorandum filed by Indian River Central School District. (Spagnoli, Charles) Modified on 6/29/2012 (amt). (Entered: 06/29/2012)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Status Conference held on 7/2/2012. Appearances: Adam Humann, Esq., Robert Gretch, Esq. and Thomas Ude, Esq. for Plaintiffs; Charles Spagnoli, Esq. for Defendants. Parties have been moving forward with depositions. Seven more depositions are scheduled but some have to be rescheduled. Counsel anticipate only a couple of the needed depositions being effected by the pending motion. There are approximately 16 more depositions to be done. Judge Dancks extends all pretrial deadlines by 30 days. A text order will be issued. Mr. Spagnoli has petitioned Family Court and is waiting for a final order. Mr. Spagnoli anticipates issuing a subpoena for Pltf. Pratt's probation officer. A follow up conference will be

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 23 of 28

07/03/2012
07/20/2012 07/25/2012
07/27/2012 08/22/2012 08/23/2012 09/17/2012
10/05/2012 10/09/2012 11/05/2012 11/06/2012 11/19/2012

scheduled. (FTR Recorded) (rjb, ) (Entered: 07/03/2012)
TEXT ORDER: Defendants' Expert Disclosure due by 8/20/2012; Rebuttal reports due by 9/3/2012; Discovery due by 9/27/2012; Discovery Motions due by 10/11/2012; Dispositive Motions to be filed by 11/26/2012. A Status Conference is set for 9/17/2012 at 09:30 AM before Magistrate Judge Therese Wiley Dancks; Defendants' attorney is directed to initiate the call and should contact chambers at (315) 234−8618 once all counsel are on the line. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 7/3/12. (rjb, ) (Entered: 07/03/2012)
121 AFFIDAVIT of Service of Written Objections to Plaintiff's Subpoena by Jefferson County Probation Department. (Paulsen, David) (Entered: 07/20/2012)
122 Letter Motion from Charles C. Spagnoli for Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner requesting Issuance of judicial subpoenae submitted to Judge Therese Wiley Dancks . (Attachments: # 1 Appendix Subpoena to Jefferson County Probation Department, # 2 Appendix Subpoena to Rebecca A. Davis)(Spagnoli, Charles) (Entered: 07/25/2012)
TEXT ORDER granting 122 Letter Request. The signed subpoenas will be mailed to Attorney Spagnoli. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 7/27/12. (rjb, ) (Entered: 07/27/2012)
123 Letter Motion from T. Ude and A. Humann re discovery schedule for A.E.P., Charles Patrick Pratt requesting extension of discovery schedule submitted to Judge Therese Wiley Dancks . (Humann, Adam) (Entered: 08/22/2012)
TEXT ORDER granting the parties' joint letter motion for extension of deadlines. (Dkt. No. 123.) Discovery due by 10/31/2012. Discovery motions to be filed by 11/13/2012. Dispositive motions to be filed by 1/10/2013. Authorized by Magistrate Judge Therese Wiley Dancks on 8/23/2012. (ckm) (Entered: 08/23/2012)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Status Conference held on 9/17/2012. Appearances: Alexandra Kolod, Esq. and Thomas Ude, Esq. for Plaintiffs; Charles Spagnoli, Esq. for Defendants. Counsel report on the status of discovery. 21 depositions have been taken. Counsel anticipate up to 9 more depositions. 5 or 6 of these depositions depend on the outcome of the pending motion. Counsel are working on paper discovery. A protective order, which Mr. Ude will draft, will be submitted to the Court by 10/5/2012. Judge Dancks adjourns pending deadlines without date. A conference will be scheduled after a decision on the motion has been issued to reset deadlines. Counsel will select a mediator by the next conference. (FTR Recorded) (rjb, ) Modified on 9/17/2012 (rjb, ). (Entered: 09/17/2012)
124 STIPULATION for Protective Order re Confidential Court Information by A.E.P., Charles Patrick Pratt submitted to Judge Dancks. (Ude, Thomas) (Entered: 10/05/2012)
STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Therese Wiley Dancks on 10/9/12. (rjb, ) (Entered: 10/09/2012)
125 ORDER granting in part and denying in part Defendants' 106 Motion for Protective Order; denying Defendants' 109 and 112 Motions for Protective Order; granting Plaintiffs' 110 Letter Request. Signed by Magistrate Judge Therese Wiley Dancks on 11/5/2012. (amt) (Entered: 11/05/2012)
TEXT NOTICE of Hearing: Status Conference set for 12/4/2012 at 09:30 AM before Magistrate Judge Therese Wiley Dancks. Plaintiffs' attorney is directed to initiate the call and should contact chambers at (315) 234−8618 once all counsel are on the line. This number is a conference line and should be used only at the time of the conference.(rjb, ) (Entered: 11/06/2012)
126 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by A.E.P., Charles Patrick Pratt re 125 Order on Motion for Protective Order,, Order on Letter Request,,,,, Motion Hearing set for 12/20/2012 10:00 AM in Syracuse before Judge

Case: 7:09-cv-00411-GTS-TWD As of: 01/30/2014 03:36 PM EST 24 of 28

11/20/2012 11/30/2012
12/04/2012 12/04/2012
12/04/2012 12/07/2012 12/13/2012 12/21/2012 01/04/2013 01/07/2013 01/07/2013

Glenn T. Suddaby Response to Motion due by 12/3/2012 (Attachments: # 1 Memorandum of Law, # 2 Affidavit, # 3 Record on Appeal, # 4 Exhibit(s) 1 to Record on Appeal, # 5 Exhibit(s) 2 to Record on Appeal, # 6 Exhibit(s) 3 to Record on Appeal, # 7 Exhibit(s) 4 to Record on Appeal, # 8 Exhibit(s) 5 to Record on Appeal, # 9 Exhibit(s) 6 to Record on Appeal, # 10 Exhibit(s) 7 to Record on Appeal, # 11 Exhibit(s) 8 to Record on Appeal, # 12 Exhibit(s) 9 to Record on Appeal, # 13 Exhibit(s) 10 to Record on Appeal, # 14 Exhibit(s) 11 to Record on Appeal, # 15 Exhibit(s) 12 to Record on Appeal, # 16 Exhibit(s) 13 to Record on Appeal)(Ude, Thomas) (Entered: 11/19/2012)
TEXT NOTICE of Hearing on # 126 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by A.E.P., Charles Patrick Pratt re 125 Order on Motion for Protective Order : Motion Hearing set for 12/20/2012 on submit before Judge Glenn T. Suddaby. No personal appearance. Response to Motion due by 12/3/2012. (lmw) (Entered: 11/20/2012)
127 Response by Indian River Central School District to 126 Appeal of Magistrate Judge Decision to District Court,,, (Attachments: # 1 Memorandum of Law, # 2 Appendix Abdullah case, # 3 Appendix Alexander case, # 4 Appendix Bliss case, # 5 Appendix Campbell case, # 6 Appendix DT v. Somers case, # 7 Appendix Eldaghar case, # 8 Appendix Fox case, # 9 Appendix Patenaude case, # 10 Appendix Sauerhaft case, # 11 Affidavit Certificate of service)(Spagnoli, Charles) (Entered: 11/30/2012)
128 STATUS REPORT regarding 12/5/12 deposition by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Spagnoli, Charles) (Entered: 12/04/2012)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Status Conference held on 12/4/2012. Appearances: Adam Humann, Esq., Alexandra Kolod, Esq. and Thomas Ude, Esq. for Plaintiffs; Charles Spagnoli, Esq. for Defendants. Counsel report on the status of discovery. One deposition is scheduled for 12/5/12. Counsel are trying to schedule 3 expert depositions for January. The meet and confer has not been done yet. Plaintiffs' counsel will file a status report regarding the meet and confer issues and the schedule for expert depositions by 1/4/13. (FTR Recorded) (rjb, ) (Entered: 12/05/2012)
Set Deadlines: Status Report due by 1/4/2013. (rjb, ) (Entered: 12/05/2012)
TEXT ORDER: The Court has reviewed and appreciates Dkt. No. 128. Counsel for Defendants to provide updated status report on deposition referenced in Dkt. No. 128 by December 27, 2012. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 12/7/12. (rjb, ) (Entered: 12/07/2012)
129 MEMORANDUM−DECISION &ORDER denying plaintiffs' objections to the 11/5/12 order of Magistrate Judge Dancks granting in part and denying in part Defendants' motion for a protective order (Dkt. No. 126 ) and AFFIRMING # 126 the November 5, 2012 order of Magistrate Judge Dancks. Signed by Judge Glenn T. Suddaby on 12/13/12. (lmw) (Entered: 12/13/2012)
130 LETTER BRIEF regarding completion of Kemple deposition by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Spagnoli, Charles) (Entered: 12/21/2012)
131 NOTICE by A.E.P., Charles Patrick Pratt T. Ude and A. Kolod letter to Judge Dancks re Discovery (Kolod, Alexandra) (Entered: 01/04/2013)
CLERK'S CORRECTION OF DOCKET ENTRY. Deleted letter request filed by Attorney Spagnoli on 1/4/2013 as an incorrect image was attached in error. Attorney Spagnoli will re−file the letter request. (rjb, ) (Entered: 01/07/2013)
132 Letter Motion from Charles C. Spagnoli, Esq. for Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner requesting Deferral of court conference submitted to Judge

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01/08/2013 01/18/2013
02/01/2013 02/07/2013 02/08/2013 02/08/2013 02/16/2013 02/16/2013 02/16/2013

Therese Wiley Dancks . (Spagnoli, Charles) (Entered: 01/07/2013)
TEXT ORDER: The Court has reviewed status report (Dkt. No. 131) and letter motion (Dkt. No.132). Request for court conference granted. Telephone Conference set for 1/18/2013 at 11:00 AM; Defendants' attorney is directed to initiate the call and should contact chambers at (315) 234−8618 once all counsel are on the line. This number is a conference line and should be used only at the time of the conference. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 1/8/13. (rjb, ) (Entered: 01/08/2013)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Telephone Conference held on 1/18/2013. Appearances: Alexandra Kolod, Esq. and Thomas Ude, Esq. for Plaintiffs; Charles Spagnoli, Esq. for Defendants. Judge Dancks has reviewed Dkt. Nos. 131 and 132. A mediation with George Lowe, Esq. is scheduled for 2/28/2013. Plaintiffs' motion to compel regarding document preservation is due by 2/1/2013. Mr. Spagnoli is directed to send Plaintiffs' counsel a letter by 2/1/2013 with his proposal regarding 30(b)(6) depositions. Plaintiffs' counsel is to contact the Court if the proposal is not acceptable. Each side is to file a letter brief by 2/8/2013 regarding Plaintiffs' attorney retainer agreement, responses may be filed by 2/15/2013. (FTR Recorded) (rjb, ) (Entered: 01/18/2013)
133 MOTION to Compel Discovery Motion Hearing set for 3/7/2013 10:00 AM in Syracuse before Magistrate Judge Therese Wiley Dancks Response to Motion due by 2/19/2013 filed by A.E.P., Charles Patrick Pratt. (Attachments: # 1 Memorandum of Law, # 2 Declaration of Alexandra P. Kolod with Exhibits A−G, # 3 Exhibit(s) Certificate of Service) Motions referred to Therese Wiley Dancks. (Kolod, Alexandra) (Entered: 02/01/2013)
TEXT ORDER: The Court has reviewed Notice of Motion (Dkt. No. 133) regarding Plaintiffs' request to file reply brief. Plaintiffs shall be permitted to file reply brief no longer than 5 pages by 3/1/13. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 2/7/13. (rjb, ) (Entered: 02/07/2013)
134 LETTER BRIEF Regarding Discovery of Retainer Agreements by A.E.P., Charles Patrick Pratt. (Attachments: # 1 Exhibit(s) June 2, 2011 Demand for Discovery and Inspection)(Ude, Thomas) (Entered: 02/08/2013)
135 LETTER BRIEF regarding discovery of Plaintiffs' attorneys' fees agreements by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C)(Spagnoli, Charles) Modified on 6/4/2013 (rjb, ). (Entered: 02/08/2013)
136 RESPONSE TO LETTER BRIEF filed by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner as to 134 LETTER BRIEF filed by A.E.P., Charles Patrick Pratt regarding discovery of attorneys' fees agreements. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C)(Spagnoli, Charles) (Entered: 02/16/2013)
137 Letter Motion from Charles C. Spagnoli, Esq. for Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner requesting Leave for insurer's representative not to attend mediation in person submitted to Judge Hon. Therese Wiley Dancks . (Spagnoli, Charles) (Entered: 02/16/2013)
138 RESPONSE in Opposition re 133 MOTION to Compel Discovery filed by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) D, # 5 Exhibit(s) E, # 6 Memorandum of Law, # 7 Affirmation Certificate of service)(Spagnoli, Charles) (Entered: 02/16/2013)

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02/17/2013 02/19/2013 02/26/2013 02/26/2013 02/27/2013
03/01/2013 03/12/2013
03/13/2013 03/23/2013 03/27/2013

139 RESPONSE TO LETTER BRIEF filed by A.E.P., Charles Patrick Pratt as to 135 LETTER BRIEF, filed by Jay Brown, Brian Moore, Amable Turner, Kenda Gray, Indian River Central School District Board of Education, John Davis, James Kettrick, Indian River Central School District, Troy Decker, Patricia Henderson . (Attachments: # 1 Attachment re time of filing)(Ude, Thomas) (Entered: 02/17/2013)
140 RESPONSE TO LETTER BRIEF filed by A.E.P., Charles Patrick Pratt as to 137 Letter Request/Motion, filed by Jay Brown, Brian Moore, Amable Turner, Kenda Gray, Indian River Central School District Board of Education, John Davis, James Kettrick, Indian River Central School District, Troy Decker, Patricia Henderson . (Ude, Thomas) (Entered: 02/19/2013)
141 Letter Motion from Charles C. Spagnoli, Esq. for Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner requesting Leave for individual defendants not to attend mediation in person submitted to Judge Therese Wiley Dancks . (Spagnoli, Charles) (Entered: 02/26/2013)
142 NOTICE by A.E.P., Charles Patrick Pratt Letter to Judge Dancks re Mediation Cancellation (Kolod, Alexandra) (Entered: 02/26/2013)
TEXT ORDER: The Court has reviewed Defendants' letter motions (Dkt. Nos.137 and 141) regarding mediation attendees. The Court has also reviewed Dkt. No. 142 and is aware of need for new mediator. Letter motions (Dkt. Nos 137 and 141) denied at this time without prejudice to renew once new mediator selected. Telephone Conference set for 3/12/2013 at 10:30 AM before Magistrate Judge Therese Wiley Dancks. Parties should be prepared to identify agreed new mediator, discuss discovery issues and set new deadlines. Plaintiffs' attorney is directed to initiate the call and should contact chambers at (315) 234−8618 once all counsel are on the line. This number is a conference line and should be used only at the time of the conference. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 2/27/13. (rjb, ) (Entered: 02/27/2013)
143 REPLY to Response to Motion re 133 MOTION to Compel Discovery filed by A.E.P., Charles Patrick Pratt. (Attachments: # 1 Declaration of Alexandra P. Kolod with exhibit)(Kolod, Alexandra) (Entered: 03/01/2013)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Telephone Conference held on 3/12/2013. Appearances: Alexandra Kolod, Esq. and Thomas Ude, Esq. for Plaintiffs; Charles Spagnoli, Esq. for Defendants. Counsel are in the process of selecting a mediator and conferring on the 30(b)(6) deposition issue. Five expert depositions need to be done and the 30(b)(6) witness. Defendants' counsel is directed to respond to Plaintiffs' counsel by the end of the week regarding the 30(b)(6) issues and submit a deposition schedule/status report regarding the mediator to the Court by 3/29/2013. Expert reports have been exchanged. Judge Dancks resets pretrial deadlines. The mediation deadline will be reset once the 3/29/2013 status report has been received. (FTR Recorded) (rjb, ) (Entered: 03/13/2013)
144 TEXT ORDER: Discovery due by 7/31/2013; Discovery Motions due by 8/9/2013; Dispositive Motions to be filed by 9/6/2013. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 3/13/13. (rjb, ) (Entered: 03/13/2013)
145 STATUS REPORT by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Spagnoli, Charles) (Entered: 03/23/2013)
146 TEXT ORDER: The Court has reviewed Dkt. No. 145. Case is opted out of mediation program. Settlement conference will be scheduled with Court once pending discovery motion (Dkt. No. 133) and letter requests regarding retainer agreements (Dkt. Nos. 134, 135, 136, 139) are decided. Parties are to continue conferring on Rule 30(b)(6) deposition topics and to schedule and complete depositions of remaining experts, except Dr. Dragan and Dr. Strauss, in the meantime. Conference call scheduled for April 19, 2013 at 10:30 AM. Parties

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04/19/2013
05/08/2013 05/14/2013 06/04/2013
06/05/2013 06/17/2013 06/21/2013
07/23/2013 07/23/2013 08/08/2013

should be prepared to discuss confirmed schedule of depositions and status of 30(b)(6) and motion deadline, if needed, on that issue. Defendants' attorney is directed to initiate the call and should contact chambers at (315) 234−8618 once all counsel are on the line. This number is a conference line and should be used only at the time of the conference. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 3/27/13. (rjb, ) (Entered: 03/27/2013)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Telephone Conference held on 4/19/2013. Appearances: Alexandra Kolod, Esq. and Thomas Ude, Esq. for Plaintiffs; Charles Spagnoli, Esq. for Defendants. Counsel have been conferring on the 30(b)(6) issues and may be able to resolve them without Court intervention. Defendants' counsel will submit a status report on the issues by 5/17/2013. The 30(b)(6) deposition cannot be done until the motions pending before Judge Dancks have been decided. The Collins and Grace depositions are scheduled for 5/10/2013 and 5/20/2013. A settlement conference will be scheduled for early June. (FTR Recorded) (rjb, ) (Entered: 04/19/2013)
147 NOTICE of Hearing: Settlement Conference set for 6/4/2013 at 01:00 PM in Syracuse before Magistrate Judge Therese Wiley Dancks. Settlement Statements due by 5/28/2013. (Attachments: # 1 )(rjb, ) (Entered: 05/08/2013)
148 STATUS REPORT pursuant to Court's April 19, 2013 direction by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Spagnoli, Charles) (Entered: 05/14/2013)
TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Settlement Conference held on 6/4/2013. Appearances: Adam Humann, Esq., Alexandra Kolod, Esq., Thomas Ude, Esq., Charles Pratt and Ashley Pratt for Plaintiffs; Charles Spagnoli, Esq., Paul Campbell and Jim Kettrick for Defendants. Final settlement not reached. Parties to continue negotiations and report back to the Court by 6/18/2013. Judge Dancks grants in part and denies in part the 133 and 135 motions, an order will be issued. Portion of record regarding settlement is sealed by the Court. (Court Reporter Eileen McDonough) (rjb, ) (Entered: 06/04/2013)
149 ORDER granting in part and denying in part 133 Motion to Compel; granting in part and denying in part 135 Letter Request. Signed by Magistrate Judge Therese Wiley Dancks on 6/5/13. (Attachments: # 1 Transcript) (rjb, ) (Entered: 06/05/2013)
150 STATUS REPORT as directed by court on June 4, 2013 by Jay Brown, John Davis, Troy Decker, Kenda Gray, Patricia Henderson, Indian River Central School District, Indian River Central School District Board of Education, James Kettrick, Brian Moore, Amable Turner. (Spagnoli, Charles) (Entered: 06/17/2013)
151 JUDGMENT DISMISSING ACTION BY REASON OF SETTLEMENT: this action is DISMISSED in its entirety without prejudice to the right of the parties to secure reinstatement of the case within thirty (30) days after the date of this judgment by making a showing that the settlement was not, in fact, consummated; and in the event that no request is made for reinstatement within thirty (30) days of the date of this judgment, the dismissal of this case shall thereafter be with prejudice. (lmw) (Entered: 06/21/2013)
152 Letter Motion from Thomas Ude, Jr. and Alexandra Kolod for A.E.P., Charles Patrick Pratt requesting additional time to finalize settlement submitted to Judge Hon. Glenn T. Suddaby . (Kolod, Alexandra) (Entered: 07/23/2013)
153 TEXT ORDER granting # 152 Plaintiff's Letter Request extending the period of time within which to consummate the settlement in this action pursuant to the # 151 Judgment for thirty (30) days from the date of this text order. In the event that no request is made for reinstatement within thirty (30) days of the date of this text order, the dismissal shall thereafter be with prejudice. Authorized by Judge Glenn T. Suddaby on 7/23/13. (lmw) (Entered: 07/23/2013)
154 STIPULATION of Dismissal by A.E.P., Charles Patrick Pratt submitted to Judge Suddaby. (Kolod, Alexandra) (Entered: 08/08/2013)

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08/08/2013

155 ORDER approving # 154 Stipulation of Dismissal with prejudice. Signed by Judge Glenn T. Suddaby on 8/8/13. (lmw) (Entered: 08/08/2013)