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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 1 ,of 53

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"f':'! LED

UNITED STATES DLSTRICTCOURT

_SOUTHERN DISTRICT OF NEW YORK

~~------------------..--------x

SHERRl ECCLESTON, Individually and .. Parent of,

T. L,

.

c, DAVID COHEN, IndlviduaUyand .. Parent of,
0, "",,& Q,C' J

HAR 2e2D1t
USOCWPSONY
CiviIAotionNo. ECf&:u>~ VERIFIED COMPLAINT

JERROW ROSEN, Individually and as Parent at;
A ./1.. 1lJl,l O. Il., )

.against.

PlaintiIli!,

PINE BUSH CENTRAL SCHOOL DISTRICT,

JUDGE KARAS

Defendant.
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Plaintiffs hythe/r atromeys, METHLAW OFFICES, P.C. complainingoftheDefendant, fur
their complaint alleges, upon infunnation and belief; as follows:

JUl!ISDICTION AND VENI1J!!
I. The United SlatesDislrictCourtbasjurisdictiononder28 U.S.C. §1331 aathe_

ofaction in tlJis,lioading arise uodor Sectiona 1981, 1983, 1985 and 1988, and 2000d ofl1t1e 42 of

the United States Code, Title VI oflhe CivllRigbtsActofI964, and the FourteoDlhAmendmcntto

the Constitution ofthtl United Slates. The Unites Slates District.Court of the Southern District of
New York is the propervenue for-this action as thtl Defendunt Pine Bush Central School District is

located witlJiu thtl Count;)' of Orange and at least cue ofPlalntiff's resides there.

PARTIES
,.·R· 2. PlaintiffShertiEcciestonis!heMotherof
doughier in the County of Ulster, State ofNew York. .

!IDd resides with her minor

BccI08IOQ OMI. r. PBCSD Verified Compllial

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3. Plaintiff David Cohen is the Father of O.C. and D.C. and resides

with his minor children in the County of Ulster. State of New York.

4. Plaintiff Jerrold Rosen is the Father of AR. and n.R. and resides with

his two minor sons in the County of Orange, State of New York.

5. At all times relevant to this action, the Defendant Pine Bush Central School District

(hereinafter referred to as PBCSD) was and is an entity residing at 156 Route 302, Pine Bush.

County of Orange, State of New York.

FACfUAL ALLEGATIONS

6. This is an action for anti-Semitic discrimination, harassment. and bullying in the

Pine Bush Central School District that bas affected multiple children (the Plaintiffs), over many

years, at different schools located with the Pine Bush Central School District that has caused

physical, psychological, mental, and emotional dsmages to the Plaintiffs.

A. PLAINTIFF T.E.

7. On the date of October 8, 2008. while Plaintiff T.E. was in the fifth

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grade at Pine Bush Elementary SchooL there was a schonl field trip to visit the Stalue of Liberty,

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Ellis Island and the LIberty Science Museum. This trip was scheduled for the day before Yom Kippur, and the children would not return until after sundown. The holiday of Yom Kippur started

at sundown which meant thatPlaintiffT.E., wbo is Jewish. would be nnableto attend the scbool trip.

Once notified of this issue, Plaintiff's mother SheIIi Eccleston spoke with Mr. Fisch, the Principal

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of Pine Bush Elementary School. to voice her concerns and see if there was another date when

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Plaintiff T.E. could attend the trip. There were no subsequent dates offered for this school trip.

PlaintiffT.E. was devastated that she had to miss this fun scbool trip in which all ofher friends were

attending.

8. In addition to not being able to attend the school trip with the rest ofber classmates,

many ofPlaintiffT.E.'s subsequent school assignments were based upon the school trip that she was

unable to attend. For approximately one week after the school trip. a majority ofthe school lessons

were based upon that school trip. As PlaintiffT.E. has always been an exemplary student, the fact

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that she could not actively participate in these lessons left her feeling distraught.

9. PlaintiffT.E. infunned har _har that she was unable to attend the field

trip because ofber religion. Her teacher did not provide her with any additional study materials to

review regarding Ellis Island and the other locations in order to allow her to complete her

assignments adequately; which frustrated T.E. to an enormous level

10. On or about and between the 10' day ofOctober, 2008, and the I" day ofJune 2009,

PlaintiffT.E. was in her home-room class at Pine Bush Elementary School, sitting next to two other

students. She witnessed these two studen~ K.L. and N.B., drawing swastikas in their planners.

PlaintiffT.E. was appalled by this bebevior. Wheo she arrived home that evening, PlaintiffT.E.

spoke to her mother about what she had seen these students draw on their planners. Ms. Eccleston

was especially concerned because one of the students was the son of the school Psychologist, Dr.

Laura Bush. Tbe next day, Ms. Eccleston drove PlaintiffT.E. to school aod had a meeting with Mr.

Fisch. the Principal, to speak to himaboutwhatPlaintiffT.E. had observed these two students draw.

The Principal acted indifferent and did not think that the two students' drawing swastikas in their

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planners was something to be concerned about. No appropriate action was taken. Ms. Eccleston also reported th,e incident to the DARE Officer, Police Officer James Johnson of the Town of Crawford Police Department. No action was taken.
11. One month after the above stated incident took place, Plaintiff T.E. was riding the school bus home when the same student K.L., who she had seen draw a swastika on his planner made eye contact with her and called her"a Jew' in a demeaning tone. This left her feeling scared. When she got off of the bus, Plaintiff T.E. and her mother looked up and saw this same student give them the middle finger, which insulted and upset both of them. Ms. Ecclestonreported this incident to the school bus driver, Art Champion. and to the school bus company. Ms. Eccleston asked the bus driver to personally report the incident, which she believes he did. There was no action taken by the school district or the bus company, a violation of the PBCD Student Code of Conduct.
12. During the Spring of Plaintiff T.E. 's 5" grade school year at Pine Bush Elementary School, on or about and between the 21" day of March, 2009 and the I" day of May, 2009,PlaintiffT.E. saw a swastika engraved on the playground slide at the school, which causedher great emotional distress. The next school day, Ms. Eccleston reported to the Principal that there was a swastika on the slide. and reminded him 'Of all of the prior anti-Semitic incidents that T.E. had witnessed. The Principal did not have the swastika removed. Ms. Eccleston also reported the swastika being engraved on the slide to the Superintendent of the Pine Bush School District. Mr.
Steinberg, and informed him of all of the prior incidents listed above. The swastika on the slide was not removed before the end of the school year despite the actual notice that the school had of its presence for months.

Ecdest~ eta! v. PBCSD Verified COIIlp1aint

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13. On or about the 1st day of September. 2009, Plaintiff T.E. began attending Crispell

Middle School, part of the Pine Bush Central School District, where she rode a school bus that

contained students from both Crispell Middle School and Pine Bnsh High School. During the school

bus rides to and from schoo!, one of the high school sttidents who rode the bus with Plaintiff T.E.-

routinely commented about white power and Hitler on a daily basis~ causing her great distress and

fear about what he would do to her if he found out that she was Jewish.

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14. On April 19, 2010, this same high school student and a couple of the other students on the bus talked about celebrating Hitler's birthday the following day; again causing PlaintiffT.E.

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great distress. After being informed of this conversation by Plaintiff T.E.• Ms. Eccleston

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immediately called the Superintendent, Mr. Steinberg. who was unavailable to speak with her. Ms.

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Eccleston instead spoke with Deborah June, the Superintendent's secretary, and told her that

Plaintiff T.E. reported that the kids on the school bus were planning on doing something the

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following day for Hitler's birthday. Ms. June responded to Ms. Eccleston: "How do theyevenknow that T.E. is Jewish?" showing a complete indifference to the serious situation. The students were

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clearly threatening Jewish students, a violation of the PBCSD Code of Conduct. No action or

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investigation was taken for the student's violation. PlaintiffT.E. did not attend school the follOWing

morning as she was petrifIed of what the other students might do to her.

15. Ms. Eocleston drove her daughter to Pine BnshE1ementary Schnnl that evening and

discovered that the swastika was stlll engraved on the slide after having been reported to the school

Principal and Superintendent more than one yearbefore thatdate. She informed Deborah Brush, the

assistant Superintendent in charge of business, that there was. still a swastika engraved on the slide

at Pine Bush Elementary School who finally had it removed. Ms. Eoclestion also informed Ms.

~et.aLv. PBCSDVerifiedCotnpJaiDl

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Brush that some of the students were planning to do something for Hitler's birthday. Ms. Brush sent

notices out to the bus company and the schools advising them. to watch for such behavior, however,

no disciplinary or remedial action was taken.

16. On or about the 21" day of April, 2010 PiaintiffT.E. returned to school. When she

got on the school bus that morning. the bus driver made her sit in the front seat of the bus. When

the bus arrived at Criapell Middle School. the bus driver yelled at Plaintiff T.R and stated that she

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had lied about the conversation regarding the other students celebrating Hitler's birthday, and was

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making it up. The bus driver continued to yell at PlaintiffT.E. and berate her in front of the other

kids until PlaintiffT.E. began to cry, at which point the driver yelled at PiaintiffT.E. for crying. The

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school bus driver attempted to take Plaintiff T.E. 's phone away from her when she sent her mother

a text message regarding the incident; which Plaintiff T.E. refused to allow the bus driver to do.

PlaintiffT.E. was completely traumatized by the incident, and extremely embarrassed that her peers

saw her crying. Ms. Eccleston inunediately called Ms. DeGong, the manager of the bus company,

to report the incident that had occurred between Plaintiff T.R and the bus driver. Ms. DeGong

arranged for a three·way phone conference three days later between Ms. DeGong, the bus driver, and

Ms. Eccleston. During this conversation. the bus driver continued to call Plaintiff T.E. a liar.

Plaintiff was appalled. After this incideot, Ms. Eccleston drove T.E. to school when she was able to

because T.E. was afraid to ride the school bus.

17. While in the sixth grade, PiaintiffT.R also witnessed a student named, M.K. point

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his hand like a gun at Plaintiff D.C•. It was reported to the teacher, Ms. Coffey. He was written up, and no further action was taken.

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18. Another instance in the sixth grade, the class was on a field trip at Mamakating Town Park. Plaintiff T.E. witnessed a student named M.C. was making fun of Plaintiff O.C. for being Jewish and threw sand ather. PlaintiffO.C.'s friend E.W. defeodedher and the boys engaged in a physical altercation at the Park. Plaintiff was terrified.
19. When Plaintiff T.E. was in the seventh grade, during math class, a student named, D.B .. constructed a Hasidic Jew he made out of pipe cleaners. Then another day at lunch, a student C.L., made a swastika out of pipe cleaners and told her that he was going to give to D.C.. Once Plaintiff O.C. found out she began to yell at him for what he made. The Vice Principal, Mr. Winter, witnessed the incident CL. received in school suspension.
20. On or about and between the first day of January, 2011 and.the 31" day ofJauuary,
was 2011, PlaintiffT.E. in English class at Crispell Middle School. While in class, another student,
C.O., told Plaintiff T.E. that she should be burned, which caused PlaintiffTE. grest distIoss. This statement was made while the students were leaming about the Holocaust and was threatening behavior, a violation of the PBSeD Student Code of Conduct:. No action was taken for this threateuing remark.
21. Ou or about the 11" day of April, 2011, while in study ha1l at Crispell Middle School, another student, S.G.. called Plaintiff T.E. "a Jew" in an insulting manner, said that she should be burned, and caIled her "crispy"; all of which caused Plaintiff T.E. great anguish. In response, Plaintiff T.E. and her mother reported this incident to the Vice Principal, Eric Winter. S.G,'s remark is a violation of the Pine Bush Student Code ofConduct, and no remedial action was

Ect:k:sIOllet.al v. PBCSD Verified complaint

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taken. Ms. Eccleston reported to Mr. Winter that "Jew" was being used as a curse word in the

hallways and explained how offensive this was to Plaintiff T.E.. Ms. Eccleston reported to Mr.

Winter that the anti-Semitic behavior was constant. but no action was taken.

22. On or about the 27· day of April, 2011, PlaintiffT.E. was in Spanish class at Crispell

Middle School when she heard a studen~ B.B., making fun Jewish people, which she reported to the

Vice Principal. Eric Winter. She was extremely insulted by what was said by this student about

people of her religion. No action was taken for this disruptive and offensive behavior in class. a

violation of the school district own rules and procedures.

23. On or about April 28, 2011, PlaintiffT.E. was in Math class at Crispell

Middle School and witnessed a conversation that took place between two students. where one

student, D.B., said that he did not know what to do about something and the other studeo!, 0.1.,

responded that it was because he was a Jew. Neither student is Jewish, the term Jew is thrown

around as a derogatory remark in the school. This offended Plaintiff T.E. and she reported this

incident to the Vice Principal. Eric Winter. No action was taken for this disruptive behavior. a

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violation of the PBCSD Student of Code of Conduct. 24. On or about the 25· day of May, 2011 PlaintiffT.E. was riding the school bus home

from Crispell Middle School. While on the bus, another student, T.D., had a picture of a Hasidic

Jewish man drawn in ink. on his stomach. This student lifted his shirt so that the picture was

exposed. Another studeo! said: "Let', throw pennies in his mooth," which upset Plaintiff T.E..

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Plaintiff T.E. reported the incident to her mother via a text message. Ms. Eccleston met Plaintiff

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T.E. at the school bus and reported the incident to the bus driver. Ms. Eccleston went to the Town

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of Crawford Police Department and reported the incident to Sergeant Eric Meir. Ms. Eccleston

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reported the numerous anti-Semitic incidents that had occurred at PlaintiffT.E.·s school and on the bus, and conveyed her fmstration with this anti-Semitic behavior. Sergeant Meir was also on the Pine Bush Central School District School Board. In response to advice given to her from Sergeant Meir, Ms. Eccleston also reported all of these incidents to lloyd Greer. another member of the Pine Bush Central School DistrictSchool Board. There was no remedial action taken by the school board.
25. On or about the 31" day of May, 2011, PlaintiffT.E. was riding the school bus home from Crispell Middle School when the student who had previously commented about White power sat with PlaintiffT.E. on the bus. PlaintiffT.E. asked to move her seat and this student refused to move in order to allow Plaintiff T.E. to get out of the seat. Plaintiff T.E. sent her mother a text message expressing her fear of this student sitting next to her. Ms. Eccleston called the Vice Principal and reported the incident to him. The bus company was notified of the situation, and the bus company then notified the bus driver over the radio transmission about everything that had occurred; causing every student in the front of the bus to hear the conversation. The radio conveyed that Ms. Eccleston had called the school and did not want PlaintiffT.E. sitting next to this student on the bus. The bus driver then conveyed all of this to Plaintiff T.E., loudly, in the presence ofall of the other students; which was extremelyemb3.Il1lSsing. The bus company's response made the situation much worse than it had been. The driver then moved T.E. to another seat. The student who had been sitting next to T.E. and another student began commenting about T.E. telling her mother everything. The student said that T.E. would get beaten up when she attended the eighth grade. The student threatened to commit a violent act against Plaintiff, it was made in the presence of a school official, and no remedial action was taken against the student or the employees. a violation of the school's own procedures.

Ecclesloo et.aL v. PBCSD Verified Complainl

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26. Ms. Ecclestonnotified Vice Principal ofthe lack: of discretion from the bus company

and informed him that Plaintiff T.E. was being threatened. and was not comfortable riding on the

school bus to get to and from school due to all of the anti-Semitic behavior experienced by Plaintiff

T.E. from the other students. The threatening violent behavior went unpunished even though it was

reported, a violation of the PBCSD Student Code of Conduct. Ms. Eccleston asked if the school

would provide another mode oftransportation for PlaintiffT.E. to get to and from the school to make

her daughter feel safe. She was told that it was not the School's responsibility to provide her with

this additional mode of transportation.

27. PlaintiffT.E. does not feel safe riding the school bus and has not done so since this

incident occurred. .

28. On or about the 7th. day of June, 2011, Ms. Eccleston met with Mr. Cohen. Mr.

Steinberg the Superintendent, James Johnson, and Lloyd Greer a member of the school board, and

reported all of the incidents previously discussed above. No action was taken after the meeting.

29. Ouor about the December 12, 2011, PlaintiffT.E. was severely beaten

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in gym class. Her hand was swollen and severely bruised. Her thumb was fractured.

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30. Ingymclass,PlaintiffT.E. was playing hockey. Herteamwaswinning. two other

students, D.R. and J.G. starting getting mad that her team was winning. They began calling her

names like stupid, annoying and retarded. Then a student named, D.R., stsrted hitting Plaintiff T.E.

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in the hand and the ankle with the hockey stick instead ofth. ball. A second student. J.G.,lifted her

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stick and told PlaintiffT.E. that she was going to hit her in the face with it PlaintiffT.E. responded

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by telling her if she did, she would punch her in the f"cking face. Mrs. Giuliani walked over to

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PlaintiffT.E. Eccleston at the bleachers and yelled ather for what she said to J.G. PlaintiffT.E. told

(k(;ieslOD eLai. v. PBCSO Verified ComplaiDt

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the teacher that "you will yell at me for saying that. but you aren't yelling at them for what they are saying and for hitting me". She turned and walked away. The teacher took no action. The students that beat the Plaintiff were not disciplined.
31. When PlaintiffT.E. was sitting in the bleachers, J.G. andD.R., kept pushing her into people. So after class Plaintiff T.E. went to talk. to Mr. Callo • the guidance counselor, with her
frieod S.W. Mr. Callo told Plaintiff T.E. to go to class. 32. Immediately after Plaintiff T.E. arrived home. she showed her mother
her hand and foot, and told her it hurt really bad. Ms. Ercleston took her to Urgent Care. On the
way to Urgent Care, Ms. Eccleston called Mr. Mwnmery. the Assistant Principal. to tell him what
happened. At Urgent Care, they took X-Rays of the hand and ankle. After they arrived home, the Doctor phoned and told them that Plaintiff T.E.'s thumb was fractured.
33. Oa Saturday, PlaintiffT.E. was in pain. Her hand was really swollen. Saturday afternoon, at the Town Tree Lighting, Ms. Eccleston showed a female ambulance worker. who said it didn't look good, and that she should get it looked at. Ms. Eeeleston took Plaintiff T.E. to the hospital, and theyput a new bandage on. After the hospital they went to the police department to make a report. Officer Levison said he would look into it and talk to the school.
34. Oa Monday, Ms. Ercleston took Plaintiff T.E. to school and told Mr. Mununery what happened. He promised to look into it. Plaintiff T.E. went to the Doctor at noon that day. The Doctor said her hand probably had a bruised bone and that her thumb was fractured. Plaintiff T.E. received a'cast and was told to follow up over the winter break.

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35. On Tuesday, PlaintiffT.E. went to Career Day and to Math class. Mr. Mummery

took her out of class and asked why she didn't go to the nurse. PlaintiffT.E. replied that itjust hurt.

She was told to go to class. Later on he brought in D.R., and she told him thatPlaintiffT.E. hit her.

PlaintiffT.E. asked that "if I hit her why didn't she report it and why wasn't there any marks on her".

D.R. said she wouldn't apologize for hitting and that maybe "I slannned my hand into • locker to

fnnne her". Plaintiff T.E. and D.R. were bicketing back and forth over what happeoed. Mr.

Mummery told n.R. to leave. He told Plaintiff T.E. nothing was going to be done because "he

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thought it was both of us", There were witnesses that saw it happen. No action was taken for the

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attack on Plaintiff T.E., even though there were witnesses and a police report was made of the

incident.

36. On or aboutJaouary 23, 2012, inhealth class, M.S" told an anti-Semitic joke in front

of Plaintiff T.E. about Jews and Boy Scouts involving Camp. Plalntiff was appalled and offended

by their jokes.

37. On January 24, 2012, John Boyle, the Principal, called PJaintiffT.E.

Eccleston into his office because her mother had called regarding the joke, and the there waa a

swastika in the girls bathroom. PlalntiffT.E_ told Mr. Boyleexactly where it was located. Mr. Boyle

told Ms. Eccleston, it was not there when he went to check on it later that day. The swastika was

still there on the bathroom stall when she went back to school the next day. Plaintiff D.C. got tired

of it and cleaned it off.

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38. On January 24. 2012 that same day. in math class during the school mid-term exam.

B.G. and A.F., two students were doing Hitler salutes. Plaintiff was extremely offended and felt

threatened. No action was taken for this class disruption, a violation of the PBCSD Student Code

of Conduct.

39. On or about January 25. 2012. B.G.• threw a dime at PlaintiffT.E. and hither with

it. PlaintiffT.E. was so upset she texted her mother that if she had to go back to school she would

have a nervous breakdown. Ms. Eccleston called the Mobile Mental Health Group, and spoke with

women who advised that this was an unhealthy environment for Plaintiff T.E. to be in. This was

PlaintiffT.E.·s last day at Crispell Middle School. She is now heing home schooled. Ms. Eccleston

reported the incident to the Town of Crawford Police Department.

40. laPine Bush Elementary School and Crispell. PlaimiffT.E. has viewed anti-Semitic

drawings and swastikas engraved allover school property. on the walls of the girls' bathrooms and

stalls. textbooks, on the playground, school desks, the hallways, It seemed to be everywhere she

looked. It was seen on daily basis and in several locations. which nauseated her. The swastikas and

other forms of anti-Semitic drawings and cravings were reported repeatedly on multiple occasions,

which has gone on for years with minimal remedial action by the school district to remove them.

41. One occasioninparticular, PlaintiffT.E., viewed a swastika engraved on her desk in

her music classroo~ which caused her great distress. The school did not remove the swastika from

her desk for over two weeks.

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42. Ms. Ecclestonhas met numerous times with the Superintendent ofPBCSD. the Vice

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Principal. the Principal, school bus drivers and their supervisors, Police Officers and various

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members of the school hoard. She reported to them all of the horrendous anti-Semitic incidents

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experienced by her daughter, previously discussed above, on numerous occasions. Nothing was done -
by the school faculty and staff to remedy the pervasive problem of anti-Semitism in their schools,

such as disciplining the students involved in this behavior, holding assemblies addressing the issue

of anti-Semitism. providing counseling for Plaintiff T.E. and for those students showing anti-

Semitic behavior, enrolling the snulents lashing out at Plaintiff T.E. in anti-bullying programs,

providing safety plans for Plaintiff T.E., and providing additional supervision of their students.

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43. Plaintiff T.E. has experienced extreme stress resulting from the constant

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bullying in her school due to her being of the Jewish faith. Plaintiff T.E.·s focus on bullying and

threats consume her every thought. Her grades have dropped significantly. She was attacked and

beaten. Ms. EccIestonhad to remove her daughter from attending the Pine BushSchool Districtdue

to the hostile education environment. Ms. Eccleston has seen Plaintiff T.E. withdraw from

friendships. Plaintiff T.E. will not do anything that involved going 4Ito the town of Pine Bush.

Plaintiff T.E. no longer wants to participate in any school sports. She has been completely

devastated by all of the anti-Semitic behavior that her classmates have shown towards her, and the

school condones the behavior. She has suffered physical injury and permanent psychological and

emotional injury.

B. PLAINTIFF O.C.

44. Plaintiff D.C. has seen swastikas drawn on numerous occasions inside of

other students' textbooks in her classes, which has caused her great emotional distress. No action

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was ever taken to remove the swastikas from the textbooks even though it was reported to the school.

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45. Plaintiff D.C. has seen swastikas drawn many times and in several locations

inside of the girls' bathrooms at school. She has reported these swastikas to school officials, and it

took: them several months to remove the swastikas.

46. Plaintiff D.C. witnessed another student, I.B., coming out of a classroom holding her

hand overherfaee. She saw that there had been a swastikadrawn on I.B. 's face. J.B. stated that one

student, C.N" held her hands behind her back while another student, K.C., drew the swastika on her

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face.

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47. Plaintiff O.C. slapped C.N. because she was so furious with his outrageous behavior.

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She was sent to the Principal's office because of this. The Principal, John Boyle. asked Plaintiff:

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"Why would you take offense to that when it was not directed at you?" which further enraged

Plaintiff O.C. that the school did not see that it was extremely wrong and offensive to all Jewish

students what these two students had done to J.B. The school never called J.B.'s parents to inform

them of what happened. Ms. Eccleston eventually told I.B.' s father what happened at school to his

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daughter. These two students areconsideced violent students as defmedin thePBCSD StudentCode

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of Conduct. No appropriate action was taken.

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48. When Plaintiff O.C. was in the sixth grade. one of the other students

knocked on her best friend's door and asked if there was a "Jew" there; referring to O.C.. When

O.c. found out what happened she became very upset and distressed.

49. Plaintiff O.C. was called a "christ killer" by another student in one of her classes.

i i

No action was taken to discipline this student, a violation of PBCOS Student Code of Conduct.

Ecclestonet.al v. PBCSD VcrifiedColllpWnt

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50. Another instance in the sixth grade. the class was on a fleld trip at Mamakating Town

Park. M.C. was making fun of Plaintiff O.C. for being Jewish and pick up a penny and said "look --
I'm a Jew" and threw sand at her. Plaintiff O.C:s friend E.W. defended her and the boys engaged

in a physical altercation at the Park. Plaintiff D.C. was terrified.

51. Plaintiff D.C. overheard a conversation on the school bus where other students were

making fun of the Holocaust and said that she should be burned This devastated and terrified

Plaintiff O.C.. She told the bus driver who did nothing. The bus driver said "sbe would listen for

it next time", No action was taken against the Students for their violation of the PBSCD Student

Code of Conduct. No action was taken against the Bus Driver.

52 Plaintiff O.C. was called a "stupid Jew" time and time again by the other students in

her classes, which upset her greatly. She reported this behavior. No action was taken, a violation

of the PBCSD Student Code of Conduct.

53. PlaintiffO.C. was called a "Jesus hater" in school byS.G., which led toa verbal fight

-,i

in school between Plaintiff D.C. and the student that said these words. No action was taken. a

i

1

violation of the PBCSD Student Code of Conduct.

_i,

54. While in the sixth grade, they were watching a viden about the Holocaust, one of the

students, MK., in the classroom looked at Plaintiff O.C., made his hand look like the shape of a gun,

and stated: "Look, I'm killing Jews." Plamtiffwas afraid. Plaintiff O.c. reported this incident to

her teacher. Ms. Coffey. The student was written up. No further action was taken.

55. When she was in.the seventh grade, Plaintiff O.C. was called a "dirty

disgusting Jew" by one ofherfellow classmates. lD. This started a screaming match in the hallway

between Plaintiff O.C. and ID. They both went to the Vice ~ipal's office wbo let them talk it

~ cui. v. PBCSD Verified Complaint

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out. I.D. just wanted to leave so she apologized. No action was taken for this disruptive and offensive behavior. On several other occasions the students would say: "You're such a stupid Jew!" and no action was taken.
56. In seventh grade English class, there was a swastika drawn on PlaintiffD.C.'s desk, and she reported to Mr. Winter the Assistant Principal wbo gotrid of it Approximately a week later,
there was another one on her desk, again she reported it and Mr. Winter got rid of it. but it repeated for several weeks. At one point there were three swastikas on her desk and written inside on of them said "O.C.'s aJew". Plaintiff was appalled and afraid. No appropriate action was taken, aviolation
of the PBCDS Student Code of Conduct. 57. Thatsame year, someone drew a swastika in Plaintiff D.C.'s friend, C.M 's year book
next to ber picture. When she saw it, Plaintiff D.C. was appalled, scared, and offended. The yearbook was give to Mr. Winter, who blocked out the swastika from the yearbook.
58. C.L. made a swastika out of a green and ted piper cleaner and showed it to ber friends. He told PlaintiffT.E. he was going to give it to ber but before be oould sbe starting yelling at him for this. Mr. Winter witnessed the situation, and C.L. received in school suspension.
59. On the 14" day of April, 2011, Plaintiff D.C. observed another student drawing a
swastika on a desk during science class, which distressed her immensely. No action was taken. a
violation of the PBCSD Student Code of Conduct. 60. Plaintiff D.C. heard a student tell to another student about Plaintiff D.C. that they
should "stab her with a menorah and sink her with a cross." This caused Plaintiff D.C. to became terrified of what the other students might do to her. No action was taken.

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=

61. At lunch time another student, K.R.• told P\aintiffO.C.'s friends she should "go back

to pick up pennies from the street" referring to O.C. When Plaintiff O.C. friends told her Plainliff

O.C. was appalled. No action was taken. a violation of the PBCSD Student Code of Conduct.

62. A student always had Nazi signs drawn on his binder and told Plaintiff O.C.

during their Spanish class that he was Hitler to instill fear in ber, which he succeeded at doing.

63. On or about and between the flfSl day of September, 2010 and the 31" day of

October, 2010 at recess, one of the male students, C.V., attempted to shove a quarter in Plaintiff

O.C.'s mouth. His twin brother, J.V. held PlaintiffO.C. arms down so she couldn't move. Plaintiff

O.C. was ablelo break free and pnnched C.V. in theebesl in order to stop him. No action was taken.

a violation of the PBCSD Studenl Cnde of Conduct.

64. When in the eighth grade, there was a poster of President Ohama in her Social

Studies class and someone drew a swastika on it. Plaintiff D.C. reported it to the teacher, Mrs.

Hennessy three times, and nothing was done about it. When the teacher left for maternity leave.

Plaintiff O.C. reported it to the substitute teacher who did nothing about it either. Plaintiff O.C. then

reported it to Mr. Mummery the Assistant Principle who fInally fixed it. The swastika was on the

poster for over a month.

65. In Jannary 2012, there was a swastika in the bathroom stall that said "fur any Jew

who wants il". Plaintiff O.C. reported this to Mr. Mummery. Plaintiff T.E. also reported to him al

least two to three times. It was not taken down. Plaintiff O.C. got tired of looking at it and erased

it herself on January 24, 2012.

EcclestODet.aL v. PBCSD Verified Coqlaint

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 19 of 53
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66. Many students would tell PlaintiffO.C. that she had "stupid Jew curls" which caused her to feel self-conscious about how she looked. In March 2012. J.G. made fun of D.C. by curling her hair and saying it's PlaintiffO.C.
67. As a direct result of the constant harassment and bullying experienced by Plaintiff D.C. on a daily basis in the PBCSD. Plaintiff D.C. has become severely distracted during school hours and cannot focus on her classes. She does not participate in extracurricular activities because she is constantly afraid as she is always heing made fun of and threatened for being of the JewiSh faith. The intimidation, name calling. threats, and verbal and physical assaults. have cause her to be socially isolated aod in fear of her peers at school. and her grades have dropped dramatically. when they used 10 be outstanding. Plaintiff D.C. was failing her classes. which she has never done before in the past.
68. These horrendous anti-Semitic behaviors shown by other srudents towards Plaintiff D.C.s in the PBCSD were never addressed by the faculty and staff of the school and continue to occur to this day. They have caused physical injury as well as permanent psychological and emotional harm to Plaintiff D.C.
C. PLAINTIFF D.C. 69. Plaintiff D.C.• had chaoge thrown at him everyday from sixth to ninth grades. No
action was taken, a violation of the PBCSD Student Code of Conduct.
70. In the eighth grade. students would sing songs of killing "Niggers" aod "Jews". They woold take his belongings out of his back pack and throw them on the ground because he was
"Jewish" which continued through the ninth grade.

Eccleston et.a1 v. PBCSD Vcrii'1edComplaint

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71. During the sixthgrade through the eighth grade, students threw change into garbage

receptacles and tell him to go get it, which caused him anxiety and fear when at school. No action

taken, a violation of the PBCSD Student Code of Conduct

72. During the sixth through ninth grades, students would threaten to burn him in the

oven, whiQh caused him anxiety, fear and gravely upset Plaintiff D.C.. No action was taken. a

violation of the PBCDS Student Code of Conduct.

j

73. When Plaintiff D.C. was in the ninth grade, a seniorslapped him in the face

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frequently as he got off the bus calling him a Kik.e all of that year. No action was taken, a violation

1

of the PBCDS Student Code of Conduct.

74. Plaintiff D.C. was repeatedly called "Ashes" during the ninth grade. No

action was taken, a violation of the PBCDS Student Code of Conduct.

75. In the tenth grade, multiple students in his math class were bullying other Jewish

students. The teacher, Ms. King. heard them and saw them. Ms. King did nothing over his

objections to this behavior. This oCCUlTed on a regular basis in her classroom. No action was taken,

J

a violation of the PBCDS Srudent Code of Conduct.

76. As a direct result of the constant anti-Semitic harassment and bullying experienced

by Plaintiff D.C. on a daily basis in the PBCSD, Plaintiff D.C. has been caused immense stress,

anxiety, and fear of attending schonl as h. is afraid of what his peers might do to him. Plaintiff D.C.

has become socially isolated, and does not participate in extracurricular activities for fear of being

bullied by his peers. He has suffered physical injury as well as permanent psychological and

:..l, ;

emotional harm.

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Eccl~1O!l et.a!. v. PBCSD Verified CompWnt

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 21 of 53

D. PLAINTIFF A.R.

77. In the seventh grade at Crispell Middle School, students in Plaintiff A.R.' s class

would yell out anti-Semitic comments such as "stupid Jew", There were swastika's carved or

drawn on a desk or wall all year. Plaintiff AR. had pennies and other coins thrown at him in the

seventh grade. Many of the anti-Semitic incidents took place in the cafeteria at school and were

witnessed by the teachers and staff who took no action, a violatioo of the PBCSD Student Code of

Couduct.

78. In the eighth grade at Crispell Middle School, during lunch time Plaintiff A.R. was

pelted with spare cbange, hordes of students would sit on the bench aud pester him aud his friends
for some change, implying that a Jew such as himself would have iudefmitely deep pockets full of

quarters. They would call him a "stupid Jew" if he did not give them any cbange. Another time in the cafeteria, a student put a piece of tin foil on their head and said "I have a yarmulka, I am a Jew

just like you". The incidents in the cafeteria would happen right under the teacher's noses, but they

took no action. A violation of the PBCSD Student Code of Conduct.

79. Duriag that year in eighth grade, it seeroed everywhere he looked there would be a

i

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i

swastika carved onto a wall or a desk, in the bathrooms, textbooks, and sometimes drawn on a piece

of paper and passed around the classroom as a note. A violation of the PBeSD Student Code of

Conduct.

80. Halfway through the year, a student walked up to him at luoch time aud went to
punch him in the face, but Plaintiff A.R. was able to stop him. Plaimiff A.R. fought back. This

student was provoking him. because he is Jewish. They were both suspended.

Eccleston eta!. v. PBCSD Verified CompIa.int

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 22 of 53

81. Another time, a student approached him and asked him if he was Jewish. The

student immediately told ajoke ''What is the difference between a Jew and a pizza?....One doesn't

scream as it gets put in the oven." The other student grabbed a history book, and flipped to a page

of September 11· , then said it was his fault that it Itsppeoed. Plaintiff AR. told the Principal, the

student was punished with in school suspension and was told to write an apology note. It was never

received.

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82. PlaintiffA.R. 's father met with the Vice Principal of Crispell Middle School on more than one occasion regarding the anti-Semitic bullying of his two sons, AR. and D.R.. Plaintiff's

\

father specifically asked if there were any other students experiencing anti-Semitism at the school

He was told that there were no similar incidents reported by other students.

83. Plaintiff AR.·s father removed AR. from the school for a1toost a year due to the

harassment, bullying, name calling, threats, assaults, and intimidation by by his peers due to him

being Jewish and the inaction oftbe school administration to condemn the anti-Semitic behaviorthat

- ,•j

was prevalent throughout the school and student body.

84. Since Plaintiff AR. has returned Pine Bush High school, Plaintiff AR. has seen

swastikas written in marker on the bathroom wall and on the bleachers in the gym. which has upset

aod offended him

85. As a direct result of the constant aati-Sentitic harassment and bullying experienced

by Plalntiff AR. on a daily basis in the PBCSD, Plaintiff AR. has been caused immense stress,

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anxiety, and fear of attending school .. he is afraid ofwhat his peers ntightdo to him. Plaintiff A.R.

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6::ckstonct.IIL v. PBCSD Verified Complaint

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 23 of 53

has become socially isolated. and does not participate in extracurricular activities for fear of being

bullied by his peers. His grades are suffering. He bas suffered physical injury as well as pennanent

psychological and emotional harm.

E. PLAJNTIFF D.R.

86. In 2008, during the first week of the sixth grade at Crispell Middle Schoo~ Plaintiff

D.R. was asked if he was Jewish between fifteen to twenty times, which upset him and caused

J

anxiety when he was at school

~1

87. In the flISt week of October 2008, in the cafeteria students would ask him ifhe had

!

"Jew gold". He dido't know how to respond.

88. In the third week of October 2008, about twenty or so students threw change

at him in the cafeteria. which gravely upsethim and has cause him fear and anxiety while at school.

Plaintiff D.R reported the anti·Semitic incidents to the lunchroom monitors, guidance office, and

the Vice Principal, Robert Peters. No action was taken.

j

89. In the second week of November 2008, Plaintiff D.R filed a report and an announcement was made on the loud speaker that said that harsh action will be taken against any

•

student caught discriminating against another student, He was left alone for about a month and. then

the bullying started all over again.

90. In December 2008, Plaintiff D.R. weot on a ski trip with the school to Belleayre

Mountain. On the way home, an S" grader asked him if he was Jewish. He replied yes. After that

the next fifteen minutes were spent with kids randomly slapping the back of his head. More kids

proceeded to hithim, curse at him, llunw change and other items across the bus athim. Areport was

EccIestonet.aL v." PBCSD Vtzifuxl Complaint

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 24 of 53

made against the kid who started it. He had to write an apology. No appropriate or remedial action

was taken against the aggressors.

91. In January 2009, other students would call him a "stupid Jew", Money was thrown

more frequently, except this time they would aim directly for him. Swastikas were everywhere in

the school, in the bathrooms, the cafeteria, textbooks, desks in the classroom. Several reports were

filed with the school administration for that month. No action was taken, a violation of the PBCSD

I

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Studeut Code of Conduct. 92. Plaintiff n.R.'s father met with the Vice Principal of Crispell Middle School

on more than one occasion regarding the anti-Semitic bullying of his two sow. AR. and D.R.

PlaintiffD.R.' sfather specifically asked ifthere were any other students experiencing anti-Semitism

at the school. He was told that there were no similar incidents reported by other students. No action

was taken and the incidents continue.

93. As a direct result of the constant anti-Semitic harassment and bullying experienced

by Plaintiff n.R. on a daily basis, Plaintiff n.R. has beeu caused immense stress, anxiety and fear

,

of attending school because be is afraid what his peers might do to him. Plaintiff n.R. no longer

1

participates in after school activities. Plaintiff D.R. quit the track team. He has snffered physical

•
injury as well as pennaneut psychological and emntional harm.

AS AND FOR A FIRST CLAIM
(againat PBCSn in violation of PJaintiffT.E. 's rights under Title VI of the Civil Rights Act of 1964)
94. PlaintiffT.E. repeats and realleges paragrsphs I through 93 as if fully stated herein.
95. Plaintiff T.E. has a protected right to be free from <tiscrimination and

harassmeut under Title VI of the Civil Rights Act of 1964.

Eccleston eul. v. PBCSD Verl1it:d ComplaiIl1

Page 24 of 53

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 25 of 53

96. While a student in the Pine Bush Central School District. Plaintiff T.E.,

was subjected to daily discrimination, harassment. and bullying fromother students ather school due

to her being Jewish.

97. Defendant PBCSD had actual notice of the racial and religious hostility occurring at

Crispell Middle School and the Pine Bush Central School District. A number of the incidents were

,

reported to the Principal. Vice Principal. teachers, facuhy. and staff members of CrispeU as well as

I

bus drivers,the bus company, and Town of Crawford Police Department PBCSD failed to take

~

remedial measures to prevent further discrimination of Plaintiff T.E. and other Jewish students

!
!

allowing the behavior to continue and become permissible and acceptable throughout the school

district

98. Defendant PBCSD acknowledged and was aware of this severe, pervasive, and

disturbing behavior towards Plaintiff T.E., and acted with deliberate indifference towards this

situation which resulted in ham to the Plaintiff.

99. 'The environment was permeated with racial and religious hostility of such severity
or pervasiveness so as to significantly alter the conditions of Plaintiff's educational environment

resulting in physical attacks and injury and thereby deny her eqna1 access to the school's resources

and opportunities.

100.As aresultofDefeodant. PBCSD's violationofPlaintiffT.E.'s rights uoderTitle VI of

the Civil Rights Act of 1964, Plaintiff T.E. has suffered physical, entotional and psychological

damages in an amount to be determined. at trial, but in no event less than twenty five milliondollars

($25,000,000.00).

Eccleatt.m et.a!. Y. PBCSD VetifiedCompJaiDt

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AS AND FOR A SECOND CLAIM
(against PBCSD in violation of PlaintiffT.E.'s rights under 42 U.S.C. § 1983 a violation of Substantive Due Process) 101. PlaintiffT.E. repests and realleges paragraphs 1 through 100 as if fully stated herein. 102. Defendant PBCSD violated Plaintiff T.E.' s substantive due process rights to equal protection under the 14" Amendment of the United States Constimtion. PBCSD allowed
discriminatory practices and anti- Semitic behaviors and actions to become institutionalized and
condoned whicb penalized PlalntiffT.E. for being of the Jewisb religion, and subjected the Plaintiff T.E. to a constant barrage of barassment and bullying for being of the Jewisb faith without any type
of intervention or remediation. 103. The Defendant's failure to take action to prevent the diScrimination and harassment
created or increased the danger to which the Plaintiff T.E. was exposed by their utter disregard and deliberate indifference towards the discivline students for their conduct. The school district's inaction to prevent further harassment and bullying towards Jewish students gives rise to a policy that tolerate's discriminatory behavior and student on student harassment~
104. Thediscriminating, barassing, and bullyingbehavior ofthePBCSD siudeots, and the
deliberate indifference to the behavior by the Defendan~ rose to the level of egregious condoct so brutal and offensive to human dignity as to shock the conscience.
105. That by reason of the aforesaid occurrence, and Defendant's oegligence and other condoct as alleged herein Pleintiffhas been caused to suffer psychological, mental, emotional and
physical injury.

, .

Eccleston etal v. PBCSD Verified Complaint

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106. As a result of Defen<iant, PBCSD's violation of Plaintiff T.E. 's substantive due

process rights under the Equal Protection Clause of the Fourteenth Amendment, Plaintiff T.E.

Eccelston has suffered physical, emotional and psychological damages in an amount to be

determined at trial, but in no eveot less than twenty five million dollars ($25,000,000.00).
AS AND FOR A THIRD CLAIM
(against PBCSD for Breach of Duty to Protect T.E.) 107. Plaintiff T.E. repeats and realleges paragraphs I through 106 as if fully stated herein.

108. Defendant PBCSD had a duty to protect Plaintiff T.E. from harm while she was in

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their care and custody at Crispell Middle School.

109. Defeodant PBCSD had actual notice of the ant-Semitic, violeot, bullying

behavior exhibited by numerous students at PBCSD towards Plaintiff TE. Fellow students

subsequently broke Plaintiff T.E.' s hand during her gym class after severely beating her and
antagonizIDg her during the class. in full view of the teacher. The students' behavior was the

proximate cause of Plaintiff T.E.'s physical injury, and has caused mental anguish and distress.

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110. PBCSD had actual notice of violent and harassing behavior on the part of various students in their school district towards Plaintiff T.E. on numerous occasions prior to this

attack.. This actual notice on the part of the school gave rise to a duty to protect Plaintiff T.E.

from this violent and harassing bullying. PBCSD violated this duty.

111. School authorities hnd sufficiently specific knowledge or notice of dangerous

conduct that eventually led to the causation of Plaintiff T.E. 's injury; that is, that these third-party

.. J i

students' acts against Plaintiff could reasonably hnve been anticipated by PBCSD. PBCSD knew

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or should have known that students had a history of violent and aggressive behavior towards

EccleatoD et.al. v. PBCSD Verified CompIainJ:

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 28 of 53

PlaintiffT.E. and the other Jewish students in the school, which posed a threat to the safety of all

students of the Jewish faith that attended. that school.

112. As a result of Defendant PBCSD's breach of their duty to protect Plaintiff T.E.

from the anti-Semitic violent behavior present in their school, Plaintiff T.E. has suffered

physical. emotional and psychological damages in an amount to be determined at trial, but in no

event less than twenty five million dollars ($25,000,000.00).

I
.~

AS AND FOR A FOURTH CLAIM
(against PBCDS for Negligeot Infliction of Emotional Distress)

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113. PlaintiffT.E. repeats and realleges paragraphs 1 through 112 as if fully stated herein.

114. PBCDS has adutyto adequately .upervisethestudents in theircbarge and to exercise

care as loco-parentis over the students in their custody and control.

lIS. PBCSD had actual notice and had sufficient specific knowledge of the dangerous

proclivities and anti-Semitic threais by students against Plaintiff T.E..

116. PBCSD lack of interest or disregard to take remedial action to stop the anti-Semitic

.j

threats against PlaintiffT.E. created an environment which unreasonably endangers PlaintiffT.E.'s

~

physical safety and caused her to fear for her physical safety.

117. As a result of Defendant PBCDS's failure to exercise a reasonable degree ofeare

over Plaintiff T.E. in their failure to adequately supervise PBCDS students, train their employees,

enforce their own policies, and protect Plaintiff T.E.. Defendant Pine Bush Central School District

acted in a negligent manner, foreseeably causing il\iury to Plaintiff T.E., which includes physical,

i
l

emotional and psychological injury resulting in damages in an amount in the amount of twenty five

l

million ($25,000,000) dollars.

Bccleston etal. v. PBeso Verified Complaim

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 29 of 53
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AS AND FOR A FlFfH CLAIM
'(against PBCSD in violation of Plaintiff O.C.'s rights
WIder Title VI of the Civil Rights Act of 1964)

118. Plaintiff D.C. repeats and realleges paragrapbs 1 through 117 as iffully stated herein.

119. Plaintiff O.C. has a protected right to be free from discrimination an and harassment

uuder Title VI of the Civil Rights Act of 1964.

120. While a student in the Pine Busb Ceotral School District, Plaintiff D.C., was

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subjected to daily discrimination, harassment, and bullying from other students at ber school due to

I

her being Jewish.

121. DefendantPBCSD bad actual notice of the racial and religious hostility occurring at

I

the Pine Bush Central School District PBCSD failed to take remedial measures to prevent further

discrimination, harassment, and bullying of Plaintiff D.C. and,other Jewish students allowing the

behavior to continue and become permissible and acceptable throughout the school district.

,
1 ,

122. Defendant PBCSD acknowledged and was aware of this severe, pervasive. and
disturbing behavior towards Plaintiff a.c., and acted with deliberate indifference towards this

I

situation which resulted in physical, emotional and psychological damages to the Plaintiff. 123. - The environment was permeated with racial and religious hostility of such severity

or pervasiveness so as to significantly altertheconditions ofPlaintifrs educational environment and

thereby deny them equal access to the school's resources and opportunities.

EccIcsIOn d.al y. PBCSD Verified CQmplaiDt

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124. As a result of Defendant, PBCSD's breach of Plaintiff O.C.'s rights under Title VI of the Civil Rights Act of 1964, Plaintiff has suffered physical, emotiooa1 and psychological damages in an amount to be detennined at trial, but in no event less than twenty five million dollars ($25,000,000.00).
AS AND FOR A SIXTH CLAIM
(against PBCSD in violation of Plaintiff O.C.'s rights
under 42 U.S.C. §1983 a violation of Substantive Due Process) 125. Plaintiff O.C. repeats and realleges paragraphs 1 through 124 as iffully stated herein.
126. Defendant PBCSD violated PlaintiffO.C.'s substantive due process rights to equal protection under the 14" Amendment of the United States Constitution. PBCSD allowed discriminatory practices and anti· Semitic behaviors and actions to become institutionalized which peualized Plaintiff O.C. for being of the Jewish religion, and SUbjected the Plaintiff O.C. to a constant barrage or harassment and bullying for being of the Jewish faith without any type of intervention or remediation.
127. The Defendant's failure to take action to prevent the discrimination and harassment created or increased the danger to which the Plaintiff D.C. was exposed by their utter disregard and deliberate indifference towards the discipline students for their conduct. The school district's inaction to prevent further harassment and bullying towards Jewish students gives rise to a policy that tolerates and condones discriminatory behavior and student on student harassment in violation of their own rules and procedures.
128. Thediscriminating, harassing, aod bullying behaviorofthePBCSD students, aod the deliberate indifference to the behavior by the Defendant. rose to the level of egregious conduct so
brutal and offensive to human dignity as to shock the consci=.

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129. That by reason of the aforesaid occurrence, and Defendant's negligence and other

conduct as alleged herein Plaintiff has been caused to suffer physical. emotional and psychological

damages.

130. As a result of Defendant, PBCSD's violation of Plaintiff D.C.·s substantive due process rights under the Equsl Protection Clsuse of the Fourteenth Amendmen~ Plaintiff has

been damaged in an amount to be determined at trial, but in no event less than twenty five million

dollars ($25,000,000.00).

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AS AND FOR A SEVENTH CLAIM
(against PBCDS for Negligent Infliction of Emotional Distress)

131. PlaintiffO.C. repeats and realleges paragraphs 1through 130 as iffully stated herein.

132. PBCDS has aduty to adequately supervise the students in their charge and to exercise

care as loco parentis over the students in their custody and control.

133. PBCSD had actual notice and had sufficient specific knowledge of the dangerous

proclivities and anti-Semitic threats by students against Plaintiff O.C.

134. PBCSD lack: of interest or disregard to take remedial action to stop the anti-Semitic

thrests against PlaintiffO.C. created anenvirorunent which unreasonably endangers PlaintiffO.C.'s

physical safety and caused her to fear for her physical safety.

135. As a result of Defendant PBCDS's failure to exercise a reasonable degree of care

over Plaintiff D.C. in their failure to adequately supervise PBCDS students. train their employees,

enforce their own policies, and protect Plaintiff O.C., Defendant Pine Bush Ceotral School District

acted in a negligent manner, foreseeahly causing injury to Plaintiff D.C., which includes physical,
emotional and psychological injury resulting in damages in an amount in the amount of twenty five

million ($25,000,000) dollars.

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EecJestonctaL v. PBCSD Verifted Complaint

Page 31 of 53

March27,2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 32 of 53
AS AND FOR A EIGHTH CLAIM
(against PBCSD in violation of Plaintiff D.C.·s rights under Title VI of the Civil Rights Act of 1964)
136. Plaintiff D.C. repeats and realleges paragraphs I through 135 as if fully stated herein.
137. Plaintiff D.C. has a protected right to be free from discrimination and harassment under Title VI of the Civil Rights Act of 1964.
138. While a student in the Pine Bush Central Sehool District, Plaintiff D.C., was subjected to daily discrimination. harassment. and bullying from other students at his school due to him being Jewish.
139. Defendant PBCSD had actual notice of the racial and religious hostility occurring at the Pine Bush Central School District. PBCSD failed to take remedial measures to prevent further discrimination, harassment, and bullying of Plaintiff D.C. and other Jewish students allowing the behavior to continue and become permissible and acceptable throughout the school district
140. Defendant PBCSD acknowledged and was aware of this severe, pervasive, and disturbing behavior towards Plaintiff D.C.. and acted with deliberate indifference towards this situation which resulted in physical. emotional and psychological hann to the Plaintiff.
141. The environment was permeated with racial and religious hostility of such severity or pervasiveness so as to significantlyalter the conditions ofPlaintiff's educational environmentand thereby deny them equal access to the school's resources and opportunities.

Eedcston d.at Y. PBCSD Verified Complaint

Page 32 of 53

Mlirch 27. 2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 33 of 53

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142. As a result ofDefendan~ PBCSD's breach of Plaintiff D.C.'s rights under Title VI of the Civil Rights Act of 1964, Plaintiff has suffered physical, emotional and psychological hann
and been damaged in an amount to he determined at trial, but in no event less than twenty five
million dollars ($25,000,000.00).
AS AND FOR A NINTH CLAIM
(against PBCSD in violation of Plaintiff D.C.'s rights under 42 U.S.C. §1983 a violation of Substantive Due Process) 143. Plaintiff D.C. repeats and realleges paragraphs 1 through 142 as iffully stated herein.
144. Defendant PBCSD violated Plaintiff D.C.'s substantive due pmcess rights to equal protection under the 14" Amendment of the United States Constitution. PBCSD allowed discriminatory practices and anti- Semitic behaviors and actions to become institutionalized and
condoned which penallzed PlaintiffD.C. for being of the Iewish religion, and SUbjected the Plaintiff D.C. to a constant barrage ofharassment and bullying for being of the Jewish faith without any type of intervention or remediation.
145. The Defendant' s failure to take action to prevent the discrimination and harassment created or increased the danger to which the PlaintiffD.C. was exposed by their utter disregard and deliberate indifference towards the discipline of students for their conduct. The school district's inaction to prevent further harassment and bullying of Jewish students gives rise to a policy that tolerate's and condones discriminatory behavior and student on student harassment in violation of their own rules and procedures.
146. Thediscriminating, harassing, and bullyingbehaviorofthePBCSD students, andthe
deliberate indifference to the behavior by the Defendant. rose to the level of egregious conduct so brutal and offensive 10 human dignily as to shock the conscience.

Eccles!oa et.al v, PBCSD Verified ~t

Page 33 of 53

March Zl. 2OI2

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 34 of 53

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147, That by reason of the aforesaid occwrence, and Defendant's negligence and other

conduct as alleged herein Plaintiff has been caused to suffer physical, emotional aod psychological

injury.

148. As a result ofDefeodaat, PBCSD's violation of Plaintiff D.C.'s substantive

due process rights uoder the Equa1 Protection Clause of the Fourteenth Ameodment, Plaintiff has

suffered physical, emotional aod psychological injuries and has beeo damaged in an amount to be

determined at trial, but in no event less than twenty five million dollars ($25,000,000.00).
AS AND FOR A TENTH CLAIM
(against PBCDS for Negligent Infliction of Emotional Distress)

149. PlaintiffD.C. repeats andrealleges paragraphs 1through 148 as if fully stated herein.

150. PBCDS has • duty to adequately supervise the snuIents in their charge aod to exercise

care as loco parenh's over the students in their custody and control

151. PBCSD had actual notice and had sufficient specifu: knowledge of the dangerous

proclivities aod anti-Semitic threats by students .gainst Plaintiff D.C..

152. PBCSD lack of interest or disregard to take remedial action to stop the anti-Semitic

threats against PlaintiffD.C. created anenvironment which unreasonably endaagers PlaintiffD.C.'s

physical safety aod caused him to fear for his physical safety.

153. As a result of Defendant PBCDS's fallure to exercise. reasonable degree of care

over Plaintiff D.C. in their fallure to adequately supervise PBCDS students, train their employees,

enforce their own policies, and protect PlaintiffD.C., Defendant Pine Bush Central School District

acted in a negligent manner, foreseeably cansing injury to Plaintiff D.C.. which includes physical,

emotional aod psychological injury resulting in damages in an amount in the amount of twenty five

million ($25,000,000) dollars.
Bcde&1OD «.aI, v. PBCSD Verified ~

Page 34 of 53

Marl:h27,2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 35 of 53

AS AND FOR A ELEVENTH CLAIM (against PBCSD in violation of Plaintiff A.R.'s rights
under Title VI of the Civil Rights Act of 1964)

154. Plaintiff AR. repeats and realleges paragraphs 1 through 153 as if fully stated

herein.

155. Plaintiff AR. has a protected right to be free from discrimination andharassment

under Title VI of the Civil Rights Act of 1964.

156. While a studeot in the Pine Bush Central School District, Plaintiff A.R" was

subjected to daily discrimination, harassment, and bullying from other students at his school due to

him being Jewish.

157. . Defendant PBCSD had actual notice of the racial and religious hostility occurring at

the Pine Bush Central School District. PBCSD failed to take remedial measures to prevent further discrimination, harassment, and bullying of Plaintiff A.R. and other Jewish students allowing the

behavior to continue and become permissible and acceptable throughout the school district.

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158. Defendant PBCSD acknowledged and was aware of this severe, pervasive, and disturbing behavior towards Plaintiff AR., and acted with deliberate indiffereoce towards this

situation which resulted in physical and mental hann to the Plaintiff.

159. The environment was permeated with racial and religious hostility of such severity

or pervasiveness so as to significantlyalterthe conditions ofPlaintitrseducational environmentand

thereby deny them equa1 access to the school's resources and opportunities.

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Eocleston et.al v. PBCSD V&:rifIed Complaint

Page 35 of 53

Much27.2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 36 of 53

160. As a result of Defendant, PBCSD's breach of Plaintiff A.R.'s rights under Title VI

of the Civil Rights Act of 1964, Plaintiff has suffered physical, emotional and psychological injuries

and has been damaged in an amount to be detennined at trial, but in no event less than twenty five

million dollars ($25,000,000.00).

AS AND FOR ATWEUTH CLAIM
(against PBCSD in violation of Plaintiff A.R.'s righis under 42 U.S.C. §1983 a violation of Substantive Due Process)

I

161. Plaintiff A.R. repeats and realleges paragraphs 1 through 160 as if fully

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stated herein. 162. Defendant PBCSD violated PlaintiffA.R.'s substantive due process rights to equal

I

protection under the 14th Amendment of the United States Constitution. PBCSD allowed

discriminatory practices and anti- Semitic behaviors and actions to become institutionalized which

penalized Plaintiff A.R. for being of the Jewish religion, and subjected the Plaintiff A.R. to a

constant barrage or hm:assment and bullying for being of the Jewish faith without any type of

intervention or remediation.

163. The Defendant's failure to take action to prevent the disctimination, bullying and

harassment created or increased the danger to which the Plaintiff A.R. was exposed by their utter

disregard and deliberate indifference toward the discipline students for their conduct. The school

district's inaction to prevent further harassment and bullyingofJewisb students gives rise to apolicy

that tolerate's discriminatory behavior and student on student harassment in violation of their own

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rnIes and procedures.

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Eccleston et.al. v. PBCSD Verified Complaint

Page 36 of 53

March 1:1, 2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 37 of 53

164. The discriminating. harassing. and bullying behavior ofthe PBCSD students, and the

deliberate indifference to the behavior by the Defendant. rose to the level of egregious conduct so

brutal and offensive to human dignity as to shock the conscience.

165. That by reason of the aforesaid occurrence, and Defendant's negligence and other

conduct as alleged herein Plaintiffhas been caused to suffer physical. emotional. and psychological

injury.

166. As a result of Defendant, PBeSn's violation of Plaintiff A.R.· s substantive due

process rights under the Equal Protection Clause of the Fourteenth Amendment. Plaintiff has

suffered physiCal. emotional. and psychological injury and has been damaged in an amount to be

determined at trial. but in no event less than twenty five million dollars ($25.000.000.00).
AS AND FOR A THIRTEENTH CLAIM
(against PBCDS for Negligent Infliction of Emotional Distress)

167. Plaintiff A.R. repeats and realleges paragraphs 1through 166 as iffully stated herein.

168. PBCDS has a duty to adequately supervise the students in their charge and to exercise

care as loco parentis over the students in their custody and control.

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169. PBCSD had actual notice and had sufficient specific knowledge of the dangerous

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proclivities and anti-Semitic threats by students against Plaintiff A.R.

170. PBCSD lack of interest or disregard to take remedial action to stop the anti-Sentitic

threats against PlaintiffA.R. created an environment which unreasonably endangers Plaintiff A.R.'s

physical safety and caused him to fear for his physical safety.

171. As a result of Defendant PBCDS's failure to exercise a reasonable degree of care

over Plaintiff A.R. in their failure to adequately supervise PBCDS students. train their employees.

enforce their own policies. and protect Plaintiff A.R. Defendant Pine Bush Central School District

EccJcstm et.aI. v. PBCSD Verified Complaint

Page 37 of 53

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March 27, 2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 38 of 53

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acted in a negligent manner, foreseeably causing injury to Plaintiff A.R., which includes physical, emotional and psychological injury resulting in damages in an amount in the amount of twenty five million ($25,000,000) dollars.
AS AND FOR A FOURTEENTH CLAIM (against PBCSD in violation of Plaintiff D.R.'s rights
under Title VI of the Civil Rights Act of 1964) 172. PlaintiffD.R. repeats andreaIleges paragraphs I through 171 as if fully stated herein. 173. Plaintiff D.R. has a protected right to be free from discrimination and harassment under Title VI of the Civil Rights Act of 1964. 174. While a student in the Pine Bush Central School District, Plaintiff n.R., was subjected to daily discrimination, harassment, and bullying from other students at his school due to him being Jewish. 175. Defendant PBCSD had actual notice of the racial and religious hostility occurring at Crispell Middle School and the Pine Bush Central School District. PBCSD failed to take remedial measures to prevent further discrimination, harassment. and bullying of Plaintiff D.R. and other Jewish students allowing the behavior to continue and become permissible and acceptable throughout the school district. 176. Defendant PBCSD acknowledged and was aware of this severe, pervasive, and distuxbing behavior towards Plaintiff D.R., and acted with deliberate indifference towards this situation which resulted in physical and menial harm to the Plaintiff.

Ecclestou et.a!. v. PBCSD Verified Complaint

Page 38 of 53

March 27. 2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 39 of 53

177. The environment was penneated with racial and religious hostility of such severity

or pervasiveness so as to significantly alter the conditions ofPlaintiff's educational environment and

thereby deny them equal access to the school's resources and opportunities.

178. As a result of Defendant, PBCSD's breach of Plaintiff D.R's rights under

Title VI of the Civil Rights Act of 1964, Plaintiffhas suffered physical, emotional and psychological

damages in an amount to be determined at trial. rutin no event less than twenty five million dollars

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($25,000,000.00).

AS AND FOR A FWEENTH CLAIM

(against PBCSD in violation of Plaintiff D.R.'s rights

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under 42 U.S.C. §1983 a violation of Substantive Due Process)

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179. Plaintiff D.R. repeats and realleges paragraphs 1 through 178 as if fully stated herein.

180. Defendant PBCSD violated PlaintiffD.R.'s substantive due process rights to

equal protection under the 14· Amendment of the United States Constitution. PBCSD allowed

I

discriminatory practices and anti- Semitic behaviors and actions to become institutionalized which

j

peualized Plaintiff D.R. for being of the Jewish religion. and subjected the Plaintiff D.R. to a

constant barrage or harassment and bullying for being of the Jewish faith without any type of

intervention or remediation.

181. TbeDefendant's failure to take action to prevent the discrimination and harassment

created or increased the danger to which the PlaintiffD.R was exposed by their utter disregard and

deliberate indifference towards the discipline students for their conduct. Tbe school district's

inaction to prevent further harassment and bullying towards Jewish students gives rise w a policy

EcdcItonet.aL Y. PBCSD Verifit.d(;oqllaint

Page 39 of 53

Mareb 21, 2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 40 of 53

that tolerates and condones discriminatory behavior and student on student harassment in violation

of their own rules and procedures.

182. The discriminating. harassing, and bullying behaviorofthe PBCSD students. and the

deliberate indifference to the behavior by the Defendant, rose to the level of egregious conduct so

brutal and offensive to human dignity as to shock the conscience.

183. That by reason of the aforesaid occurrence, and Defendant's negligence and other

I

conduct as alleged herein Plaintiff has been caused to suffer psychological. mental, and emotional

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injury.

1

184. As a result of Defendant, PBeSD's violation ofD.R. 's substantive due

process rights under the Equal Protection Clause of the Fourteenth Amendment, Plaintiff has

suffered physical, emotional and psychological damages and has been damaged in an amount to he

detennined .t trial, but in no event less than twenty five million dollars ($25,000,000.00).

AS AND FOR A SIXTEENTH CLAIM
(against PBCDS for Negligent Infliction of Emotional Distress)

184. Plaintiff D.R. repeats and realIeges paragraphs 1 through 184 as if fully stared herein.

185. PBCDS has a duty to adequately supervise the students in tbeircharge and to exercise

care as loco parentis over the students in their custody and controL.

186. PBCSD had actual notice and had sufficient specific knowledge of the dangerous

proclivities and anti-Semitic threats by students against Plaintiff D.R.

187. PBCSD lack of interest or disregard to take remedial action to stop the anti·Semitic

threats againstPlaintiffD.R. creared anenvironment which unreasonablyendangets Plaintiff D.R.' s

physical safety and caused biro to fear for his physical safety.

Eccleston et.aL v. PBCSD Verified CompIaiDt

Page 40 of 53

March 27, :rol2

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 41 of 53

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188. As a result of Defendant PBCDS's failure to exercise a reasonable degree of care

over PlaintiffD.R. in their failure to adequately supervise PBCDS students. train their employees.

enforce their own policies, and protect PlaintiffD.R., Defeodant Pine Bush Central School District

acted in a negligent manner, foreseeably causing injury to Plaintiff D.R., which includes physical,

emotional and psychological injury resulting in damages in an amount in the amount of twenty five

million ($25,000,000) dollaIS.

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ATTORNEYS FEES
189. It is respectfully requested that Plaintiffs are entitled to an award of attorneys'

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fees, pursuant to 42 U.S.c. 1988 (b); 42 U.S.C. 1983.

WHEREFORE, Plaintiff demands

A. On the FIRST Claim, Plaintiff T.E. demands the following relief against

Defendant: frl\een inillion ($25,000,000.00) dollars, against the Defendant for a violation of Title

VI of the Civil Rights Act of 1964; and in favor of Plaintiff T.E. against the Defendant for

Punitive Damages in the amount of twenty five million ($25,000,000.00) dollars; and

B. On the SECOND claim, Plaintiff T.E. demands the following relief against

Defendant: twenty five million ($25,000,000.00) dollars each, against the Defendant for a

violation of Plaintiff T.E.'s substantive due process rights; and in favor of plaintiff T.E. against

the Defendant for Punitive Damages in the amount of twenty five million ($25,000,000.00)

dollars; and

Ecclesttmet.al v. PBCSO VerificdComplaint

Page 41 of 53

March 27. 2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 42 of 53

C. On the THIRD claim, Plaintiff T.E. demands the following relief against

Defendant: twenty five million ($25,000,000.00) dollars each, against the Defendant for a breach

of duty to protect; and in favor of Plaintiff T.E. against the Defendant for Punitive Damages in

the amount of twenty five million ($25,000,000.00) dollars; and

D. On the FOURTH claim, PlaintiffT.E. demands the following relief against

Defendant: twenty five million ($25,000,000.00) dollars each, against the Defendant for a

negligent infliction of emotional distress; and in favor of PlaintiffT.E. against the Defendant for

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Punitive Damages in the amount of twenty five miliion ($25,000,000.00) dollars; and

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E. On the FIFfH Clabn, Plaintiff O.C. demands the following relief against

Defendant: twenty five million ($25,000,000.00) dollars, against the Defendant for a violation of

Title VI of the Civil Rigbts Act of 1964; and in favor of Plaintiff O.C. against each individual

Defendant for Punitive Damages in the amount of twenty five million ($25,000,000.00) dollars;

and

F. On the SIXTH Claim, Plaintiff O.C, demands the following relief against

Defendant: twenty five million ($25,000,000.00) doll"" each, against the Defendant for a

violation of Plaintiff D.C.·s substantive due process rights; and in favor of Plaintiff D.C. against

the Defendant for Punitive Damages in the amount of twenty five million ($25,000,000.00)

doUars;and

G. On the SEVENTH claim, Plaintiff O.C. demands the following relief against

Defendant: twenty five million ($25,000,000.00) dollars each, against the Defendant for a

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negligent inflictinn of emotional dis1reSS; and in favor of Plaintiff O.c. against the Defendant for Punitive Damages in the amount of twenty five million ($25,000,000.00) dollars; and

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Ecck.atoo ct.aL iI. PBCSD Verified Complaint

Page 42 of 53

MMcla '1:1, 2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 43 of 53

H. On the EIGHTH Claim, Plaintiff D.C. demands the folloWing relief against

Defendant: twenty five million ($25,000,000.00) dollars, against the Defendant for a violation of

Title VI of the Civil Rights Act of 1964; and in favor of Plaintiff D.C. against each individual

Defendant for Punitive Damages in the amount of twenty five million ($25,000,000.00) dollars;

and

I. On the N!NTH Claim, Plaintiff D.C. demands the following relief against

j

Defendant twenty five million ($25,000,000.00) dollars each, against the Defendant for a

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violation of Plaintiff D.C.·s substantive due process rights; and in favor of Plaintiff D.C. against the Defendant for Punitive Damages in the amount of twenty five million ($25,000,000.00)

dollars; and

1. On the TENTH claim, Plaintiff D.C. demands the following relief against

Defendant twenty five million ($25,000,000.00) dollars each, against the Defendant for a

negligent infliction of emotional distress; and in favor of Plaintiff D.C. against the Defendant for

Punitive Damages in the amount of twenty five million ($25,000,000.00) dollars; and

K. On the ELEVENTH Claim, Plaintiff A.R. demands the folloWing relief against

Defendant: twenty five million ($25,000,000.00) dollars, against the Defendant for a violation of

Title VI of the Civil Rights Act of 1964; and in favor of Plaintiff A.R. against each individual

Defendant for Punitive Daroages in the amount of twenty five million ($25,000,000.00) dollars;

and

L. On the TWELFTH Claim, plaintiff A.R. demands the following relief against

Defendant: twenty five million ($25,000,000.00) dollars each, against the Defendant for a

violation of Plaintiff A.R.·s substantive due process rights; and in favor of Plaintiff A.R. against

Ecek:atooc:t.aL v. POCSD Vtrified.CompIaint

Page 43 of 53

Mareh27,2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 44 of 53

the Defendant for Punitive Damages in the amonnt of twenty five million ($25,000,000.00)

dollars; and

M. On the THIRTEENTH claim, Plaintiff A.R. demands the following relief agains

Defendant: twenty five million ($25,000,000.00) dollars eaeh, against the Defendant for a

negligent infliction of emotional distress; and in favor of Plaintiff A.R. against the Defendant for

Punitive Damages in the amonnt of twenty five million ($25,000,000.00) dollars; and

N. On the FOURTEENTH Claim, Plaintiff D.R. demands the following relief agairist

Defendant: twenty five million (525,000,000.00) dollars, against the Defendant for a violation of

Title VI of the Civil Rights Act of 1964; and in favor of Plaintiff D.R. against eaeh individual

Defendant for Punitive Damages in the amount of twenty five million ($25,000,000.00) dollars;

and
o.

On the F1FI"EENTH Claim, PlaintiffD.R. demands the following relief against

Defendant: twenty five million ($25,000,000.00) dollars each, against the Defendant for a violation of Plaintiff D.R.·s substantive due process rights; and in favor of Plaintiff n.R. against

the Defendant for Punitive Damages in the amount of twenty five million ($25,000,000.00)

dollars; and

Ecc:lestQn et.a!. v. PBCSD Vaific4 Complaint

Page 44 of 53

March 27. 2012

Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 45 of 53

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P. On tile SIXTEENTH claim, Plaintiff O. 11.. demands the following relief
against Defendant: twenty five million ($25,000.000.00) dollars each, against the Defendant for a
negligent iDJJiction of emotional distress; and in favor of Plaintiff 0" fZ-. against the
Defendant for Punitive Damages in the amount oftwenty live million ($25,000,000.00) dollar.!; and
Q. Attorneys fees pursuant to 42 U.S.C. 1988(b); 42 U.S.C. 1983; and R. Togother with such other and further reliefthat this Court may deena just and proper.

Dated: Mareh 27, 2012 Chester, New York

M~[:w4
By:\~ Mj"·""ch"'ae-=I-=D"".Meth"'::-"".-m-m-;94"'S"'9""'<"---
MElli LAW OFFICES, P.C. Attorneyfor Plalntijft 10 Moffirtt Lane, Suite Two Cheeter, NY 1091S (845) 469· 9529 (845) 469 • 9989 Fax michael@methlaw.cont

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VERIFICATION

STATEOFNEWYORK )
: 88.:
COUNTY OF ORANGE )

Sherri Eccleston. being duly sworn, says: I am """ oftho Pl8intiffs on behalformy daughter

tho,. - :2--. 5 =-- intho above montionedmatter. I haveread 1I1eforegoing complaint andknow its conteDts; tho same
is lrue mmy ownknowicdg", except as to tho matters themin stated to be alleged on infotmation and

belief, and as to

I believe them

Sworn to befure me this
27" day of March, 2012
& No lie~

, Sherri Eceleston

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VERlFICAnON

STATE OF NEW YORK ) : Ss.:
COUNlY OF ORANGE )
T- , ~. being duly sworn, says: I am one ofthe Plaintiffs in the above mentioned
matter. I have read the foregoing complaint and know its contents; th~ same is true to my own knowledge, except as to the lllIltter. therein stated to be alleged on information and belief, and as to thnse matters I believe them to be true.

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Swom to before me this

27'" dsy ofMaICb, 2012

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Ecclcetoa ot.d. v. PBCSo veri1bl CompJaiaI:

Page 47 of 53

Mfth27,2012

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 48 of 53
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VERIFICATION
STArn OF NEW YORK ) : SS.:
COUNTY OF ORANGE ) David Cohen, being duly sworn, says: Iamoneofthe Plointlffs onbehalfofmy daughteraod
son in the above mentioned matter. I have read the foregoing cOmplaint and know its contents; tile same is true to my own knowledge, except as to the matters therein stated to be alleged on
infotmation and belief, aod as to those matteJ:s 1believe them to be truo.
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Sworn to before me this 27" day ofMatch, 2012

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Page 48 of 53

March21.201l

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 49 of 53
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VERlFICATION
STArn OF NEW YORK )
: ss.: COUNTY 0]1 ORANGE )
." D. C. being duly swom, says: I am one of the plaintiffs in the above mentioned
matter. I bave read the foregodog complaint and know its contents; the same is true to my own knowledge, except as to themattexs therein stated to be alleged on information and helief; and as to those matters I believe them to be true.
Sworn to before me this
27" dsyofMarch. 2012

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Etcltstoa etA y. PBCSO VIrifiod Compillial

Page 49 of S3

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 50 of 53
...
VERIFICATION
STATEOF.NEWYORK )
: 8S.:
COUNTY OF ORANGE . )
D!:'~ being duly swom, says: I am one althe Plaintiffs in the abo""meotioned
matter. I have read !:he foregoing complaint and. know its contents; the same is true to my own
knowledge, except as to the matters 1herein stated to b. alleged on infonnation and belief, and as to
those matters I believe thom to be 1rUe,
Sworn to before me this 27'" day ofMarob, 2012

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VERIFICATION

STAlE OF NEW YORK ) : 85.:
COUNTY OF ORANGE )

Jerrold Ro_ being duly swom, says: I am one ofthe Plaintifli; on bebalfof my·two .ODS

in the above mentioned matter. I haVe read the foregoing complaint and know its content.; the same

is true to myoW!! knowledge, exceptas to the matter.lhctcin

0 be alleged on infoIllllllion and

belief, and as to tlmBe matters I believe them to b. true.

Swom to befure me this
27" dey ofMarch, 2012
_ ~d'>.....
.....- ." HOTARYI\IIIi.£-8TA1!OFN!WYtItIC OIWfGE COUNTY . MY CCII.tISSIlNEXP1RE8 oe/21l2tJl

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EooIas1tm cal. Y. PBCSD Vcri4edComplllnt

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Case 7:12-cv-02303-KMK Document 1 Filed 03/28/12 Page 52 of 53

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 Case 7:12-cv-02303-KMK Document 25 Filed 01/07/13 Page 1 of 50

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

T.E., by her next friend and parent, SHERRI ECCLESTON; O.C. and D.C., by their next friend and parent, DAVID COHEN; A.R. and D.R., by their next friend and parent, JERROLD ROSEN,

Plaintiffs,

v.

No. 7:12-cv-2303-KMK-PED

PINE BUSH CENTRAL SCHOOL DISTRICT; PINE BUSH CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION; PHILIP G. STEINBERG, Superintendent of Pine Bush Central School District, in his official and individual capacities; JOHN BOYLE, Principal of Crispell Middle School, in his official capacity; ERIC WINTER, Principal of Pine Bush Elementary School and former Assistant Principal of Crispell Middle School, in his individual capacity; STEVE FISCH, former Principal of Pine Bush Elementary School, in his individual capacity; ROBERT PETERS, former Assistant Principal of Crispell Middle School, in his individual capacity; and AARON HOPMAYER, Principal of Pine Bush High School, in his official capacity,

FIRST AMENDED COMPLAINT JURY DEMAND

Defendants.

Plaintiffs T.E., by her next friend and parent, Sherri Eccleston; O.C. and D.C., by their

next friend and parent, David Cohen; and A.R. and D.R., by their next friend and parent, Jerrold

Rosen (collectively “Plaintiffs”), state the following as their First Amended Complaint against

Defendants Pine Bush Central School District (the “School District” or “District”), Pine Bush

Central School District Board of Education (the “School Board” or “Board), Philip G. Steinberg,

Case 7:12-cv-02303-KMK Document 25 Filed 01/07/13 Page 2 of 50
John Boyle, Eric Winter, Steve Fisch, Robert Peters, and Aaron Hopmayer (collectively “Defendants”):
PRELIMINARY STATEMENT 1. This is a civil rights case brought by five current and former students of Defendant Pine Bush Central School District in Pine Bush, New York. All five students are Jewish and have suffered anti-Semitic discrimination, harassment, and bullying by other students for years, but have been unable to get school officials to take appropriate action to protect them. Plaintiffs bring this action to vindicate their constitutional and statutory rights to equal access to educational opportunities, rights that Defendants have violated and will continue to violate absent relief from this Court. 2. The anti-Semitic discrimination and harassment within the School District is severe and pervasive, has affected Jewish students from elementary to high school, and has caused physical and psychological injuries. Plaintiffs have experienced this discrimination and harassment in the form of insults, name-calling, intimidation, threats, and physical attacks on the basis of national origin (Jewish ancestry) and religion. 3. Each Plaintiff has suffered severe and pervasive verbal harassment on the basis of his/her Jewish ancestry and religion. Plaintiffs have been subjected to anti-Semitic slurs from other students, including “dirty, disgusting Jew,” “stupid Jew,” “Christ killer,” “Jesus hater,” “Kike,” “Ashes,” and “Crispy”—the latter two slurs being references to burning Jews during the Holocaust. 4. In addition to vicious name-calling, Plaintiffs were subjected to rampant antiSemitic graffiti, images, and insults. For instance, students drew or engraved swastikas on books, notebooks, bathroom walls, hallway walls, desks, bleachers and playground equipment, sometimes with names of Plaintiffs written inside. The swastikas and other anti-Semitic graffiti
2

Case 7:12-cv-02303-KMK Document 25 Filed 01/07/13 Page 3 of 50
throughout the schools often remained for weeks or months, despite repeated complaints by Plaintiffs and/or their parents to have the graffiti removed. Students also drew and made images of Hasidic Jews from pipe cleaners, at which they tossed pennies. Others made swastikas from pipe cleaners. Students performed “Hitler salutes,” discussed celebrating Hitler’s birthday, and made anti-Semitic “jokes” about the Holocaust, including the following: “What is the difference between a Jew and a pizza? One doesn’t scream as it gets put in the oven.”
5. The discrimination and harassment suffered by Plaintiffs in the School District has also included intimidation and, in some instances, physical attacks on the basis of their Jewish ancestry and religion. For instance, students threatened to “burn” some Plaintiffs and to “stab [one Plaintiff] with a menorah and sink her with a cross.” Other students threatened some Plaintiffs during class discussions about the Holocaust by mock-shooting Plaintiffs with their hands pointed like guns. The physical attacks against Jewish students included a swastika drawn on a student’s face against her will, the severe beating of one Plaintiff with a hockey stick, and repeated slapping of another Plaintiff in the head. Students also threw coins at Plaintiffs, sometimes on a regular basis, and one Plaintiff had to fight off two students who attempted to shove coins in her mouth.
6. These acts occurred on school grounds, during school-sponsored outings, on school buses, and during school hours. Plaintiffs and/or their parents reported most of these incidents of harassment to school officials, including teachers, guidance counselors, lunchroom monitors, assistant principals, principals, and the School District Superintendent. Some of these incidents occurred in plain view of school officials.
7. The anti-Semitic discrimination and harassment was a relentless and inescapable aspect of Plaintiffs’ school life. Each of the five Plaintiffs has been psychologically traumatized
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Case 7:12-cv-02303-KMK Document 25 Filed 01/07/13 Page 4 of 50
and some have suffered physical harm. One is now being home-schooled, another was taken out of the School District for nearly a year to help him recover from the psychological trauma, one is considering the possibility of transferring to a school outside the District, and the other two are still attending schools within the District. The harassment caused some Plaintiffs’ grades to drop and led Plaintiffs to stay home from school at times to avoid the constant harassment. The harassment has also caused some Plaintiffs to withdraw from friendships, school activities, and school sports.
8. Despite knowledge of the severe and pervasive anti-Semitic discrimination and harassment that Plaintiffs were suffering throughout the District, Defendants’ response to the abuse was grossly inadequate. Contrary to their obligations as school officials entrusted with the safety and education of all students, the response of District administrators and school employees was to ignore, minimize or dismiss the anti-Semitic harassment. In some instances, action taken by school officials exacerbated the harassment. As a result, the harassment persisted across grade levels, academic years, and schools within the District.
9. Defendants have acted with deliberate indifference to the rampant anti-Semitic discrimination and harassment endured by Plaintiffs. Their custom, policy or practice of taking little or no action to address the pervasive anti-Semitic harassment has substantially contributed to the anti-Semitic climate in District schools and has exacerbated the anti-Semitic harassment of Plaintiffs and other Jewish children. Defendants have also failed to adequately train school staff to address and prevent that harassment, to educate students about District policies—including the Student Code of Conduct—that prohibit this kind of harassment, and to enforce the District’s Student Code of Conduct.
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10. Plaintiffs seek a declaratory judgment, permanent injunctive relief, and nominal, compensatory, and punitive damages to remedy violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d et seq., and sections 40-c and 40-d of the New York Civil Rights Law. Plaintiffs bring their claims pursuant to 42 U.S.C. § 1983, Title VI, and the New York Civil Rights Law.
JURISDICTION AND VENUE 11. This Court has jurisdiction over Plaintiffs’ 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 Plaintiffs’ claims under 28 U.S.C. §§ 2201-2202 because Plaintiffs seek a declaration of their civil rights. This Court has supplemental 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. 12. Venue is proper in this Court under 28 U.S.C. § 1391(b) because one or more of the Defendants reside within this Court’s judicial district and a substantial part of the events or omissions giving rise to the claims occurred within the judicial district.
PARTIES Plaintiffs
13. Plaintiff T.E. is a 14-year-old Jewish female and sues here by and through her next friend, parent, and guardian, SHERRI ECCLESTON. She attended two schools within the District: Pine Bush Elementary School, from approximately September 2005 through June 2009, and Crispell Middle School, from approximately September 2009 to January 25, 2012. T.E. is currently in ninth grade and is being home-schooled. T.E. is a natural person, a current resident of Ulster County, and a citizen of the State of New York.
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Case 7:12-cv-02303-KMK Document 25 Filed 01/07/13 Page 6 of 50
14. O.C. is a 14-year-old Jewish female and sues here by and through her next friend, parent, and guardian, DAVID COHEN. She attended Crispell Middle School from approximately September 2009 through June 2012. She is currently in ninth grade at Pine Bush High School and has been there since approximately September 2012. O.C. is a natural person, a current resident of Ulster County, and a citizen of the State of New York.
15. D.C. is a 17-year-old Jewish male and sues here by and through his next friend, parent, and guardian, DAVID COHEN. He attended Crispell Middle School from approximately September 2007 through June 2010. He is currently in eleventh grade at Pine Bush High School and has been there since approximately September 2010. D.C. is a natural person, a current resident of Ulster County, and a citizen of the State of New York.
16. A.R. is a 17-year-old Jewish male and sues here by and through his next friend, parent, and guardian, JERROLD ROSEN. He attended Crispell Middle School from approximately September 2006 through June 2009. He is currently in twelfth grade at Pine Bush High School and has been there since approximately March 2010. A.R. is a natural person, a current resident of Orange County, and a citizen of the State of New York.
17. D.R. is a 15-year-old Jewish male and sues here by and through his next friend, parent, and guardian, JERROLD ROSEN. He attended Crispell Middle School from approximately September 2008 through June 2011. He is currently in tenth grade at Pine Bush High School and has been there since approximately September 2011. D.R. is a natural person, a current resident of Orange County, and a citizen of the State of New York. Defendants
18. Defendant PINE BUSH CENTRAL SCHOOL DISTRICT, an education corporation and association existing pursuant to the New York Education Law, is an independent public school district covering seven townships located in portions of Ulster, Sullivan, and
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Case 7:12-cv-02303-KMK Document 25 Filed 01/07/13 Page 7 of 50
Orange Counties, 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 component schools are recipients of federal financial assistance. Pine Bush Elementary School, Crispell Middle School, and Pine Bush High School are schools in the District.
19. Defendant PINE BUSH CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION is a board of education within the meaning of N.Y. Educ. Law § 1804 and manages the School District. The School Board is a “person” within the meaning of 42 U.S.C. § 1983. Upon information and belief, the Board receives federal financial assistance.
20. Defendant PHILIP G. STEINBERG (“Superintendent Steinberg” or “Mr. Steinberg”), sued in both his official and individual capacities, is the current Superintendent of the School District. Upon information and belief, he has held this position since August 2008. As Superintendent and the District’s chief executive officer, he holds final policymaking authority for the School District with respect to day-to-day enforcement of the District’s Student Code of Conduct, Students’ Bill of Rights, and anti-bullying policies within the School District. As Superintendent, he has the ability and authority to take corrective action on behalf of the School District to stop discrimination and harassment within the District and to discipline perpetrators of such discrimination and harassment. Mr. Steinberg is a natural person and, upon information and belief, resides in the State of New York.
21. Defendant JOHN BOYLE (“Principal Boyle” or “Mr. Boyle”), sued in his official capacity, is Principal of Crispell Middle School. Upon information and belief, he has held this position since at least September 2006. As Principal, Mr. Boyle has final policy making authority with respect to the day-to-day enforcement of the District’s Student Code of Conduct, Students’ Bill of Rights, and anti-bullying policies within Crispell Middle School. As Principal,
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Case 7:12-cv-02303-KMK Document 25 Filed 01/07/13 Page 8 of 50
Mr. Boyle has the ability and authority to take corrective action on behalf of the School District to stop discrimination and harassment within Crispell Middle School and to discipline perpetrators of such discrimination and harassment. Mr. Boyle is a natural person and, upon information and belief, resides in the State of New York.
22. Defendant ERIC WINTER (“Assistant Principal Winter” or “Mr. Winter”), sued in his individual capacity, is Principal of Pine Bush Elementary School. Upon information and belief, he has held this position since July 2011. Previously, Mr. Winter was Assistant Principal of Crispell Middle School and, upon information and belief, held that position from approximately September 2010 through June 2011. As Assistant Principal of Crispell Middle School, Mr. Winter had the ability and authority to take corrective action on behalf of the School District to stop discrimination and harassment at Crispell Middle School and to discipline perpetrators of such discrimination and harassment. Mr. Winter is a natural person and, upon information and belief, resides in the State of New York.
23. Defendant STEVE FISCH (“Principal Fisch” or “Mr. Fisch”), sued in his individual capacity, was Principal of Pine Bush Elementary School. Upon information and belief, he held that position from approximately September 1991 until his retirement from the School District in July 2011. As Principal, Mr. Fisch had final policy making authority with respect to the day-to-day enforcement of the District’s Student Code of Conduct, Students’ Bill of Rights, and anti-bullying policies within Pine Bush Elementary School. As Principal, Mr. Fisch had the ability and authority to take corrective action on behalf of the School District to stop discrimination and harassment within Pine Bush Elementary School and to discipline perpetrators of such discrimination and harassment. Mr. Fisch is a natural person and, upon information and belief, resides in the State of New York.
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Case 7:12-cv-02303-KMK Document 25 Filed 01/07/13 Page 9 of 50
24. Defendant ROBERT PETERS (“Assistant Principal Peters” or “Mr. Peters”), sued in his individual capacity, was Principal of Crispell Middle School. Upon information and belief, he held that position from at least September 2006 until September 2010. As Assistant Principal, Mr. Peters had the ability and authority to take corrective action on behalf of the School District to stop discrimination and harassment at Crispell Middle School and to discipline perpetrators of such discrimination and harassment. Mr. Peters is a natural person and, upon information and belief, resides in the State of New York.
25. Defendant AARON HOPMAYER (“Principal Hopmayer” or “Mr. Hopmayer”), sued in his official capacity, is Principal of Pine Bush High School. He has held this position since October 2007. As principal, Mr. Hopmayer has final policy making authority with respect to the day-to-day enforcement of the District Student Code of Conduct, the Students’ Bill of Rights, and anti-bullying policies within the School District. As Principal, Mr. Hopmayer has the ability and authority to take corrective action on behalf of the School district to stop discrimination and harassment within Pine Bush High School and to discipline perpetrators of such discrimination and harassment. Mr. Hopmayer is a natural person and, upon information and belief, resides in the State of New York.
STATEMENT OF FACTS Plaintiff T.E.
26. From approximately September 2005 to January 25, 2012, T.E. was a student in the School District. T.E. is a Jewish female. From approximately September 2005 through June 2009—from second through fifth grade—T.E. attended Pine Bush Elementary School (“PBES”).
27. The anti-Semitic discrimination and harassment against T.E. began in fifth grade, while she was a student at PBES. T.E. suffered discrimination and harassment in the form of
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Case 7:12-cv-02303-KMK Document 25 Filed 01/07/13 Page 10 of 50
physical assaults, intimidation, threats, insults, and name-calling on the basis of her national origin (Jewish ancestry) and religion.
28. Early in T.E.’s fifth grade year, a school field trip to the Statue of Liberty, Ellis Island, and the Liberty Science Museum was scheduled for October 8, 2008, and the children were to return after sundown, when the Jewish holiday of Yom Kippur began. This meant that T.E. could not attend the field trip. When T.E.’s mother, Sherri Eccleston, learned of this conflict with the Jewish holiday, she spoke with PBES Principal Fisch to voice her concerns and to see if T.E. could attend the trip on another date. The school trip was not offered on other dates and T.E. was very upset about having to miss a fun field trip that her friends were attending.
29. Missing that trip resulted in further consequences for T.E. For approximately one week after the field trip, many school lessons and assignments were based on that trip. Because T.E. had always been an exemplary student, the fact that she could not actively participate in these lessons left her feeling distraught. Although T.E. informed her teacher that she was unable to attend the field trip because she is Jewish, the teacher did not provide her with any additional materials to review that would have allowed T.E. to complete her assignments adequately.
30. Between October 10, 2008, and June 1, 2009—while T.E. was still in fifth grade— T.E. saw two classmates, K.L. and N.B., draw swastikas in their planners during homeroom. T.E. was appalled by this and told her mother about it when she got home from school. T.E.’s mother, Ms. Eccleston, was especially concerned because one of the students drawing swastikas was the son of the school’s psychologist. Ms. Eccleston met with PBES Principal Fisch the next day to report the incident. Mr. Fisch was indifferent and did not view the incident as cause for concern. He took no action either to discipline the students or to make sure they understood why swastikas are particularly offensive to Jewish students.
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31. Mr. Fisch’s failure to take action gave rise to further harassment and discrimination directed at T.E. A month after the incident, while T.E. was riding the school bus home, K.L., one of the students who had drawn a swastika on his planner, looked T.E. in the eyes and called her “a Jew” in a demeaning tone. This scared T.E. When T.E. exited the bus, K.L. gave T.E. and Ms. Eccleston the middle finger, which insulted and upset both of them. Ms. Eccleston reported the incident to the school bus driver, Art Champion, and the school bus company. Neither the bus company nor any PBES or District employee took any action.
32. In the spring of T.E.’s fifth grade year, sometime between March 21, 2009, and May 1, 2009, T.E. saw a swastika engraved on the slide in PBES’s schoolyard. This caused T.E. great emotional distress. The next day, Ms. Eccleston reported this to Principal Fisch and reminded him of the other anti-Semitic incidents that T.E. had suffered. Ms. Eccleston also told School District Superintendent Steinberg about the swastika engraved on the schoolyard slide and all of the other anti-Semitism T.E. had witnessed or endured at PBES. Neither Principal Fisch nor Superintendent Steinberg took appropriate action. In fact, the swastika remained on the slide when T.E. graduated from PBES and was still there over a year after Ms. Eccleston had reported it to Principal Fisch and Superintendent Steinberg.
33. From approximately September 2009 to January 25, 2012—from sixth through part of eighth grade—T.E. attended Crispell Middle School (“CMS”). While at CMS, T.E. experienced severe and pervasive anti-Semitic discrimination and harassment by fellow students in the classroom, the gymnasium, the lunchroom, the schoolyard, and on the school bus.
34. The anti-Semitic environment permeated many aspects of school life at CMS. T.E. saw swastikas drawn and carved on walls of the girls’ bathrooms and stalls, on textbooks, on the playground, on school desks, and in hallways. Although T.E. reported that there was a swastika
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engraved on her music classroom desk, it took the school over two weeks to remove the swastika on her desk.
35. The school bus was a particularly hostile environment, in part because middle and high school students rode together, making younger students vulnerable to harassment by older students. On April 19, 2010, while riding the bus in the sixth grade, T.E. overheard a high school student discussing plans to celebrate Hitler’s birthday the following day. T.E.’s mother, Ms. Eccleston, immediately called Superintendent Steinberg to report the incident, but was unable to reach him. His secretary, however, asked Ms. Eccleston, “How do [the students] even know that [T.E.] is Jewish?” The secretary’s response illustrates the District’s failure to educate and train its employees how to respond to complaints about anti-Semitic discrimination and harassment.
36. Ms. Eccleston then called Assistant Superintendent Deborah Brush. In addition, to informing Ms. Brush that students were planning to celebrate Hitler’s birthday the following day, Ms. Eccleston informed her that the swastika on the slide at PBES was still there, even though she had reported it to Mr. Steinberg and Mr. Fisch approximately a year earlier. Ms. Brush had the swastika removed from the slide, but her attempt to address students’ plans to celebrate Hitler’s birthday only exacerbated the hostile environment on the school bus.
37. T.E. did not attend school the following day, for fear of what students might do to celebrate Hitler’s birthday. But when she returned on April 21, she was singled out for further harassment for reporting the incident to Ms. Brush. When T.E. entered the bus, the bus driver made her sit in the first row. He yelled at T.E. in front of other students and accused her of lying about the planned celebration. When T.E. began to cry and attempted to send her mother a text
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message regarding the incident, the bus driver berated her for crying and attempted to confiscate her cell phone. T.E. was humiliated and afraid.
38. Ms. Eccleston called the bus company to complain about how the bus driver had treated T.E. A representative from the company arranged for Ms. Eccleston to participate in a three-way phone conference with the bus manager and the bus driver. During the conversation, the driver continued to accuse T.E. of being a liar and nothing was resolved. The incident resulted in Ms. Eccleston having to drive T.E. to school whenever possible because T.E. feared for her safety on the bus. Moreover, the incident illustrates how District officials improperly relinquished their responsibility to protect T.E. from harassment to the bus company. The results were disastrous.
39. The bus continued to be an abusive environment for T.E. In seventh grade, on May 25, 2011, a student on the bus pulled up his shirt to show T.E. and other students a drawing of a Hasidic Jew on his stomach. Another student said, “Let’s throw pennies in his mouth.” T.E. was offended and reported the incident to her mother via text message.
40. Ms. Eccleston also reported the incident and all prior incidents of anti-Semitic harassment to Sergeant Eric Meier (“Sgt. Meier”), an officer with the Town of Crawford Police Department (“Crawford P.D.”), who at the time was also a member of the School Board. Based on Sgt. Meier’s suggestion, Ms. Eccleston also reported all prior incidents to School Board Member Lloyd Greer, Jr. (“Mr. Greer”). Neither Sgt. Meier nor Mr. Greer took any remedial action.
41. Less than a week later, on approximately May 31, 2011, a student who had made comments about “White Power” sat next to T.E. on the bus and would not let T.E. out of the seat
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when she asked to move. T.E. reported the incident to Ms. Eccleston via text message, and Ms. Eccleston immediately called CMS Assistant Principal Winter.
42. In response, Mr. Winter called the bus company to relay Ms. Eccleston’s complaint. While students were seated on the bus, a member of the bus company contacted the bus driver over radio transmission to report the complaint. Students seated in the bus’s front seats were in earshot of the radio transmission and heard the entire conversation. T.E.’s classmates began discussing what they heard. The driver shouted out to T.E. to inform her that her mother had called to complain and to move her to another seat. Once again, T.E. was humiliated in front of her classmates. When the bus driver moved T.E. to another seat, a student threatened her to commit a violent act against her and told her that she would get beaten up when she went to the eighth grade. These threats were made in the presence of a school official, but no remedial action was taken.
43. Ms. Eccleston called Assistant Principal Winter to tell him both how the bus company had handled the situation and that a student had threatened T.E., and to ask the school to provide an alternative form of transportation for T.E. Mr. Winter took no action. After that incident, T.E. stopped taking the bus to school as she no longer felt safe riding the bus.
44. The classrooms, lunchroom, and schoolyard at CMS were equally hostile environments, and the District’s deliberate indifference to the rampant anti-Semitic harassment permitted students to find innovative ways to express their anti-Semitism. For instance, in T.E.’s seventh grade math class, D.B. constructed a Hasidic Jew out of pipe cleaners, and another student, C.L. made a swastika out of pipe cleaners in the lunch room. C.L. told T.E. that he was going to give the pipe cleaner to Plaintiff O.C. Mr. Winter witnessed the incident, but his only response was to give C.L. in-school suspension.
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45. Mr. Winter’s insufficient response did not deter the harassment and the antiSemitic abuse continued. In January 2011, during a lesson about the Holocaust in T.E.’s seventh grade English class, C.O. told T.E. that she should be burned. On or about April 11, 2011, T.E.’s classmate S.G. called her “a Jew” in an insulting manner. S.G. also stated that T.E. should be burned, and called her “Crispy” in reference to Nazis burning Jews during the Holocaust. T.E.’s mother reported these threats to Mr. Winter, but he took no action.
46. The school administration’s deliberate indifference to the verbal threats gave rise to other forms of verbal harassment. For example, over the course of the spring semester of T.E.’s seventh grade year, students began using the word “Jew” as an insult and to mock Jewish students. On or about April 27, 2011, T.E. heard her classmate B.B. making fun of Jewish people and on or about April 28, 2011, T.E. overheard a discussion between two non-Jewish students in her math class in which one student, D.B., accused D.C. of not knowing something because he was a Jew. T.E. reported both incidents to Mr. Winter, but Mr. Winter took no action.
47. As a result of the rampant anti-Semitism at CMS, Ms. Eccleston, T.E., O.C. and O.C.’s father, David Cohen, attended a meeting with Superintendent Steinberg, Crawford Police Officer James Johnson, and School Board Member Lloyd Greer, Jr. to discuss the harassment and the possibility of bussing T.E. and O.C. to Circleville Middle School (“Circleville”), another school within the District. Mr. Cohen and Ms. Eccleston wanted their daughters to know that they would have a place to go if they did not feel safe at CMS.
48. During the meeting, Mr. Steinberg promised that he would institute changes within the District, including better communication with his staff to ensure that it was more informed about the incidents of discrimination and harassment. Moreover, Mr. Steinberg stated that he
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would look into bussing T.E. and O.C. to Circleville and that it may be a possibility. Nevertheless, when the situation at CMS did not improve and Mr. Cohen and Ms. Eccleston requested that T.E. and O.C. be bussed to Circleville, Mr. Steinberg denied their request. The incident, once again, illustrates Mr. Steinberg’s failure to take steps to protect T.E. and O.C. from anti-Semitic harassment and discrimination.
49. During eighth grade, T.E. was severely beaten in gym class. Her hand was swollen and severely bruised. On December 12, 2011, classmate D.R. hit T.E. in the hand and ankle with a hockey stick and classmate J.G. lifted her hockey stick and told T.E. that she was going to hit her in the face. The two had previously called T.E. “stupid,” “annoying,” and “retarded” because T.E.’s team was beating them in a hockey game. In response to J.G.’s threat, T.E. threatened to punch J.G. in the “fucking face.” The gym teacher, Ms. Giuliani, heard T.E.’s defense and reprimanded T.E. for what she had said to J.G. She failed to reprimand J.G. or D.R., even after T.E. explained to the teacher that her comment was in response to D.R.’s physical assault and J.G.’s provocations. After Ms. Giuliani reprimanded T.E., J.G. and D.R. continued to physically assault T.E. by pushing her into other students. T.E. and her friend S.W. reported the assaults to their guidance counselor, Michael Callo, but Mr. Callo sent the two students back to class and took no steps to reprimand J.G. or D.R., or to report the harassment to the Principal or Assistant Principal.
50. The day of the incident, Ms. Eccleston took T.E. to an urgent care facility and discovered that T.E.’s thumb was fractured. T.E. was in pain over the weekend, and an ambulance worker told Ms. Eccleston that T.E.’s hand did not look good and that she should have it examined. A doctor’s final diagnosis was that T.E. had fractured her thumb and had
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probably bruised her bone. The doctor ordered that T.E.’s hand be set in a cast and ordered a follow–up visit over the winter break.
51. Ms. Eccleston filed several complaints regarding the physical attack on her daughter. First, on the way to the urgent care facility, she called CMS’s new Assistant Principal, Christopher Mummery (“Mr. Mummery”), to inform him what had occurred. She also followed up with a visit to the school to speak with Mr. Mummery on the Monday following the incident. Ms. Eccleston also filed a complaint with Police Officer John Levison of the Crawford P.D. Officer Levison assured Ms. Eccleston that he would investigate the incident and speak with school officials.
52. The Tuesday after the assault, Mr. Mummery spoke with T.E. and D.R. in his office. Mr. Mummery appeared to question the severity of the injury and asked T.E. why she had not gone to the nurse’s office after the injury. Moreover, despite witnesses who could corroborate T.E.’s version of events, D.R. told Mr. Mummery that it was T.E. who had hit her, yet D.R. had not previously reported to anyone that T.E. had been the one who committed the assault. Further, D.R. had no physical marks. D.R. said that she would not apologize for hitting T.E. and suggested that T.E. had slammed her hand into a locker to frame D.R. Mr. Mummery told T.E. that he would not take any action against D.R. because he believed that both students were at fault.
53. When T.E. returned to eighth grade after winter break, the hostile environment and anti-Semitic harassment and discrimination continued. On or about January 23, 2012, in health class, M.S. told an anti-Semitic joke in front of T.E. about Jews and Boy Scout Camp. On January 24, 2012, CMS Principal John Boyle (“Mr. Boyle”) called T.E. into his office because Ms. Eccleston had complained about the joke and about a swastika in the girls’ bathroom.
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During the meeting, T.E. explained to Mr. Boyle exactly where the swastika was located, yet Mr. Boyle told Ms. Eccleston that it was not there when he went to check later in the day, even though the swastika was in fact still there. Eventually, Plaintiff O.C. got tired of seeing the swastika and removed it herself.
54. On January 24, 2012, during a mid-term exam in math class, two students, B.G. and A.F., performed Hitler salutes. The teacher took no action against either student, though their conduct clearly violated the District’s Student Code of Conduct.
55. The next day, on January 25, 2012, B.G., one of the students who had performed a Hitler salute during the mid-term exam assaulted T.E. by throwing and hitting her with a dime. T.E. was so upset that she texted her mother saying that, if she had to go back to school, she would have a nervous breakdown. Ms. Eccleston called the Mobile Mental Health Group and a representative advised Ms. Eccleston that CMS was an unhealthy environment for T.E. Ms. Eccleston also reported the incident to the Town of Crawford Police Department. That incident was the last straw for T.E. January 25, 2012, was T.E.’s last day at CMS and she is now being home schooled.
56. As a result of the rampant anti-Semitic discrimination and harassment at PBES and CMS, T.E. has suffered physical, psychological, and emotional harm. T.E. has experienced extreme stress resulting from the constant bullying on the basis of her Jewish ancestry and religion. The anti-Semitic harassment and bullying consumed T.E.’s every thought. T.E.’s grades declined significantly, she withdrew from friendships, she stopped going into the Town of Pine Bush, and she stopped participating in school sports. In short, T.E. has been completely devastated by her classmates’ anti-Semitic harassment and discrimination, which the School District, School Board members, and school employees condoned.
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57. The grossly inadequate response by Superintendent Steinberg, Principal Boyle, former Assistant Principal Winter, former Principal Fisch, School Board members, and other School District officials to the anti-Semitic harassment endured by T.E. effectively denied her access to educational programs, activities, and opportunities.
58. While T.E. was a student in the District, neither the District nor any school official conducted adequate education or training for students, teachers, or administrators to address the discrimination and harassment of Jewish students. Plaintiff O.C.
59. O.C. has been a student in the School District since approximately September 2009. O.C. is a Jewish female. From approximately September 2009 through June 2012—from sixth through eighth grade—O.C. attended CMS. O.C became a ninth grade student at Pine Bush High School (“PBHS”) in September 2012.
60. The anti-Semitic discrimination and harassment against O.C. began when she entered CMS in sixth grade. O.C. has suffered discrimination and harassment in the form of physical assaults, intimidation, threats, insults, and name-calling on the basis of her national origin (Jewish ancestry) and religion.
61. The anti-Semitic physical assaults on O.C. started during a sixth grade field trip to Mamakating Town Park. During that trip, M.C. made fun of O.C. for being Jewish by picking up a penny and saying, “Look, I’m a Jew.” M.C. subsequently threw sand at O.C. O.C.’s friend, E.W., defended her and M.C. and E.W. ended up in a physical altercation at the Park. O.C. was terrified. Plaintiff T.E. also witnessed this disturbing incident.
62. The anti-Semitic physical assaults escalated during O.C.’s eighth grade year. In approximately September or October of 2010, O.C.’s classmate, C.V., attempted to shove a quarter down her throat while his brother, J.V., held O.C.’s arms so that she could not move.
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The students did not succeed because O.C. was able to break free and punched C.V. in the chest. O.C. reported the incident to school officials, but they failed to take any action.
63. O.C. was also subjected to anti-Semitic physical and verbal threats while attending CMS. In sixth grade, during a video about the Holocaust, classmate M.K. looked at O.C., formed his hand into the shape of a gun, and stated: “Look, I’m killing Jews.” Plaintiff T.E. witnessed this incident. O.C. was afraid and reported the incident to her teacher, Donna Coffey. Ms. Coffey wrote M.K. up, but failed to take any additional action. The same school year, O.C. overheard a conversation on the school bus where one student made fun of the Holocaust and said that O.C. should be burned. O.C. informed the bus driver about the discussion and the bus driver’s only response was that “she would listen for it next time.”
64. In seventh grade, O.C. heard a student tell another student that they should “stab [O.C.] with a menorah and sink her with a cross.” O.C. feared for what the other students might do to her. At lunch time, another student, K.R., told O.C.’s friends that O.C. should “go back to picking up pennies from the street.” In seventh grade Spanish class, a student drew Nazi signs on his binder and told O.C. that he was Hitler and had come to instill fear in her. He succeeded in this goal. Although O.C. reported both of these incidents to school officials, they did not take any remedial action.
65. O.C. was also subjected to ethnic slurs throughout her three years at CMS. In sixth grade, her classmate S.G. called her “Jesus hater” and another student called her “Christ killer.” Students in the sixth grade repeatedly called O.C. “stupid Jew.” O.C. reported these epithets to school officials, but no action was taken. In seventh grade, O.C.’s classmate I.D. called her a “dirty disgusting Jew,” causing a screaming match between the two students. Both students were sent to Assistant Principal Winter’s office. Mr. Winter let O.C. and I.D. talk out their differences
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and I.D. apologized so that she could leave. Mr. Winter took no further action and students continued to harass O.C, saying on several subsequent occasions: “You’re such a stupid Jew!” In eighth grade, many students told O.C. that she had “stupid Jew curls,” which caused her to feel self-conscious about how she looked. One student, J.G., curled her hair in March 2012 as a way of making fun of O.C.
66. O.C. was also subjected to an anti-Semitic environment that included assaults on other Jewish students and threatening conversations between students about other Jewish students. For instance, during sixth grade, O.C. saw her classmate J.B. come running out of a classroom holding her hand over her face to cover a swastika that K.C. had drawn on it. Another student, C.N., had held J.B.’s hands behind her back so that K.C. could draw the swastika. Infuriated by the incident, O.C. slapped C.N. O.C. was subsequently sent to the Principal’s office and Principal Boyle asked O.C.: “Why would you take offense to that when it was not directed at you?” O.C. was outraged that Mr. Boyle did not understand why K.C.’s actions were offensive to all Jewish students, even though the assault was not directed specifically at O.C. The fact that Mr. Boyle did not comprehend how this act could offend any other Jewish student makes clear that the School District failed to educate and train employees in the highest levels of leadership about how to respond to anti-Semitic discrimination and harassment.
67. The hostile environment at CMS also included anti-Semitic graffiti throughout the school. For instance, O.C. reported countless swastikas scrawled in textbooks, etched in bathroom stalls, and drawn on desks. In eighth grade, O.C. saw a particularly offensive swastika in a bathroom stall that contained the following inscription in its center: “For any Jew who wants it.” She reported this Assistant Principal Mummery, as did Plaintiff T.E., but school
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officials did not remove the offensive graffiti. O.C. removed the swastika herself on January 24, 2012.
68. In seventh grade English class, over the course of several weeks, O.C. reported a re-appearing swastika on her desk to Assistant Principal Winter. As soon as Mr. Winter had the swastika removed, a new one would appear in its place. At one point, there were three swastikas on her desk; inside one of them someone had written “[O.C.] is a Jew.” That same year, someone drew a swastika next to O.C.’s picture in C.M.’s yearbook. Mr. Winter responded by blocking out the swastika from the yearbook, but took no further remedial action. Mr. Winter’s responses were grossly inadequate, as the swastikas continued to appear.
69. When in the eighth grade, students defaced a poster of President Obama in O.C.’s Social Studies class with a swastika. The teacher, Heather Hennessy, did not take the poster down, even after O.C. complained three times. O.C. also reported the swastika to the substitute teacher after Ms. Hennessy left for maternity leave, but the substitute teacher also failed to remove the poster. Assistant Principal Mummery finally took the poster down, but only after it had already been up for over a month.
70. As a result of the rampant anti-Semitic discrimination and harassment that O.C. experienced at CMS, she has suffered physical, psychological and emotional harm. O.C. has become severely distracted during school hours and cannot focus on her studies. O.C. does not participate in extracurricular activities because she is afraid of the anti-Semitic harassment and discrimination. The intimidation, name calling, threats, and verbal and physical assaults, have caused O.C. to become socially isolated. Though O.C.’s grades were once outstanding, they have fallen dramatically.
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71. The grossly inadequate response of CMS school officials and employees to the anti-Semitic discrimination and harassment that O.C. endured effectively denied O.C. access to educational programs, activities and opportunities.
72. Since O.C. has been a student in the School District, neither the District nor any school official conducted adequate education or training for students, teachers, administrators to address the discrimination and harassment of Jewish students. Plaintiff D.C.
73. D.C. has been a student in the School District since approximately September 2007. D.C. is a Jewish male. Plaintiffs D.C. and O.C. are siblings. From September 2007 through June 2010—from sixth through eighth grade—D.C. was a student at CMS. D.C. has been attending PBHS since approximately September 2010 and is currently in eleventh grade.
74. The anti-Semitic discrimination and harassment against D.C. began when he entered CMS in sixth grade and have continued throughout his matriculation at both CMS and PBHS. D.C. has suffered discrimination and harassment in the form of physical assaults, intimidation, threats, insults, and name-calling on the basis of his national origin (Jewish ancestry) and religion.
75. From sixth through ninth grades, D.C. suffered physical assaults at CMS and PBHS because of his Jewish ancestry and religion. Students at both CMS and PBHS threw change at D.C. on an almost daily basis. During that same time frame, students also threatened to burn D.C. in the oven—a reference to the Holocaust—causing D.C. great upset, anxiety, and fear. In ninth grade, a PBHS senior frequently slapped D.C. in the face while calling him “Kike,” as D.C. exited the bus.
76. D.C. has also endured anti-Semitic insults, name-calling, and intimidation throughout his matriculation at CMS and PBHS. In eighth grade, CMS students sang songs
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about killing “niggers” and Jews in D.C.’s presence. From eighth through ninth grade, CMS and PBHS students took D.C.’s belongings out of his backpack and threw them on the ground because he is Jewish. From sixth through eighth grade, CMS students threw change into garbage receptacles and told D.C. to “go get it,” causing him additional fear and anxiety. In ninth grade, PBHS students repeatedly called D.C. “Ashes,” a reference to burning Jews during the Holocaust. In tenth grade, multiple PBHS students in Kelly King’s math class regularly bullied Jewish students in front of Ms. King. Although D.C. complained about the bullying, Ms. King failed to take any corrective action.
77. School officials and employees, including CMS’s Principal and Assistant Principal, CMS teacher Kelly King, and PBHS Principal Hopmayer, knew about many of the bullying incidents that D.C. suffered while attending their respective schools, but failed to take appropriate corrective action to address the rampant anti-Semitic discrimination and harassment.
78. As a result of the rampant anti-Semitic discrimination and harassment at CMS and PBHS, D.C. has suffered physical, psychological, and emotional harm. D.C. experiences immense stress and anxiety and fears attending school. D.C. has become socially isolated and no longer participates in extracurricular activities for fear of being bullied by his peers.
79. The grossly inadequate response of school officials and employees at CMS and PBHS to the anti-Semitic discrimination and harassment that D.C. has endured effectively denied D.C. access to educational programs, activities and opportunities.
80. Since D.C. has been a student in the School District, neither the District nor any school official conducted adequate education or training for students, teachers, administrators to address the discrimination and harassment of Jewish students.
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Plaintiff A.R. 81. A.R. has been a student in the School District since approximately June 2002, with
the exception of approximately one year, from September to March 2010, during his ninth grade year when A.R.’s parents removed him from the District because of the trauma he was suffering from the rampant anti-Semitism at the school. A.R. is a Jewish male. From approximately September 2006 through June 2009—sixth to eighth grade—A.R. attended CMS. A.R. has been attending PBHS since approximately March 2010 and is currently in twelfth grade.
82. The anti-Semitic discrimination and harassment against A.R. began when he entered seventh grade at CMS and have continued throughout his matriculation at both CMS and PBHS. A.R. has suffered discrimination and harassment in the form of physical assaults, intimidation, threats, insults, and name-calling on the basis of his national origin (Jewish ancestry) and religion.
83. When A.R. was in seventh grade, CMS students threw pennies and other coins at him and shouted ethnic slurs, including “stupid Jew.” Throughout his seventh grade year, he witnessed swastikas carved or drawn on desks or walls. Teachers and staff witnessed the severe and pervasive anti-Semitic harassment that A.R. experienced, as many of the incidents occurred in the school cafeteria, but none of them took action to protect A.R. or stop the harassment.
84. The anti-Semitic discrimination and harassment continued when A.R. was in eighth grade. CMS students pelted A.R. with coins during lunchtime. Countless students sitting on a bench during lunch pestered A.R. and his friends for change, implying that Jews would have pockets full of change, and they called A.R. a “stupid Jew” if he didn’t give them any change. One CMS student put a piece of tin foil on his head in the cafeteria and said to A.R., “I have a yarmulke; I am a Jew just like you.” Again, these incidents occurred in front of teachers in the school cafeteria, but the teachers failed to take any corrective action.
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85. On another occasion, a student asked A.R. if he was Jewish, then told A.R. the following anti-Semitic “joke”: “What is the difference between a Jew and a pizza? One doesn’t scream as it gets put in the oven.” Another student grabbed a history book, flipped to the section discussing the terrorist attacks on September 11, 2001, and stated that A.R. was responsible for the attacks. A.R. reported this incident to CMS Principal Boyle. Mr. Boyle merely placed the student on in-school suspension and asked the student to write A.R. an apology. Mr. Boyle did not follow up to ensure that A.R. received the apology—which he didn’t—and Mr. Boyle failed to take steps to address the widespread anti-Semitism that affected A.R. on an almost daily basis.
86. Halfway through eighth grade, a student walked up to A.R. at lunch time and attempted to punch A.R. in the face. A.R. stopped the student and fought back. The student provoked A.R. because of his Jewish ancestry and religion. School officials nonetheless suspended A.R. and his anti-Semitic attacker.
87. A.R.’s parents, Jerrold and Lucinda Rosen, met with CMS Assistant Principal Robert Peters on at least five occasions to address the rampant anti-Semitic bullying of his two sons, A.R. and D.R. Mr. Peters falsely told Mr. and Ms. Rosen that no one else had reported similar incidents of anti-Semitic harassment at CMS. Neither Mr. Peters nor Principal Boyle took appropriate steps to address the severe and pervasive anti-Semitic discrimination and bullying that A.R. and D.R. were suffering. Indeed, they did not even enforce the District’s Student Code of Conduct, which prohibited such harassment.
88. Because A.R. was so traumatized by the anti-Semitic bullying, and school officials’ failure to take corrective action, Mr. Rosen removed A.R. from District schools for almost a year. Since A.R. has returned to the District as a student at PBHS, he has continued to
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suffer a hostile environment because of his Jewish ancestry and religion. He continues to see swastikas written in marker on the bathroom walls and on the bleachers in the gym.
89. As a result of the rampant anti-Semitic discrimination at CMS and PBHS, A.R. has suffered physical, psychological and emotional injuries. A.R. experiences immense stress and anxiety and fears attending school. He has become socially isolated and no longer participates in extracurricular activities for fear of being bullied by his peers. In addition, A.R.’s grades have suffered significantly.
90. The grossly inadequate response of school officials and employees at CMS and PBHS to the anti-Semitic discrimination and harassment that A.R. has endured effectively denied A.R. access to educational programs, activities and opportunities.
91. Since A.R. has been a student in the School District, neither the District nor any school official conducted adequate education or training for students, teachers, administrators to address the discrimination and harassment of Jewish students. Plaintiff D.R.
92. D.R. has been a student in the School District since approximately September 2002. D.R. is a Jewish male. Plaintiffs D.R. and A.R. are siblings. From September 2008 through June 2011—from sixth through eighth grade—D.R. was a student at CMS. D.R. has been attending PBHS since approximately September 2011 and is currently in tenth grade.
93. The anti-Semitic discrimination and harassment against D.R. began when he entered sixth grade at CMS and have continued throughout his matriculation at both CMS and PBHS. D.R. has suffered discrimination and harassment in the form of physical assaults, intimidation, threats, insults, and name-calling on the basis of his national origin (Jewish ancestry) and religion.
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94. During D.R.’s first week of sixth grade, in September 2008, CMS students asked D.R. if he was Jewish between fifteen to twenty times. This upset him and caused him anxiety at school. The next month, in October 2008, students in the cafeteria asked him if he had “Jew gold.” He did not know how to respond. Later that same month, approximately twenty students threw coins at him in the cafeteria, causing him further anxiety and fear. D.R. reported the antiSemitic harassment to the lunchroom monitors, guidance office, and Assistant Principal Robert Peters. None of these school officials and employees took any corrective action.
95. In November 2008, D.R. filed a report with the school administration regarding the anti-Semitic harassment and discrimination he was suffering. A school employee made an announcement over the loud speaker that harsh action would be taken against any student caught discriminating. Although students refrained from bullying D.R. for about a month after this announcement, they resumed their bullying once again.
96. In December 2008, D.R. went on a school ski trip to Belleayre Mountain in New York State. On the way home, an eighth grade student asked D.R. if he was Jewish. When D.R. replied that he was, the student and others began slapping D.R. on the back of the head for the next fifteen minutes. Students also began hitting D.R., cursing at him, and throwing change and other items at him from across the bus. The only remedial action taken by school officials was to make one of the offending students write D.R. an apology. School officials did not take any additional corrective action to protect D.R. from the anti-Semitic harassment he suffered and the harassment continued.
97. Principal Boyle and Assistant Principal Peters’s deliberate indifference to the severe and pervasive incidents of anti-Semitic harassment against D.R. gave rise to additional harassment. In January 2009, students began calling D.R. “stupid Jew” and throwing coins at
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him more frequently. Moreover, the school bathrooms, the school cafeteria, textbooks, and desks were covered in swastikas. D.R. reported these incidents to school officials, but they did not take any corrective action.
98. D.R.’s parents, Jerrold and Lucinda Rosen, met with CMS Assistant Principal Robert Peters on at least five occasions to address the rampant anti-Semitic bullying of his two sons, A.R. and D.R. Mr. Peters falsely told Mr. and Ms. Rosen that no one else had reported similar incidents of anti-Semitic harassment at CMS. Neither Mr. Peters nor Principal Boyle took appropriate steps to address the severe and pervasive anti-Semitic discrimination and bullying that A.R. and D.R. were suffering. Indeed, they did not even enforce the District’s Student Code of Conduct, which prohibited such harassment.
99. As a result of the rampant anti-Semitic discrimination in the School District, D.R. has suffered physical, psychological and emotional injuries. D.R. experiences immense stress and anxiety and fears attending school. He has become socially isolated and no longer participates in extracurricular activities for fear of being bullied by his peers. In addition, D.R.’s grades have suffered significantly, particularly in eighth grade.
100. The grossly inadequate response of school officials and employees at CMS and PBHS to the anti-Semitic discrimination and harassment that D.R. has endured effectively denied D.R. access to educational programs, activities and opportunities.
101. Since D.R. has been a student in the School District, neither the District nor any school official conducted adequate education or training for students, teachers, administrators to address the discrimination and harassment of Jewish students.
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FIRST CLAIM FOR RELIEF Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.
Discrimination on the Basis of National Origin (Brought by T.E. Pursuant to 42 U.S.C. § 2000d et seq. against the School District and the
School Board) 102. Plaintiffs incorporate by reference all preceding paragraphs. 103. Upon information and belief, the School District, the School Board, and each school within the District attended by T.E. are recipients of federal financial assistance. 104. The acts and omissions of the School District and School Board, which include acts and omissions of School District officials and employees, violated T.E.’s rights under Title VI by discriminating against her on the basis of national origin (Jewish ancestry). 105. School District officials had actual notice that harassment based on national origin was so severe, pervasive, and objectively offensive that it created a hostile climate based on national origin that deprived T.E. of access to educational programs, activities, and opportunities. 106. The School District, and its policymakers, officials and other employees, exhibited deliberate indifference to the harassment of T.E. based on national origin in violation of Title VI. Through their unlawful deliberate indifference, the School District and School Board caused T.E. to be subjected to the above-described national origin discrimination. 107. The School District’s and the School Board’s violations of Title VI were the actual, direct, and proximate cause of injuries suffered by T.E. as alleged. 108. T.E. requests judgment in her favor against the School District and School Board as set forth in the Prayer for Relief.
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SECOND CLAIM FOR RELIEF Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.
Discrimination on the Basis of National Origin (Brought by O.C. Pursuant to 42 U.S.C. § 2000d et seq. against the School District and the
School Board) 109. Plaintiffs incorporate by reference all preceding paragraphs. 110. Upon information and belief, the School District, the School Board, and each school within the District attended by O.C. are recipients of federal financial assistance. 111. The acts and omissions of the School District and School Board, which include acts and omissions of School District officials and employees, violated O.C.’s rights under Title VI by discriminating against her on the basis of national origin (Jewish ancestry). 112. School District officials had actual notice that harassment based on national origin was so severe, pervasive, and objectively offensive that it created a hostile climate based on national origin that deprived O.C. of access to educational programs, activities, and opportunities. 113. The School District, and its policymakers, officials and other employees, exhibited deliberate indifference to the harassment of O.C. based on national origin in violation of Title VI. Through their unlawful deliberate indifference, the School District and School Board caused O.C. to be subjected to the above-described national origin discrimination. 114. The School District’s and the School Board’s violations of Title VI were the actual, direct, and proximate cause of injuries suffered by O.C. as alleged. 115. O.C. requests judgment in her favor against the School District and School Board as set forth in the Prayer for Relief.
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THIRD CLAIM FOR RELIEF Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.
Discrimination on the Basis of National Origin (Brought by D.C. Pursuant to 42 U.S.C. § 2000d et seq. against the School District and the
School Board) 116. Plaintiffs incorporate by reference all preceding paragraphs. 117. Upon information and belief, the School District, the School Board, and each school within the District attended by D.C. are recipients of federal financial assistance. 118. The acts and omissions of the School District and School Board, which include acts and omissions of School District officials and employees, violated D.C.’s rights under Title VI by discriminating against him on the basis of national origin (Jewish ancestry). 119. School District officials had actual notice that harassment based on national origin was so severe, pervasive, and objectively offensive that it created a hostile climate based on national origin that deprived D.C. of access to educational programs, activities, and opportunities. 120. The School District, and its policymakers, officials and other employees, exhibited deliberate indifference to the harassment of D.C. based on national origin in violation of Title VI. Through their unlawful deliberate indifference, the School District and School Board caused D.C. to be subjected to the above-described national origin discrimination. 121. The School District’s and the School Board’s violations of Title VI were the actual, direct, and proximate cause of injuries suffered by D.C. as alleged. 122. D.C. requests judgment in his favor against the School District and School Board as set forth in the Prayer for Relief.
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FOURTH CLAIM FOR RELIEF Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.
Discrimination on the Basis of National Origin (Brought by A.R. Pursuant to 42 U.S.C. § 2000d et seq. against the School District and the
School Board) 123. Plaintiffs incorporate by reference all preceding paragraphs. 124. Upon information and belief, the School District, the School Board, and each school within the District attended by A.R. are recipients of federal financial assistance. 125. The acts and omissions of the School District and School Board, which include acts and omissions of School District officials and employees, violated A.R.’s rights under Title VI by discriminating against him on the basis of national origin (Jewish ancestry). 126. School District officials had actual notice that harassment based on national origin was so severe, pervasive, and objectively offensive that it created a hostile climate based on national origin that deprived A.R. of access to educational programs, activities, and opportunities. 127. The School District, and its policymakers, officials and other employees, exhibited deliberate indifference to the harassment of A.R. based on national origin in violation of Title VI. Through their unlawful deliberate indifference, the School District and School Board caused A.R. to be subjected to the above-described national origin discrimination. 128. The School District’s and the School Board’s violations of Title VI were the actual, direct, and proximate cause of injuries suffered by A.R. as alleged. 129. A.R. requests judgment in his favor against the School District and School Board as set forth in the Prayer for Relief.
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FIFTH CLAIM FOR RELIEF Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.
Discrimination on the Basis of National Origin (Brought by D.R. Pursuant to 42 U.S.C. § 2000d et seq. against the School District and the
School Board) 130. Plaintiffs incorporate by reference all preceding paragraphs. 131. Upon information and belief, the School District, the School Board, and each school within the District attended by D.R. are recipients of federal financial assistance. 132. The acts and omissions of the School District and School Board, which include acts and omissions of School District officials and employees, violated D.R.’s rights under Title VI by discriminating against him on the basis of national origin (Jewish ancestry). 133. School District officials had actual notice that harassment based on national origin was so severe, pervasive, and objectively offensive that it created a hostile climate based on national origin that deprived D.R. of access to educational programs, activities, and opportunities. 134. The School District, and its policymakers, officials and other employees, exhibited deliberate indifference to the harassment of D.R. based on national origin in violation of Title VI. Through their unlawful deliberate indifference, the School District and School Board caused D.R. to be subjected to the above-described national origin discrimination. 135. The School District’s and the School Board’s violations of Title VI were the actual, direct, and proximate cause of injuries suffered by D.R. as alleged. 136. D.R. requests judgment in his favor against the School District and School Board 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 National Origin and/or Religion (Brought by T.E. Pursuant to 42 U.S.C. § 1983 against the School District, the School Board, Mr. Steinberg in his official and individual capacities, Mr. Boyle in his official capacity, and Mr. Fisch and Mr. Winter in their individual capacities.) 137. Plaintiffs incorporate by reference all preceding paragraphs. 138. The School District, the School Board, Mr. Steinberg, Mr. Boyle, Mr. Fisch, and Mr. Winter, acting under color of state law, have deprived T.E. of the rights, privileges, or immunities secured by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, in that Defendants, without justification, have intentionally discriminated against T.E. on the basis of her national origin and/or religion. 139. Each of these Defendants had actual knowledge that harassment based on national origin and/or religion was so severe, pervasive, and objectively offensive that it created a hostile climate that deprived T.E. of access to educational programs, activities, and opportunities. 140. The practices, policies, or customs of the School District, School Board, and their policymakers for responding to such harassment based on national origin and/or religion were so clearly unreasonable in light of the known circumstances as to give rise to a reasonable inference that each of the Defendants named in this claim intended for the harassment to occur. 141. The practices, policies, or customs of the School District, School Board, and their policymakers have substantially contributed to the creation of a pervasive anti-Semitic climate in the District and exacerbated the epidemic of anti-Semitic harassment in District schools. 142. The School District, School Board, Superintendent Steinberg, and CMS Principal Boyle also failed to adequately train School District staff about policies prohibiting harassment and discrimination on the basis of national origin and/or religion. These Defendants’ failure to
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train caused T.E. to be subjected to discrimination and harassment on the basis of national origin and/or religion.
143. The violations of T.E.’s rights under the Fourteenth Amendment by each of the Defendants named in this claim were the actual, direct, and proximate cause of injuries suffered by T.E. as alleged.
144. T.E. requests judgment in her favor against each of the Defendants named in this claim as set forth in the Prayer for Relief.
SEVENTH CLAIM FOR RELIEF U.S. Constitution Amendment XIV Denial of Equal Protection on the Basis of National Origin and/or Religion (Brought by O.C. Pursuant to 42 U.S.C. § 1983 against the School District, the School Board, Mr. Steinberg in his official and individual capacities, Mr. Boyle in his official capacity, and Mr.
Winter in his individual capacity) 145. Plaintiffs incorporate by reference all preceding paragraphs. 146. The School District, the School Board, Mr. Steinberg, Mr. Boyle and Mr. Winter, acting under color of state law, have deprived O.C. of the rights, privileges, or immunities secured by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, in that Defendants, without justification, have intentionally discriminated against O.C on the basis of her national origin and/or religion. 147. Each of these Defendants had actual knowledge that harassment based on national origin and/or religion was so severe, pervasive, and objectively offensive that it created a hostile climate that deprived O.C. of access to educational programs, activities, and opportunities. 148. The practices, policies, or customs of the School District, School Board, and their policymakers for responding to such harassment based on national origin and/or religion were so
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clearly unreasonable in light of the known circumstances as to give rise to a reasonable inference that each of the Defendants named in this claim intended for the harassment to occur.
149. The practices, policies, or customs of the School District, School Board, and their policymakers have substantially contributed to the creation of a pervasive anti-Semitic climate in the District and exacerbated the epidemic of anti-Semitic harassment in District schools.
150. The School District, School Board, Superintendent Steinberg, and CMS Principal Boyle also failed to adequately train School District staff about policies prohibiting harassment and discrimination on the basis of national origin and/or religion. These Defendants’ failure to train caused O.C. to be subjected to discrimination and harassment on the basis of national origin and/or religion.
151. The violations of O.C.’s rights under the Fourteenth Amendment by each of the Defendants named in this claim were the actual, direct, and proximate cause of injuries suffered by O.C. as alleged.
152. O.C. requests judgment in her favor against each of the Defendants named in this claim as set forth in the Prayer for Relief.
EIGHTH CLAIM FOR RELIEF U.S. Constitution Amendment XIV Denial of Equal Protection on the Basis of National Origin and/or Religion (Brought by D.C. Pursuant to 42 U.S.C. § 1983 against the School District, the School Board, and Mr. Steinberg, Mr. Hopmayer and Mr. Boyle in their official capacities) 153. Plaintiffs incorporate by reference all preceding paragraphs. 154. The School District, the School Board, Mr. Steinberg, Mr. Hopmayer and Mr. Boyle, acting under color of state law, have deprived D.C. of the rights, privileges, or immunities secured by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution,
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in that Defendants, without justification, have intentionally discriminated against D.C. on the basis of his national origin and/or religion.
155. Each of these Defendants had actual knowledge that harassment based on national origin and/or religion was so severe, pervasive, and objectively offensive that it created a hostile climate that deprived D.C. of access to educational programs, activities, and opportunities.
156. The practices, policies, or customs of the School District, School Board, and their policymakers for responding to such harassment based on national origin and/or religion were so clearly unreasonable in light of the known circumstances as to give rise to a reasonable inference that each of the Defendants named in this claim intended for the harassment to occur.
157. The practices, policies, or customs of the School District, School Board, and their policymakers have substantially contributed to the creation of a pervasive anti-Semitic climate in the District and exacerbated the epidemic of anti-Semitic harassment in District schools.
158. The School District, School Board, Superintendent Steinberg, PBHS Principal Hopmayer, and CMS Principal Boyle also failed to adequately train School District staff about policies prohibiting harassment and discrimination on the basis of national origin and/or religion. These Defendants’ failure to train caused D.C. to be subjected to discrimination and harassment on the basis of national origin and/or religion.
159. The violations of D.C.’s rights under the Fourteenth Amendment by each of the Defendants named in this claim were the actual, direct, and proximate cause of injuries suffered by D.C. as alleged.
160. D.C. requests judgment in his favor against each of the Defendants named in this claim as set forth in the Prayer for Relief.
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NINTH CLAIM FOR RELIEF U.S. Constitution Amendment XIV Denial of Equal Protection on the Basis of National Origin and/or Religion (Brought by A.R. Pursuant to 42 U.S.C. § 1983 against the School District, the School Board, Mr. Steinberg in his official capacity, Mr. Hopmayer in his official capacity, Mr. Boyle in his official capacity, and Mr. Peters in his individual capacity) 161. Plaintiffs incorporate by reference all preceding paragraphs. 162. The School District, the School Board, Mr. Steinberg, Mr. Hopmayer, Mr. Boyle, and Mr. Peters, acting under color of state law, have deprived A.R. of the rights, privileges, or immunities secured by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, in that Defendants, without justification, have intentionally discriminated against A.R. on the basis of his national origin and/or religion. 163. Each of these Defendants had actual knowledge that harassment based on national origin and/or religion was so severe, pervasive, and objectively offensive that it created a hostile climate that deprived A.R. of access to educational programs, activities, and opportunities. 164. The practices, policies, or customs of the School District, School Board, and their policymakers for responding to such harassment based on national origin and/or religion were so clearly unreasonable in light of the known circumstances as to give rise to a reasonable inference that each of the Defendants named in this claim intended for the harassment to occur. 165. The practices, policies, or customs of the School District, School Board, and their policymakers have substantially contributed to the creation of a pervasive anti-Semitic climate in the District and exacerbated the epidemic of anti-Semitic harassment in District schools. 166. The School District, School Board, Superintendent Steinberg, PBHS Principal Hopmayer, and CMS Principal Boyle also failed to adequately train School District staff about policies prohibiting harassment and discrimination on the basis of national origin and/or religion.
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These Defendants’ failure to train caused A.R. to be subjected to discrimination and harassment on the basis of national origin and/or religion.
167. The violations of A.R.’s rights under the Fourteenth Amendment by each of the Defendants named in this claim were the actual, direct, and proximate cause of injuries suffered by A.R. as alleged.
168. A.R. requests judgment in his favor against each of the Defendants named in this claim as set forth in the Prayer for Relief.
TENTH CLAIM FOR RELIEF U.S. Constitution Amendment XIV Denial of Equal Protection on the Basis of National Origin and/or Religion (Brought by D.R. Pursuant to 42 U.S.C. § 1983 against the School District, the School Board, Mr. Steinberg in his official capacity, Mr. Hopmayer in his official capacity, Mr. Boyle in his official capacity, and Mr. Peters in his individual capacity) 169. Plaintiffs incorporate by reference all preceding paragraphs. 170. The School District, the School Board, Mr. Steinberg, Mr. Hopmayer, Mr. Boyle and Mr. Peters, acting under color of state law, have deprived D.R. of the rights, privileges, or immunities secured by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, in that Defendants, without justification, have intentionally discriminated against D.R. on the basis of his national origin and/or religion. 171. Each of these Defendants had actual knowledge that harassment based on national origin and/or religion was so severe, pervasive, and objectively offensive that it created a hostile climate that deprived D.R. of access to educational programs, activities, and opportunities. 172. The practices, policies, or customs of the School District, School Board, and their policymakers for responding to such harassment based on national origin and/or religion were so
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clearly unreasonable in light of the known circumstances as to give rise to a reasonable inference that each of the Defendants named in this claim intended for the harassment to occur.
173. The practices, policies, or customs of the School District, School Board, and their policymakers have substantially contributed to the creation of a pervasive anti-Semitic climate in the District and exacerbated the epidemic of anti-Semitic harassment in District schools.
174. The School District, School Board, Superintendent Steinberg, PBHS Principal Hopmayer, and CMS Principal Boyle also failed to adequately train School District staff about policies prohibiting harassment and discrimination on the basis of national origin and/or religion. These Defendants’ failure to train caused D.R. to be subjected to discrimination and harassment on the basis of national origin and/or religion.
175. The violations of D.R.’s rights under the Fourteenth Amendment by each of the Defendants named in this claim were the actual, direct, and proximate cause of injuries suffered by D.R. as alleged.
176. D.R. requests judgment in his favor against each of the Defendants named in this claim 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 National Origin and/or Creed (Brought by T.E. Pursuant to the New York Civil Rights Law against the School District, the School Board, Mr. Steinberg in his official capacity, and Mr. Fisch and Mr. Winter in their
individual capacities) 177. Plaintiffs incorporate by reference all preceding paragraphs. 178. The acts and omissions described above by the School District, the School Board, Mr. Steinberg, Mr. Fisch, and Mr. Winter subjected T.E. to discrimination based on national origin and/or creed in the exercise of her civil right to education under New York Law.
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179. Each of these Defendants’ acts and omissions also aided and incited unlawful discrimination against T.E. by others based on national origin and/or creed in the exercise of her civil right to education under New York law. The acts and omissions were undertaken recklessly and with the intent to engage in wrongful conduct.
180. These violations of T.E.’s rights under the New York Civil Rights Law are the actual, direct, and proximate cause of injuries suffered by T.E. as alleged herein.
181. Plaintiffs have complied with the procedural requirements of New York Civil Rights Law § 40-d by serving notice upon the State Attorney General at or before the commencement of the action.
182. By this action, T.E. seeks to vindicate the public interest by enforcing fundamental state civil rights protections for students, including students who face discrimination and harassment at school based on national origin and/or creed.
183. T.E. requests judgment in her favor against each of these Defendants 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 National Origin and/or Creed (Brought by O.C. Pursuant to the New York Civil Rights Law against the School District, the School Board, Mr. Steinberg in his official capacity, and Mr. Winter in his individual capacity) 184. Plaintiffs incorporate by reference all preceding paragraphs. 185. The acts and omissions described above by the School District, the School Board, Mr. Steinberg, and Mr. Winter subjected O.C. to discrimination based on national origin and/or creed in the exercise of her civil right to education under New York Law. 186. Each of these Defendants’ acts and omissions also aided and incited unlawful discrimination against O.C. by others based on national origin and/or creed in the exercise of her
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civil right to education under New York law. The acts and omissions were undertaken recklessly and with the intent to engage in wrongful conduct.
187. These violations of O.C.’s rights under the New York Civil Rights Law are the actual, direct, and proximate cause of injuries suffered by O.C. as alleged herein.
188. Plaintiffs have complied with the procedural requirements of New York Civil Rights Law § 40-d by serving notice upon the State Attorney General at or before the commencement of the action.
189. By this action, O.C. seeks to vindicate the public interest by enforcing fundamental state civil rights protections for students, including students who face discrimination and harassment at school based on national origin and/or creed.
190. O.C. requests judgment in her favor against each of these Defendants as set forth in the Prayer for Relief.
THIRTEENTH CLAIM FOR RELIEF New York Civil Rights Law §§ 40-c and 40-d Discrimination Based on National Origin and/or Creed (Brought by D.C. Pursuant to the New York Civil Rights Law against the School District, the School Board, and Mr. Steinberg in his official capacity) 191. Plaintiffs incorporate by reference all preceding paragraphs. 192. The acts and omissions described above by the School District, the School Board, and Mr. Steinberg subjected D.C. to discrimination based on national origin and/or creed in the exercise of his civil right to education under New York Law. 193. Each of these Defendants’ acts and omissions also aided and incited unlawful discrimination against D.C. by others based on national origin and/or creed in the exercise of his civil right to education under New York law. The acts and omissions were undertaken recklessly and with the intent to engage in wrongful conduct.
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194. These violations of D.C.’s rights under the New York Civil Rights Law are the actual, direct, and proximate cause of injuries suffered by D.C. as alleged herein.
195. Plaintiffs have complied with the procedural requirements of New York Civil Rights Law § 40-d by serving notice upon the State Attorney General at or before the commencement of the action.
196. By this action, D.C. seeks to vindicate the public interest by enforcing fundamental state civil rights protections for students, including students who face discrimination and harassment at school based on national origin and/or creed.
197. D.C. requests judgment in his favor against each of these Defendants as set forth in the Prayer for Relief.
FOURTEENTH CLAIM FOR RELIEF New York Civil Rights Law §§ 40-c and 40-d Discrimination Based on National Origin and/or Creed (Brought by A.R. Pursuant to the New York Civil Rights Law against the School District, the School Board, Mr. Steinberg in his official capacity, and Mr. Peters in his individual capacity) 198. Plaintiffs incorporate by reference all preceding paragraphs. 199. The acts and omissions described above by the School District, the School Board, Mr. Steinberg, and Mr. Peters subjected D.C. to discrimination based on national origin and/or creed in the exercise of his civil right to education under New York Law. 200. Each of these Defendants’ acts and omissions also aided and incited unlawful discrimination against A.R. by others based on national origin and/or creed in the exercise of his civil right to education under New York law. The acts and omissions were undertaken recklessly and with the intent to engage in wrongful conduct. 201. These violations of A.R.’s rights under the New York Civil Rights Law are the actual, direct, and proximate cause of injuries suffered by A.R. as alleged herein.
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202. Plaintiffs have complied with the procedural requirements of New York Civil Rights Law § 40-d by serving notice upon the State Attorney General at or before the commencement of the action.
203. By this action, A.R. seeks to vindicate the public interest by enforcing fundamental state civil rights protections for students, including students who face discrimination and harassment at school based on national origin and/or creed.
204. A.R. requests judgment in his favor against each of these Defendants as set forth in the Prayer for Relief.
FIFTEENTH CLAIM FOR RELIEF New York Civil Rights Law §§ 40-c and 40-d Discrimination Based on National Origin and/or Creed (Brought by D.R. Pursuant to the New York Civil Rights Law against the School District, the School Board, Mr. Steinberg in his official capacity, and Mr. Peters in his individual capacity) 205. Plaintiffs incorporate by reference all preceding paragraphs. 206. The acts and omissions described above by the School District, the School Board, Mr. Steinberg, and Mr. Peters subjected D.R. to discrimination based on national origin and/or creed in the exercise of his civil right to education under New York Law. 207. Each of these Defendants’ acts and omissions also aided and incited unlawful discrimination against D.R. by others based on national origin and/or creed in the exercise of his civil right to education under New York law. The acts and omissions were undertaken recklessly and with the intent to engage in wrongful conduct. 208. These violations of D.R.’s rights under the New York Civil Rights Law are the actual, direct, and proximate cause of injuries suffered by D.R. as alleged herein.
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209. Plaintiffs have complied with the procedural requirements of New York Civil Rights Law § 40-d by serving notice upon the State Attorney General at or before the commencement of the action.
210. By this action, D.R. seeks to vindicate the public interest by enforcing fundamental state civil rights protections for students, including students who face discrimination and harassment at school based on national origin and/or creed.
211. D.R. requests judgment in his favor against each of these Defendants as set forth in the Prayer for Relief.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs T.E., O.C., D.C., A.R., and D.R. request judgment in their favor and pray for relief against Defendants Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Aaron Hopmayer, John Boyle, Eric Winter, Steve Fisch, and Robert Peters as follows: 1. For an order declaring that Defendants Pine Bush Central School District and Pine Bush Central School Board of Education have been deliberately indifferent to known acts of discrimination and harassment on the basis of national origin, and that the discrimination was so severe, pervasive, and objectively offensive that it effectively barred Plaintiffs access to an educational opportunity or benefit in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.; 2. For an order declaring that Defendants Pine Bush Central School District, Pine Bush Central School Board of Education, Philip G. Steinberg, Eric Winter, Steve Fisch, and Robert Peters have been deliberately indifferent to known acts of discrimination and harassment on the basis of national origin and/or religion in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
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3. For an order declaring that Defendants Pine Bush Central School District and Pine Bush Central School Board of Education, through their agents and employees, and Defendants Eric Winter, Steve Fisch and Robert Peters, in their individual capacities, subjected Plaintiffs to discrimination while exercising their civil right to education under New York law in violation of New York Civil Rights Law §§ 40-c and 40-d;
4. For an order granting all Plaintiffs nominal and compensatory damages against Defendants Pine Bush Central School District and Pine Bush Central School District Board of Education for violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.;
5. For an order granting all Plaintiffs nominal, compensatory, and punitive damages against Defendants Pine Bush Central School District and Pine Bush Central School District Board of Education for violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
6. For an order granting T.E. nominal, compensatory, and punitive damages against Defendants Philip G. Steinberg, Steve Fisch, and Eric Winter for violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
7. For an order granting O.C. nominal, compensatory, and punitive damages against Defendants Philip G. Steinberg and Eric Winter for violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
8. For an order granting A.R. nominal, compensatory, and punitive damages against Defendant Robert Peters for violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
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9. For an order granting D.R. nominal, compensatory, and punitive damages against Defendant Robert Peters for violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
10. For an order granting T.E. statutory damages against Defendants Steve Fisch and Eric Winter for each violation of the New York Civil Rights Law §§ 40-c and 40-d;
11. For an order granting O.C. statutory damages against Defendant Eric Winter for each violation of the New York Civil Rights Law §§ 40-c and 40-d;
12. For an order granting A.R. statutory damages against Defendant Robert Peters for each violation of the New York Civil Rights Law §§ 40-c and 40-d;
13. For an order granting D.R. statutory damages against Defendant Robert Peters for each violation of the New York Civil Rights Law §§ 40-c and 40-d;
14. For a permanent injunction restraining and enjoining Defendants Pine Bush Central School District, Pine Bush Central School Board of Education, Philip G. Steinberg, Aaron Hopmayer, John Boyle, and Eric Winter from failing to adequately protect Plaintiffs O.C., D.C., A.R., D.R, and other similarly situated students, from verbal and physical harassment within the School District;
15. For a permanent injunction ordering Defendants Pine Bush Central School District, Pine Bush Central School Board of Education, and Philip G. Steinberg to stop engaging in unconstitutional and unlawful acts, and to develop policies and procedures for ending any such unconstitutional and unlawful acts and the hostile and intolerant environment, including but not limited to the following:
a. Require Defendants Pine Bush Central School District, Pine Bush Central School Board of Education, and Philip G. Steinberg to implement mandatory and effective training programs for District faculty, staff, and students on issues relating to diversity, anti-Semitism, and national origin discrimination,
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and methods to intervene to stop students from harassing other students based on their religion and national origin;
b. Require Defendants Pine Bush Central School District, Pine Bush Central School Board of Education, and Philip G. Steinberg to adopt policies with specific guidelines for instructing teachers, security guards, bus drivers, hall monitors and administrators about how to address complaints by students who have been taunted, harassed, or discriminated against because of their religion and national origin;
c. Require Defendants Pine Bush Central School District, Pine Bush Central School Board of Education, Philip G. Steinberg, Aaron Hopmayer, John Boyle, and Eric Winter to conduct assemblies for all students in the School District addressing issues of diversity and tolerance, wherein students are instructed about laws prohibiting harassment and discrimination based on their religion and national origin;
d. Require Defendants Pine Bush Central School District, Pine Bush Central School Board of Education, Philip G. Steinberg, Aaron Hopmayer, John Boyle, and Eric Winter to assign a peer mediator and/or other staff member to District schools to provide active monitoring for the schools and to address instances of harassment and discrimination that arise at the schools;
e. Require Defendants Pine Bush Central School District, Pine Bush Central School Board of Education, and Philip G. Steinberg to maintain statistical data concerning each complaint of harassment based on religion and/or national origin made by a student or staff member, as well as the specific action district principals, assistant principals, teachers, security guards, bus drivers, and administrators took to resolve the complaint;
16. For an order awarding Plaintiffs their expenses and costs, including reasonable
attorneys’ fees;
17. For an order awarding each Plaintiff pre-judgment interest and post-judgment
interest; and
18. For an order awarding such other and further relief as the Court deems just and
proper.
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Dated: January 7, 2013

METH LAW OFFICES, P.C.
s/Michael D. Meth Michael D. Meth- mm9489 10 Moffatt Lane Suite Two Chester, NY 10918 (845) 469-9529 (845) 469-9989 (fax) michael@methlaw.com
Adele P. Kimmel (admitted pro hac vice) PUBLIC JUSTICE, P.C. 1825 K Street, NW Suite 200 Washington, DC 20006 (202) 797-8600 (202) 232-7203 (fax) akimmel@publicjustice.net
ATTORNEYS FOR PLAINTIFFS

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 Case 7:12-cv-02303-KMK Document 23 Filed 01/10/13 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

SHERRI ECCLESTON, et al.,

Plaintiffs.
- against -
PINE BUSH CENTRAI SCHOOL DISTRICT, et al., Defendants.

12 Civ. 2303 (KMK) (PED) ORDER

PAUL E. DAVISON, U.S.M.J.: In order that defendant Pine Bush Central School District (Defendant”) may comply with
its discovery obligations pursuant to the Federal Rules of Civil Procedure, the Court hereby ORDERS Defendants to release to Plaintiffs certain educational records as defined and governed
by the Family Education Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g. The records,
which concern students who are not parties to this action and shall be produced without redaction of personal identification information, include disciplinary referrals and incident reports related to the allegations made and/or defenses raised in this action; handwritten notes containing information about nonparties that are related to the allegations made and/or defense raised; and records maintained through the CrossPointe Schools online electronic system, with redaction of events identified on the documents that are unrelated to the allegations made and/or the defense raised. FERPA provides for the release of educational records. including student records. without
parental consent under limited circumstances. including issuance of a judicial order. §
1 232g(b)(2)(B). To ensure compliance with FERPA , and as a condition precedent to the release of these
records to Plaintiffs. Defendants are ORDERED to notify either (a) the parent/guardian of the student. or (b) if the student is either 18 years old or attending an institution of post secondary

Case 7:12-cv-02303-KMK Document 23 Filed 01/10/13 Page 2 of 2
education, the student, of defendant’s intention to release student records. Such notification shall be accompanied by a copy of this Order. No records shall be disclosed to Plaintiffs earlier than five (5) days after the notice ordered herein has been served.
It is further ORDERED that no student records shall be disclosed until a protective order covering the records has been entered by the Court. Counsel are directed to confer and thereafter submit a mutually agreeable proposed protective order.
Dated: January 10. 2013 White Plains, New York
Paul E. Davison United States Magistrate Judge

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

T.E., O.C., and D.C., et al., Plaintiffs,
-vPINE BUSH CENTRAL SCHOOL DISTRICT, et al.,
Defendants.

Case No. 12-CV-2303(KMK) OPINION & ORDER

Appearances
Adele Phyllis Kimmel, Esq. Public Justice Washington, DC Counsel for Plaintiffs
O. Andrew F. Wilson, Esq. Ilann M. Maazel, Esq. Zoe Antonia Salzman, Esq. Emery Celli Brinckerhoff & Abady, L.L.P. New York, NY Counsel for Plaintiffs
Michael David Meth, Esq. Meth Law Offices, P.C. Chester, NY Counsel for Plaintiffs
Joan M. Gilbride, Esq. Kaufman, Borgeest & Ryan, L.L.P. New York, NY Counsel for Defendants Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, John Boyle, Steve Fisch, Robert Peters, and Aaron Hopmayer
Maree Sneed, Esq. Hogan Lovells, L.L.P. Washington, DC Counsel for Defendants Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter John Boyle, Steve Fisch, Robert Peters, and Aaron Hopmayer

Laura Wong-Pan, Esq. Thomas Drohan Waxman Petigrow & Mayle, L.L.P. Hopewell Junction, NY Counsel for Defendants Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter John Boyle, Steve Fisch, Robert Peters, and Aaron Hopmayer KENNETH M. KARAS, United States District Judge:
Plaintiffs, five Jewish students who attended schools in the Pine Bush Central School District (“PBCSD” or “the District”), bring this Action against the District and several PBCSD Administrators under Title VI of the Civil Rights Act of 1964, 42 U.S.C §§ 2000d et seq. (“Title VI”), the Equal Protection Clause, U.S. Const. amend. XIV, § 1, under 42 U.S.C. § 1983 (“Section 1983”), and New York Civil Rights Law §§ 40-c and 40-d.1 Plaintiffs’ claims arise from anti-Semitic harassment that Plaintiffs allegedly suffered while they were enrolled in the District. Defendants move for summary judgment with respect to the claims brought by T.E., D.C., and O.C., pursuant to Rule 56 of the Federal Rules of Civil Procedure.2 For the following reasons, Defendants’ Motion is granted in part and denied in part.
I. BACKGROUND A. Factual History The harassment alleged by Plaintiffs in this case spans half a decade and three separate schools within PBCSD: Pine Bush Elementary School (“PBE”), Crispell Middle School
1 As Plaintiffs were all minors at the time this suit was filed, the Court will refer to them using their initials. In the interest of maintaining Plaintiffs’ relative anonymity, the Court will refer to the parents of these Plaintiffs as each student’s “mother” or “father,” or Mr. C. or Mrs. E, rather than disclosing Plaintiffs’ surnames.
2 Defendants do not move for summary judgment as to Plaintiffs A.R. and D.R. 2

(“Crispell”), and Pine Bush High School (“PBHS”).3 In addition to the District itself, Plaintiffs named the PBCSD Administrators who oversaw these schools as Defendants. These Defendants include Philip Steinberg, (“Steinberg” or “the Superintendent”), the Superintendent of PBCSD from 2008 to 2013; Steve Fisch (“Fisch”), the Principal of PBE from 1991 to 2011; John Boyle (“Boyle”), the Principal of Crispell since 2002; Robert Peters (“Peters”), the Assistant Principal of Crispell from 2007 to 2010; Eric Winter (“Winter”), the Assistant Principal of Crispell from 2010 to 2011; and Aaron Hopmayer (“Hopmayer”), the Principal of PBHS from 2007 through the time of his deposition. (Fisch Deposition Tr. (“Fisch”) 17 (Wilson Decl. Ex. 4 (Dkt. No. 79)); Boyle Deposition Tr. (“Boyle”) 16–17, 20 (Wilson Decl. Ex. 5 (Dkt. No. 79)); Hopmayer Deposition Tr. (“Hopmayer”) 28 (Wilson Decl. Ex. 7 (Dkt. No. 79)); See Declaration of Ilann M Maazel (“Maazel Decl.”) Ex. 2 (Dkt. No. 63) (chart summarizing administrators that were in charge during the relevant times and at the relevant locations to Plaintiffs’ claims)).)
For the purposes of the instant Summary Judgment Motion, the Court will consider the harassment allegedly suffered by Plaintiffs D.C., T.E., and O.C., as well as the District’s response to that harassment. The specifics of many of the incidents of harassment alleged, as well as the District’s response—or lack thereof—are contested, even though Defendants do not dispute many of them for the purposes of the instant Motion. (See Defs.’ Rule 56.1 Statement (“Defs.’ 56.1.”) (Dkt. No. 76); Pls.’ Response to Defs.’ Rule 56.1 Statement (“Pls.’ 56.1 Resp.”) (Dkt. No. 71); Defs.’ Reply to Pls.’ 56.1 Counterstatement (“Defs.’ 56.1 Resp.”) (Dkt. No. 81).)4
3 PBE educates students from kindergarten through fifth grade, Crispell educates students from sixth through eighth grade, and PBHS educates students in grades nine through twelve.
4 Defendants’ Reply to Plaintiffs’ 56.1 Counterstatement reiterates Plaintiffs’ factual assertions before noting whether Defendants dispute or concede these facts for the purposes of the instant Motion. The Court will cite to this document, where possible, for the reader’s ease of reference. As Defendants do not dispute the majority of Plaintiffs’ statements, the Court will
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Plaintiffs’ allegations catalogue years of harassment at the hands of their fellow students, but a few key incidents, and the District’s responses thereto, are informative for the purposes of the instant Motion.5
1. Plaintiff D.C. D.C. is a male student who claims to have suffered anti-Semitic harassment and to have been subject to physical and verbal threats during his enrollment in PBCSD from sixth through twelfth grade. (See Defs.’ 56.1 Resp. ¶ 50; D.C. Deposition Tr. (“D.C.”) 28 (Wilson Decl. Ex. 11 (Dkt. No. 79)).) He alleges that, throughout this time, other students physically and verbally threatened him by “pellet[ing]” change at him, telling him he “was going to be burned in an oven,” and that “if [he] did anything [in response to this harassment,] that they knew where [he] lived.” (Defs.’ 56.1 Resp. ¶¶ 51–53; D.C. 28.) D.C. also witnessed “swastikas everywhere in the high school and in the middle school” that he testified “would be impossible” for teachers to miss. (Defs.’ 56.1 Resp. ¶ 55; D.C. 11.) He further describes “fairly constant” harassment, during his years in PBCSD, (D.C. 66–67), during which time he was called “countless” names, including “dirty jew,” “filthy jew,” “stupid Jew,” “fat Jew,” “Jew faggot,” “fucking Jew kike,” “ashes,” “dust,” and “mocky fuck.” (Defs.’ 56.1 Resp. ¶¶ 56–57; D.C. 68–69.) When D.C. was in sixth grade, a girl who “bull[ied D.C.] constantly” on the school bus yelled “F’ing Jew” while D.C. was on the bus. (Defs.’ 56.1 Resp. ¶ 290; D.C. 29.) Mr. C.,
only highlight where such factual disputes exist, rather than where they are undisputed. 5 The Court recognizes that some of the language that Plaintiffs allege to have been
directed against them is undeniably offensive and may be painful for some readers. Nonetheless, the Court does not see fit to censor or euphemize Plaintiffs’ allegations in this Opinion. As Plaintiffs’ counsel stated at oral argument, “the language matters in this case, and there’s a way in which, by not articulating some of these things, they lose their force.” (See July 17, 2014 Oral Argument Transcript (“July 17, 2014 Tr.”) 39.)
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D.C.’s father, reported the slur to Boyle, (see Defs.’ 56.1 Resp. ¶ 291; D.C. 29; Mr. C.’s Deposition Tr. (“Mr. C.”) 10, 13 (Wilson Decl. Ex. 12 (Dkt. No. 79))), and told Boyle that D.C. “had been the butt of many Jewish jokes,” that the bus incident “crossed a very severe line,” and that D.C. was being harassed by “multiple kids over the course of that year” and was experiencing intolerance from “a lot of kids,” (Defs.’ 56.1 Resp. ¶¶ 292–93; Mr. C. 10–13). When Boyle told Mr. C. that the incident would be handled on an individual basis, Mr. C. told Boyle that “this isn’t an individual thing, this is systemic.” (Defs.’ 56.1 Resp. ¶¶ 294–295; Mr. C. 13.) Mr. C. further told Boyle that D.C. was hearing Jewish jokes from older students on the school bus, which transported both middle and high school students. (See Defs.’ 56.1 Resp. ¶ 296; Mr. C. 14.) During a follow-up call about this incident, Boyle informed Mr. C. that a girl involved in the harassment had been spoken to. (See Defs.’ 56.1 Resp. ¶ 267; Mr. C. 15.) However, Boyle had no response to Mr. C.’s question about how the District would handle “all the other kids that [we]re making Jewish jokes,” (Defs.’ 56.1 Resp. ¶ 298; Mr. C. 15), and also did not follow up with Mr. C. about addressing anti-Semitism in the school, (Mr. C. 57–58; Boyle 309). Boyle does not remember Mr. C. reporting harassment of D.C. by multiple children, nor any discussion with Mr. C. of systemic harassment or anti-Semitism, but instead recalls the incident involving “one kid on the bus.” (Boyle 167–70.) D.C. attempted to discuss this incident with Boyle, but Boyle “dismissed it so that he could reprimand [D.C.] for playing video games in the computer lab, when all the other students were also playing video games in the computer lab.” (Defs.’ 56.1 Resp. ¶ 301; D.C. 29.)
When D.C. was in seventh grade, students repeatedly sang and chanted a “song about stomping the niggers and killing the Jews and washing off their blood,” in both the school cafeteria near D.C.’s table, and on D.C.’s bus. (D.C. 73.) When students sang this “white power
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song” on D.C.’s bus, D.C. complained to the bus driver, but the white power chants continued—in fact, other students found out that D.C. had complained and the harassment “got worse.” (Defs.’ 56.1 Resp. ¶¶ 314–17; D.C. 72–77.)
When D.C. was in eighth grade, D.C. notified his science teacher of a “giant swastika . . . [approximately] a foot in diameter” in the boys’ bathroom. (Defs.’ 56.1 Resp. ¶¶ 306–07; D.C. 11–12.) The teacher saw the swastika, and it was removed. (See Defs.’ 56.1 Resp. ¶¶ 308-09; D.C. 11–13.) However, “a couple days” later, the swastika reappeared and D.C. reported it to his Spanish teacher. (Defs.’ 56.1 Resp. ¶¶ 309–10; D.C. 11–12.) Although D.C. could not be sure whether the second swastika he reported was removed, he testified that other swastikas in the bathroom were not removed. (See Defs.’ 56.1 Resp. ¶ 311; D.C. 13.)
When D.C. was in ninth grade, another student “would constantly berate [D.C],” telling him that D.C.’s “ancestors died in the Holocaust,” calling D.C. “ashes,” and pantomiming the blowing of dust off his hands while telling D.C. that he was “just ashes.” (Defs.’ 56.1 Resp. ¶¶ 56, 318; D.C. 69–70.) The same student would slap D.C. in the face as the student got off the bus and smirk at D.C. (See Defs.’ 56.1 Resp. ¶ 56; D.C. 70.) Other students joined in this harassment, slapping D.C. in the face and telling him “shut up, D., or I will burn you in an oven.” (Defs.’ 56.1 Resp. ¶ 57; D.C. 70.) The bus driver did nothing in response to this harassment, which continued throughout D.C.’s ninth grade year. (See Defs.’ 56.1 Resp. ¶¶ 319–20; D.C. 85–86.) D.C. also witnessed students in the school cafeteria and classrooms performing “Hitler salutes,” both to each other and to D.C. (Defs.’ 56.1 Resp. ¶ 321; D.C. 72–73, 85–86.) D.C. testified that these students “didn’t hide” their behavior and made “no attempt to conceal” it, and that D.C. “c[ouldn’t] really imagine [adults in the school] missing it.” (Defs.’ 56.1 Resp. ¶ 322; D.C. 86.)
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When D.C. was in tenth grade, a student in D.C.’s trigonometry class was “constantly making anti-Semitic jokes” and picking on another Jewish student. (Defs.’ 56.1 Resp. ¶ 323; D.C. 92–95.) D.C. confronted the student, who was sitting “in the first row” only “two feet” from the teacher, Ms. King. (Defs.’ 56.1 Resp. ¶¶ 324–328; D.C. 92–95.) Ms. King told the offending student to “stop it.” (Defs.’ 56.1 Resp. ¶ 328; D.C. 94.) Ms. King spoke with the offending student, during which time the student discussed “how he could kick [D.C.’s] ass.” (Defs.’ 56.1 Resp. ¶ 329; D.C. 94.) While Defendants do not dispute this exchange for the purposes of the instant motion, Ms. King claims to have provided the offending student with an oral warning to “make sure that [he] understood that he could not make comments like that at PBHS,” and she claims that the student “apologized to [Ms. King],” “indicated . . . that he would not do it again,” and “did not threaten D.C. during [the] conversation.” (Defs.’ 56.1 Resp. ¶ 328; Affidavit of Kelly King (“King Aff.”) ¶¶ 11–12 (Dkt. No. 82).)
Later, in Ms. King’s math class, another student shouted that another classmate was a “fucking jew” and smirked at D.C, but was not punished. (Defs.’ 56.1 Resp. ¶ 331; D.C. 94.) Defendants dispute this later incident, as Ms. King claims to have neither heard the statement nor had the statement reported to her—in fact, Ms. King claims that she “did not ever hear students make anti-Semitic jokes about any student” when D.C. was in her class. (Defs.’ 56.1 Resp. ¶ 323; King Aff. ¶¶ 3, 13, 14.)
During his time at Crispell and PBHS, D.C. witnessed “swastikas everywhere” and testified that they were so prominently displayed that “[i]t would be impossible for [teachers or administrators] to miss the swastikas.” (Defs.’ 56.1 Resp. ¶ 55; D.C. 11.) Specifically, D.C. witnessed swastikas in the school bathrooms and on binders, lockers, and desks. (See Defs.’ 56.1 Resp. ¶ 55; D.C. 13–14.) He also witnessed swastikas in the textbooks issued to students
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for use in class or available in the school library. (See D.C. 19.) He reported swastika-defaced textbooks to his teachers “a couple of times,” (Defs.’ 56.1 Resp. ¶ 303; D.C. 20), but Plaintiffs claim that the teachers and District officials never effectively addressed the problem and that swastikas remained in “a majority of the textbooks,” (Defs.’ 56.1 Resp. ¶ 305; D.C. 17–19). The District disputes the textbook grafitti, claiming that a search of “almost 500 textbooks” used for “at least ten years at Crispell” yielded “no such swastikas” and only two books with grafitti that were “even arguably anti-Semitic.” (Defs.’ 56.1 Resp. ¶¶ 304–05; Affidavit of John Boyle (“Boyle Aff.”) ¶¶ 14–16 (Dkt. No. 73).)
The harassment D.C. suffered throughout his time in the District made him feel unsafe, as though “[e]very day . . . was the wors[t] day of [his] life” and led D.C. to contemplate suicide. (Defs.’ 56.1 Resp. ¶¶ 66–67; D.C. 123–24.) After the bus incident in sixth grade, D.C. felt that “Mr. Boyle didn’t really care or couldn’t do anything about [the harassment],” and that “the system had apathy towards [D.C.], so [he] didn’t know who to talk to and [D.C.] thought [he] was on [his] own.” (Defs.’ 56.1 Resp. ¶ 302; D.C. 41.) Furthermore, “after alerting the teachers in eighth grade and seeing their . . . inability . . . to correct the problem,” D.C. felt “overwhelmed” and “did not report a lot of swastikas because [he] felt like [he] was fighting a losing battle and [that he] couldn’t make a difference.” (Defs.’ 56.1 Resp. ¶ 312; D.C. 20.)
2. Plaintiff T.E. T.E. is a female student who claims to have suffered anti-Semitic harassment and witnessed anti-Semitic incidents during her time at PBE and Crispell. Like D.C., T.E. witnessed swastika grafitti in the bathroom and on textbooks, desks, people, books, binders, notebooks, walls, and posters. (See Defs.’ 56.1 Resp. ¶ 33; T.E. Deposition Tr. (“T.E.”) 196, 267–68 (Wilson Decl. Ex. 8 (Dkt. No. 79)).)
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Several of the incidents about which T.E. complains occurred during the 2008–2009 school year, when T.E. was in fifth grade at PBE. (See Defs.’ 56.1 Resp. ¶ 68; T.E. 6, 17.) In March 2009, a student on T.E.’s bus called her a “Jew” and gave the middle finger to T.E. and her mother. (See Defs.’ 56.1 Resp. ¶ 96; T.E. 34.) Mrs. E. reported the incident to both the bus driver, (see T.E. 35), and PBE Principal Fisch, (see Defs.’ 56.1 Resp. ¶ 97; Fisch 111–13.) Fisch discussed the incident with the offending student, who admitted to calling T.E. “a Jew and dirty Jew and other epithets.” (Defs.’ 56.1 Resp. ¶ 98; Fisch 122.) The student was given a 50-minute “recess detention,” and his parents were called, but the student was not forced to apologize to T.E. or her mother, do any assignment, or be subject to suspension or after-school detention. (See Defs.’ 56.1 Resp. ¶ 99; Fisch 131–134.)
In April 2009, two of T.E.’s classmates—one of whom was the same student who had called T.E. a “Jew” on the bus—showed T.E. swastikas that were drawn in their planners. (See Defs.’ 56.1 Resp. ¶ 102; T.E. 25–30.) Mrs. E., T.E.’s mother, reported this incident to Fisch, who allegedly told her “[w]hat’s the big deal, they didn’t aim [the swastikas] towards [T.E.], they were just writing in their book.” (Defs.’ 56.1 Resp. ¶¶ 104–05; Mrs. E. Deposition Tr. (“Mrs. E.”) 56–57 (Wilson Decl. Ex. 9 (Dkt. No. 79)).) While Defendants do not dispute Plaintiffs’ description of this incident for the purposes of the instant motion, they do note that “T.E. testified that she happened to see the swastikas, not that [the students] showed them to her,” and also contest the date on which this incident occurred. (See Defs.’ 56.1 Resp. ¶ 102.) Defendants also note that, during Fisch’s deposition, he denied saying “[w]hat’s the big deal” to Mrs. E. (See Defs.’ 56.1 Resp. ¶ 105.) After Mrs. E. persisted, Fisch agreed to “talk with the kids.” (Defs.’ 56.1 Resp. ¶ 107; Mrs. E. 58.) He found swastikas in both students’ planners, spoke with the students for 15–20 minutes, and further spoke with Superintendent Steinberg,
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who did not recommend discipline. (See Defs.’ 56.1 Resp. ¶¶ 108–10, 113; Fisch 59–63; Steinberg Deposition Tr. (“Steinberg”) 133, 169–70 (Wilson Decl. Ex. 1 (Dkt. No. 79)).) The Parties dispute whether any “disciplinary consequences” resulted from this incident, as Defendants assert that an oral warning or conference with the Principal is considered discipline under the District’s Code of Conduct. (See Defs.’ 56.1 Resp. ¶ 111.) Fisch testified that he spoke with the offending students about “the significance of the swastika” and “what an offensive symbol it was to a particular group [including Jewish people].” (Fisch 62.)
Also in April 2009, T.E. saw a swastika carved into the slide on the PBE playground. (See Defs.’ 56.1 Resp. ¶ 76; T.E. 40–42.) Mrs. E. reported the swastika to Fisch no later than May 1, 2009. (See Defs.’ 56.1 Resp. ¶ 78; Fisch 152; Mrs. E. 73–75.) Fisch saw the swastika and claims to have put in a work order to have it removed. (See Defs.’ 56.1 Resp. ¶¶ 79–80; Fisch 155–59.) Mrs. E. claims to have raised the issue with Fisch in June 2009 and again in September 2009, however, the swastika was still not removed. (See Defs.’ 56.1 Resp. ¶¶ 82–84; Fisch 165–67; Mrs. E. 76.) Defendants dispute the June and September reports, as Fisch testified that he did not remember Mrs. E. discussing the issue with him on those dates. (See Defs.’ 56.1 Resp. ¶¶ 83–85; Fisch 166–68.) At oral argument before the Court on July 17, 2014, Defendants continued to dispute whether Mrs. E. notified Fisch two or four times about the swastika, but contend that this dispute is irrelevant for the purposes of their Motion for Summary Judgment, as Fisch filed a work order to have the grafitti removed. (See July 17, 2014 Tr. 15.) In any case, Plaintiffs allege that between April 2009 and April 2010, Fisch never checked to confirm that the swastika had been removed, nor did anyone tell him that the swastika was removed, rather he simply “believe[d] it had been taken care of.” (Defs.’ 56.1 Resp. ¶¶ 86–87; Fisch 162, 178–79.)
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On April 19, 2010, when T.E. was in sixth grade and enrolled at Crispell, Mrs. E. saw that the swastika was still present on the slide at PBE, took a picture, and emailed the photo to the District’s Assistant Superintendent. (See Defs.’ 56.1 Resp. ¶¶ 88, 140; Maazel Decl. Ex. 19; Mrs. E. 100–05, 129–30.) Defendants do not dispute this account, for the purposes of the instant Motion, but note that it is not clear that the swastika observed was the same one that existed in April 2009. (See Defs.’ 56.1 Resp. ¶ 88; Fisch 179; July 17, 2014 Tr. 11.) In the same email, Mrs. E. noted that students on T.E.’s bus had been making “swastika symbols with their hands,” performing Hitler salutes, and discussed “do[ing] something . . . to celebrate” the “anniversary of Hitler’s birthday.” (Defs.’ 56.1 Resp. ¶ 141; Maazel Decl. Ex. 19; Mrs. E. 102, 130.) The Assistant Superintendent forwarded Mrs. E.’s email to Fisch, Hopmayer, and Boyle and suggested that Fisch get the swastika removed. (See Defs.’ 56.1 Resp. ¶¶ 89–90; Fisch 169–73.) Fisch replied to suggest that “we go out and look at [the swastika grafitti] on cannabis culture day[, April 20, 2010].” (Defs.’ 56.1 Resp. ¶ 90; Fisch 173–76.) Fisch and the Assistant Superintendent then inspected the slide on April 20, 2010 and found the swastika. (See Defs.’ 56.1 Resp. ¶¶ 91–92; Fisch 177–78.) Fisch conducted no investigation into the origin of the grafitti and no one was disciplined as a result. (See Defs.’ 56.1 Resp. ¶ 95; Fisch 163.)
Despite the fact that the Assistant Superintendent forwarded Mrs. E.’s April 19, 2010 email reporting students making “swastika symbols with their hands,” saluting Hitler, and planning to do something to “celebrate” the “anniversary of Hitler’s Birthday,” to Fisch, Boyle, Hopmayer, and Peters, (see Defs.’ 56.1 Resp. ¶¶ 141–42; Maazel Decl. Ex. 19; Mrs. E. 102; Fisch 181–82), nobody interviewed any students on T.E.’s bus or asked T.E. which students were making the offensive symbols and salutes, (see Defs.’ 56.1 Resp. ¶¶ 143–44; Carbone Deposition Tr. (“Carbone”) 297–99, (Wilson Decl. Ex. 2 (Dkt. No. 79)).). Defendants do not
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dispute that Fisch, Boyle, Peters, and Hopmayer did nothing in response to Mrs. E.’s complaint. (See Defs.’ 56.1 Resp. ¶¶ 146–49; Fisch 185; Boyle 181–192; ); Peters Deposition Tr. (“Peters”) 269–79 (Wilson Decl. Ex. 6 (Dkt. No. 79)); Hopmayer 308–09, 313.)
T.E. did not attend school on April 20, 2010, but when she boarded the bus the next day, the driver “yelled at [her] in front of everybody on the bus” and “called [her] a liar.” (Defs.’ 56.1 Resp. ¶¶ 151–52; T.E. 56, 62–63.) When T.E. took out her phone to contact Mrs. E., the driver told T.E. to “put [her] phone away,” was “screaming in [her] face,” and told T.E. to “stop crying.” (Defs.’ 56.1 Resp. ¶ 153; T. E. 65.) After this incident, T.E.’s mother drove T.E. to school for the rest of the year. (See Defs.’ 56.1 Resp. ¶ 154; T.E. 66.)
During T.E.’s seventh grade year, the anti-Semitic harassment continued. In April 2011, Mrs. E. sent an email to Winter, Steinberg, and others explaining that a student in T.E.’s English class had called T.E. “[c]rispy” and said that “she should have been burned.” (Defs.’ 56.1 Resp. ¶ 168; Steinberg 263; Maazel Decl. Ex. 8.) T.E. also reported similar comments made by another student to Winter, specifically that T.E. “[w]as crispy” and “should have been burned a while ago.” (Defs.’ 56.1 Resp. ¶ 169; T.E. 115.)6 The Parties dispute whether discipline resulted from the reporting of these incidents. Defendants claim that Winter “investigated by speaking with T.E.” and the offending students, and that Winter gave one student an oral warning and counseled him about the statement. (Defs.’ 56.1 Resp. ¶ 169.) Defendants further claim that Winter determined that the statement by the second student had been “made eight months before the report” and that “T.E. had called him ‘fat,’” but otherwise do not dispute Plaintiffs’ assertion that no discipline resulted from this incident. (Id.) Moreover, Defendants do not dispute
6 Defendants’ 56.1 Response misquotes T.E.’s testimony. The Court quotes directly from the transcript of T.E.’s testimony.
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Plaintiffs’ assertion that when Mrs. E. told Winter that T.E. was “coming home on a daily basis upset and afraid to go to school . . . that there [were] swastikas everywhere [including] in her classroom, [and] that its being ignored, th[at] kids are allowed to treat her this way,” Winter responded by saying that “anti-Semitism is prevalent in the community . . . and that it’s rather hard to stop something that’s inbred in the community.” (Defs.’ 56.1 Resp. ¶ 169(d–e); Mrs. E. 117–19.)
On April 28, 2011, in T.E.’s math class, one student said that another student “didn’t know something because he was a Jew.” (Defs.’ 56.1 Resp. ¶ 207; T.E. 160.) Defendants dispute whether this incident is reflected in Winter’s notes and whether T.E.’s testimony refers to the Amended Complaint or Winter’s notes, but Defendants do not dispute that the incident occurred. (See Defs.’ 56.1 Resp. ¶ 207.)
In May 2011, T.E. reported a swastika on her desk to her music teacher, who “immediately” took the desk out of the room and notified Winter. (Defs.’ 56.1 Resp. ¶ 175; T.E. 167–68.) The Parties dispute whether the swastika remained on the desk for “two weeks,” as T.E. testified, or was promptly removed by Winter and a custodian the same day, as Winter testified. (Defs.’ 56.1 Resp. ¶ 175; T.E. 167–68; Winter Deposition Tr. (“Winter”) 187–88 (Wilson Decl. Ex. 3 (Dkt. No. 79)).) Regardless, Defendants do not dispute that no student was disciplined as a result of the graffiti, nor that T.E.’s next music desk also was defaced with a swastika. (See Defs.’ 56.1 Resp. ¶ 175; T.E. 170.)
Around the same time, T.E. reported anti-Semitic grafitti in the boys’ bathroom to Winter. (See Defs.’ 56.1 Resp. ¶ 176; T. E. 242–43.) The graffiti read “[f]uck the Jews” and also featured a Star of David with a male eighth-grade student’s name inside. (See Defs.’ 56.1 Resp. ¶ 176; T.E. 242.) In response to T.E.’s reporting, Winter told her that she “was looking for
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the trouble now.” (Defs.’ 56.1 Resp. ¶ 176; T.E. 243.) The Parties dispute whether any investigation resulted from this report, but Winter testified that he spoke with the male eighthgrade student, who reported that he had not experienced any anti-Semitism, apart from the grafitti. (See Defs.’ 56.1 Resp. ¶ 176(d); Winter 426.) Defendants do not dispute Plaintiffs’ contention that no discipline was imposed with respect to this grafitti. (Defs.’ 56.1 Resp. ¶ 175; Winter 425–26.)
By May 24, 2011, T.E. was “stressed every single day going to school . . . to the point [where T.E. was] upset every day [when she came] home and complained how terrible it was at school.” (Defs.’ 56.1 Resp. ¶ 209; Mrs. E. 173–75.) Mrs. E. emailed Winter, Steinberg, Carbone, Boyle, and PBCSD Board member Eric Meier (“Meier”), telling them that the harassment of her daughter over a period of three years “has escalated every year to the point that [T.E.] now begs me to not have to return to this school.” (Defs.’ 56.1 Resp. ¶¶ 211–12; Maazel Decl. Ex. 22; Winter 182.) In fact, Mrs. E. had multiple communications with Winter about anti-Semitic harassment, (see Defs.’ 56.1 Resp. ¶ 184; Winter 181, 388–89), and Winter admitted to being informed of “18 or more anti-Semitic incidents” in the 2010–2011 school year, (Defs.’ 56.1 Resp. ¶ 185; Winter 400).
In response to Mrs. E.’s complaints, Mr. Winter told her “that [T.E. and O.C.] would not have [had to] know about most of the Swastikas if they had not asked people to inform them if they saw any,” and that if they “weren’t asking to be shown the offenses they wouldn’t be as stressed /upset by them.” (Defs.’ 56.1 Resp. ¶¶ 214–15; Maazel Ex. 24; see Winter 208–09.) Mrs. E. memorialized Winter’s statements in a May 26, 2011 email to Winter, to which she copied Steinberg, Carbone, Boyle, Meier, PBCSD Board member Lloyd Greer (“Greer”), and
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others. (See Defs.’ 56.1 Resp. ¶ 216; Maazel Decl. Ex 24.)7 On May 31, 2011, Mrs. E. emailed Winter, Steinberg, Carbone, Boyle, Meier, and others,
relaying an incident that T.E. witnessed on the bus in which one student had drawn a picture on his stomach and “said it is a Hasidic Jew, so let’s shove pennies in his mouth.” (Defs.’ 56.1 Resp. ¶ 213; Maazel Decl. Ex. 25; T.E. 161–65.)8 Defendants do not dispute that the offending student was not disciplined for this incident, though they note that he refused to return to the school and withdrew from the District. (See Defs.’ 56.1 Resp. ¶ 213.)
Also on May 31, 2011, Mrs. E. emailed Winter, Steinberg, Carbone, Boyle, Meier, and others to tell them that she had received “a frantic message from [T.E.] regarding [a PBHS student on her bus who] has a history of chanting white power and pro[-]Hitler statements.” (Defs.’ 56.1 Resp. ¶ 218; Maazel Decl. Ex. 26; T.E. 152–53.) This email stated that the older student “pushed [T.E.] in [a seat] and sat with her” and said that when T.E. “is in 8th grade that she is going to get her ass kicked.” (Maazel Decl. Ex. 26.) Neither Winter, Steinberg, Carbone, nor Boyle spoke with the offending student, interviewed T.E. or witnesses about the incident, imposed any discipline, or stopped the offending student from riding the bus with T.E. (See Defs.’ 56.1 Resp. ¶ 219.) Defendants note that “[n]o punishment could be imposed on [the offending student] because he was graduating and no longer rode the bus.” (Id.) T.E. testified that she witnessed students making Hitler salutes and singing white power chants on the school
7 Defendants’ 56.1 Response acknowledges that Mrs. E. sent the May 26, 2011 email to “others,” but does not mention Board member Lloyd Greer by name. The copy of the email and Mrs. E’s testimony, however, supports that Greer was one of the individuals that Mrs. E. copied on the email. (Maazel Decl. Ex. 24; Mrs. E. 168–69).
8 Although Mrs. E’s email states that one student was involved in the relevant incident, T.E. testified that one student “lifted up his shirt and said ‘[l]ook at the Hasidic Jew,’” and then another student said, “‘[l]et’s shove pennies in its mouth.’” (T.E. 161–65).
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bus on a “daily” basis. (Defs.’ 56.1 Resp. ¶ 34; T.E. 51, 90, 197–98.) When T.E. was in sixth or seventh grade at Crispell, Mrs. E. had “a conversation with
Mr. Steinberg regarding what was going on in the schools and how upset [T.E.] was.” (Defs.’ 56.1 Resp. ¶ 201; Mrs. E. 109.) Mrs. E. told Steinberg about the swastika grafitti “on the bathroom walls,” “on the desks,” “on the lockers,” and “on people’s notebooks,” and expressed that T.E. “does not feel comfortable here.” (Defs.’ 56.1 Resp. ¶¶ 202–03; Mrs. E. 110.) Steinberg responded by saying that “when [he] had this issue when [his] kids were in school, [he] moved.” (Defs.’ 56.1 Resp. ¶ 204; Mrs. E. 110.)
When T.E. was in eighth grade, she continued to hear anti-Semitic slurs “on almost a daily basis” and recalls that “people would use Jew like they would use the N word.” (Defs.’ 56.1 Resp. ¶ 264; T.E. 196.) She also saw swastikas “everywhere” in the school, (Defs.’ 56.1 Resp. ¶ 265; T.E. 196), though Defendants dispute this point based on T.E.’s failure to provide specifics about this grafitti upon cross-examination, (see Defs.’ 56.1 Resp. ¶ 265; T.E. 276–80). T.E. also recalls people “salut[ing] Hitler all the time.” (Defs.’ 56.1 Resp. ¶ 266; T.E. 197.)
At some point in T.E.’s eighth grade year, she noticed swastika graffiti in one of the school bathrooms. (See Defs.’ 56.1 Resp. ¶ 267; T.E. 196–97.) T.E. “told [Boyle] exactly where it was,” but Boyle claimed not to see it. (Defs.’ 56.1 Resp. ¶ 267; T.E. 196.) When T.E. went in the bathroom later, it was still there. (See Defs.’ 56.1 Resp. ¶ 268; T.E. 196–97.)
On January 23, 2012, during T.E.’s math midterm examination, she witnessed several students “saluting Hitler.” (Defs.’ 56.1 Resp. ¶ 272; T.E. 213–15.) The Parties dispute whether T.E. reported this incident to the Crispell Assistant Principal Christopher Mummery, (see Defs.’ 56.1 Resp. ¶ 273; T.E. 216; Affidavit of Christopher Mummery (“Mummery Aff.”) ¶ 18 (Dkt. No. 75)), but do not dispute that no investigation was conducted or that nobody was disciplined
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with respect to this incident, (see Defs.’ 56.1 Resp. ¶ 274). On January 24, 2012, a student sitting in the front of T.E.’s health class made an anti-
Semitic “joke” about Jews and concentration camps. (See Defs.’ 56.1 Resp. ¶ 275; T.E. 216–17; Mummery Aff. ¶ 20.) T.E. reported this statement to Mummery, who met with the student and gave him two lunch detentions. (See Defs.’ 56.1 Resp. ¶ 276, 278; T.E. 218; Mummery Aff. ¶¶ 20–22.) Mummery also asserted that he “directed [the offending student] to write an essay about the Holocaust” as part of his punishment. (Mummery Aff. ¶ 21.)
On January 25, 2012, a student threw a coin at T.E. in the Crispell hallway. (See Defs.’ 56.1 Resp. ¶¶ 41, 279; T.E. 220–28.) Defendants concede that this incident was reported to Boyle, but state that the students Boyle questioned disputed T.E.’s accusation. (See Defs.’ 56.1 Resp. ¶ 280; Boyle 85–86.)
The same day, T.E. told her mother that “if she had to go back to the school ever again she was going to have a nervous breakdown.” (Defs.’ 56.1 Resp. ¶ 281; Mrs. E. 201.) Mrs. E. took T.E. to Mobile Mental Health, to meet with a counselor “who said that . . . [Crispell] was [not] a healthy place for her.” (Defs.’ 56.1 Resp. ¶ 282; Mrs. E. 201.) T.E. subsequently left PBCSD and was home schooled. (See Defs.’ 56.1 Resp. ¶ 283; T.E. 235–36; Mrs. E. 201–02.)
3. Plaintiff O.C. O.C. is a female student, the sister of D.C., and a classmate of T.E., who also claims to have suffered anti-Semitic harassment during her time at PBE, Crispell, and PBHS. O.C. testified to observing swastika grafitti in the bathrooms and on books, desks, her yearbook picture, her school locker, binders, windowsills, and on the cafeteria door. (See Defs.’ 56.1 Resp. ¶ 47; O.C. Deposition Tr. (“O.C.”) 52–54, 84, 89, 107–08, 119–20, 137, 215–16 (Wilson Decl. Ex 10 (Dkt No. 79)).)
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During O.C.’s sixth grade year, 2009–2010, O.C. suffered several incidents of harassment. When her class was watching a Holocaust video, a student made “his hand in the shape of a gun[,] [pointed it] at [O.C.’s] head[,]” and, when T.E. asked what he was doing, replied that “he was killing Jews.’” (Defs.’ 56.1 Resp. ¶ 127; O.C. 9; T.E. 77.) T.E. and O.C. reported this to their teacher, who spoke with the offending student in the hallway. (See Defs.’ 56.1 Resp. ¶¶ 128–29; O.C. 9–12.) When the student returned to class, he was crying. (See Defs.’ 56.1 Resp. ¶ 129; O.C. 12.) However, the same student continued to “mak[e] ethnic slurs towards [O.C.],” even after this incident. (Defs.’ 56.1 Resp. ¶ 130; O.C. 13.)
The same year, while at a picnic with her class, another student “found a penny” in the volleyball pit, “picked it up and said ‘[l]ook I am being a Jew.’” (Defs.’ 56.1 Resp. ¶ 46; O.C. 14.) When O.C. told the student that his statement was offensive, “he took the sand and smashed it in [O.C.’s] hair.” (Defs.’ 56.1 Resp. ¶ 46; O.C. 14–15.) A fight between O.C.’s thenboyfriend and the offending student resulted. (See Defs.’ 56.1 Resp. ¶ 131; O.C. 14–18; T.E. 81–84.) Mrs. E. was told that the anti-Semitism that started [the fight] “didn’t matter” and that the school would only look into the fight. (Mrs. E. 113.)
O.C. also testified another student threw pennies at her “during recess for an entire month” in sixth grade. (Defs.’ 56.1 Resp. ¶ 49: O.C. 79–80.) At some point that year, Mr. C. reported to Peters that O.C. had pennies thrown at her and that she had been subjected to antiSemitic jokes. (See Defs.’ 56.1 Resp. ¶ 133; Mr. C. 15–18.) Peters told Mr. C. that he would “look into it,” (Defs.’ 56.1 Resp. ¶ 134; Mr. C. 18–19), but Peters does not remember Mr. C. ever complaining about anti-Semitism at Crispell, (see Defs.’ 56.1 Resp. ¶ 133; Peters 214).
When O.C. was in seventh grade (2010–2011), students called her “Christ killer” and “dirty Jew,” and told anti-Semitic jokes, including “what is the difference between a pizza and a
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Jew[?] [W]hen it goes in the oven a pizza doesn’t scream.” (Defs.’ 56.1 Resp. ¶ 48; O.C. 99–100.)
On April 14, 2011, O.C. told Boyle that her best friend had been held down and that two students had drawn a swastika on her friend’s face. (See Defs.’ 56.1 Resp. ¶ 170; O.C. 68; Boyle 7.) Defendants dispute several aspects of this incident, as Boyle testified that he spoke with the student involved, who said that the students were “joking” and that the incident was not meant to be offensive. (Defs.’ 56.1 Resp. ¶ 170(a); Boyle 97.) When O.C. spoke with Boyle, she was crying, and O.C. testified that Boyle asked her why she found the incident offensive if it wasn’t directed toward her. (See Defs.’ 56.1 Resp. ¶ 170(b); O.C. 68.) Defendants dispute this exchange, as Boyle testified that he never made such a statement to O.C. and instead testified that he remembered “saying it’s offensive to everybody.” (Defs.’ 56.1 Resp. ¶ 170(c); Boyle 198.) On a separate occasion in seventh grade, two students held O.C.’s hands behind her back at recess and “tried to shove a quarter down [her] throat.” (Defs.’ 56.1 Resp. ¶ 45; O.C. 63–64.) On April 27, 2011, a student called O.C. a “F’ing Jew.” (Defs.’ 56.1 Resp. ¶ 172; Winter 95.) Winter gave this student two hours of detention and his parents were notified. (See Defs.’ 56.1 Resp. ¶ 172(a); Winter 110; Sneed Decl. Ex. EE (Dkt. No. 77).)
One day in seventh grade English class, O.C. saw a swastika on her desk and reported it to Winter. (See Defs.’ 56.1 Resp. ¶ 174; O.C. 43–44; Winter 89–90.) The swastika was removed, but “a different swastika” appeared on her desk “[t]he next day.” (Defs.’ 56.1 Resp. ¶ 174; O.C. 45–46.) O.C. again reported it to Winter and, the following day, another student told O.C. that there were “three swastikas on [O.C.]’s desk with [O.C.’s] name” in the swastikas and “die Jew” or “damn Jew.” (Defs.’ 56.1 Resp. ¶ 174; O.C. 45–46, 53–54.) O.C. asked her English teacher if she could see Winter, and the teacher “made a speech in front of the class” to
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the effect that students “shouldn’t get up during class” and that O.C. should “sit at a different desk.” (Defs.’ 56.1 Resp. ¶ 174(h); O.C. 49.) O.C. later reported this incident to Winter because she “felt threatened and [she] wanted to figure out who did it.” (Defs.’ 56.1 Resp. ¶ 174; O.C. 47.) O.C. testified that Winter told her English teacher “to just watch the desk,” (Defs.’ 56.1 Resp. ¶ 174(j); O.C. 48), though Defendants dispute this and suggest that Winter conferred with the teacher, looked at seating charts, and spoke to O.C. and the student who witnessed the grafitti, but could not determine who was responsible, (see Defs.’ 56.1 Resp. ¶ 174(j); Winter 92–93). The Parties dispute whether O.C. later told Winter that a student had admitted to being the perpetrator, as there is no evidence that O.C. told Winter that the student had confessed, and Winter was under the impression that the student was not responsible. (See Defs.’ 56.1 Resp. ¶ 174(k); O.C. 48; Winter 93.)
During their seventh grade year, T.E. and O.C. regularly reported anti-Semitic harassment to Winter. (See Defs.’ 56.1 Resp. ¶ 182; Winter 60–61, 70–71, 77, 88, 95, 97, 113, 141, 189, 303-04, 393–94, 425.) The girls complained to Winter so frequently that he told them to “stop coming as often as [they] did,” and that they “were looking for trouble.” (Defs.’ 56.1 Resp. ¶ 159; T.E. 102.) In response, T.E. and O.C. began writing down each incident of antiSemitic harassment and “bring[ing] it to [Winter] at the end of the week,” to which Winter responded that they “were now just looking for trouble and that [they] were causing [their] own problems.” (Defs.’ 56.1 Resp. ¶ 160; T.E. 102–03.)
The same year, Mr. C. had “at least three phone conversations” with Winter about the anti-Semitic harassment that O.C. suffered, specifically that O.C. was “called Christ killer, dirty Jew, stinking Jew, ha[d] pennies thrown at her and . . . [found] swastikas,” including the one near O.C.’s yearbook picture. (Defs.’ 56.1 Resp. ¶¶ 177–78; Mr. C. 20–22.) In response, Winter
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said that he would “deal with it on an individual basis.” (Defs.’ 56.1 Resp. ¶ 179; Mr. C. 21.) Mr. C. told Winter that “this isn’t an individual problem, this is systemic, and . . . a much broader problem and you cannot deal with it individually.” (Defs.’ 56.1 Resp. ¶ 180; Mr. C. 22.) The Parties dispute whether Winter did “anything to address . . . systemic anti-Semiti[c] harassment and bullying in the school.” (Defs.’ 56.1 Resp. ¶ 181; Mr. C. 59.) Defendants submit that, during Winter’s year as Crispell Assistant Principal, “there were three anti-bullying assemblies, a District[-]wide anti-bullying seminar for parents in June 2011, and bullying and anti-Semitism were addressed within the curriculum, including through a Holocaust unit in eighth grade.” (See Defs.’ 56.1 Resp. ¶ 181; Affidavit of Joan Carbone (“Carbone Aff.”) ¶¶ 12–13, 30 (Dkt. No. 51).)
On June 15, 2011, a student showed T.E. a swastika “made out of pipe cleaner” and told T.E. that he was going to give it to O.C. (Defs.’ 56.1 Resp. ¶ 251; O.C. 55–56, T.E. 95–96, Winter 303–06). During the last week of seventh grade, O.C. reported to Winter that a swastika had been drawn near her photo in another student’s yearbook. (See Defs.’ 56.1 Resp. ¶ 253; O.C. 84–85; Winter 393–97.) Winter documented the name of the student who had drawn the swastika in his notes and crossed out the symbol with a marker. (See Defs.’ 56.1 Resp. ¶ 253(b); O.C. 85; Winter 393). The Parties dispute whether the District imposed discipline on the student responsible for the drawing, beyond merely speaking with the student, but Winter testified that he imposed a two-day out of school suspension for both the pipe-cleaner and yearbook incident, and wrote a letter to the student’s mother about the suspension and misconduct. (See Defs.’ 56.1 Resp. ¶ 253(c); Winter 305–06).
When O.C. was in eighth grade (2011–2012), she reported a drawing of a swastika and the word “gay” on a poster of President Obama to two teachers. (See Defs.’ 56.1 Resp. ¶ 284,
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OC 103–04; TE 269; Mummery Aff. ¶ 8.) The Parties dispute whether O.C. reported the swastika to Mummery once or twice before he removed it. (See Defs.’ 56.1 Resp. ¶ 285; O.C. 104; Mummery Aff. ¶¶ 7–9.) The Parties also dispute whether any action was taken or whether an investigation was made to determine who had defaced the poster. (See Defs.’ 56.1 Resp. ¶ 286; Mummery Aff. ¶ 8; Boyle 42.)
O.C. also told Mummery that a student had drawn a swastika on her locker. (See Defs.’ 56.1 Resp. ¶ 287; O.C. 90–93.) Mummery testified that the grafitti was a Star of David rather than a swastika, but, regardless, he removed the grafitti from O.C.’s locker and had the offending student perform research and write an essay about ths history of the Star of David. (See Defs.’ 56.1 Resp. ¶ 288; Mummery Aff. ¶¶ 9–10 and Ex. B.)
The anti-Semitic incidents continued when O.C. enrolled in ninth grade at PBHS. She heard “ethinic slurs” and “Jew” in the PBHS hallways “every day.” (Defs.’ 56.1 Resp. ¶ 44; O.C. 217–18.) She was called a “f’ing Jew,” (Defs.’ 56.1 Resp. ¶ 289; O.C. 211–12), and also witnessed students threaten to hold another student down so that they could draw a swastika on the student, (see O.C. 213–15). In April 2013, O.C. noticed a swastika on a door in the cafeteria. (See Defs.’ 56.1 Resp. ¶ 47(k), 289; O.C. 215.) When she reported it to a security guard, he told her that the swastika had “been there five years.” (Defs.’ 56.1 Resp. ¶ 47(k), 289; O.C. 215–16.) After O.C. reported the swastika on the door, PBHS Principal Hopmayer asked the security guard to investigate but ultimately could not determine who drew the swastika; however, Hopmayer instructed a school custodian to remove it from the door. (See Defs.’ 56.1 Resp. ¶ 47(k); Hopmayer 375–84.)
4. The District’s Response In response to Plaintiffs’ allegations, the District contends that it responded appropriately
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to each of the incidents of which it was aware. Moreover—and in response to Plaintiffs’ allegation that the District never took widespread steps to address anti-Semitism among PBCSD’s students—the District lists a number of measures it took to prevent harassment and bullying generally. With respect to Plaintiffs D.C., T.E., and O.C., the District points to two assemblies held at these Plaintiffs’ schools.
In May 2009, when T.E. and O.C. were in fifth grade at PBE, Fisch held an assembly to discuss the “bullying problem” in the fifth grade class and sent a letter to students’ parents informing them about the consequences of “any verified complaints about bullying behavior . . . from any school related area including the bus.” (Defs.’ 56.1 Resp. ¶ 122; Fisch 139–42.) Fisch did not discuss anti-Semitism in the assembly, despite the fact that the assembly was held after the incidents in PBE involving swastikas on a slide and in student notebooks, and after a student called T.E. a “dirty Jew” on the bus. (Defs.’ 56.1 Resp. ¶ 122; Fisch 296–97.)
On June 10, 2011, when T.E. and O.C. were in seventh grade, Crispell held an assembly in which a Holocaust survivor addressed a group of seventh grade students. (See Defs.’ 56.1 Resp. ¶¶ 222–23; Boyle 47.) While Defendants do not dispute Plaintiffs’ contention that “no one addressed anti-Semitism in Pine Bush [S]chools” at this assembly, (Defs.’ 56.1 Resp. ¶ 223; Steinberg 264), Defendants note that both Winter and Steinberg spoke at the assembly and that Boyle testified that “Winter spoke of anti-Semitism or of discrimination,” (Defs.’ 56.1 Resp. ¶ 223; Boyle 158–59). While the Holocaust survivor spoke, one student told T.E. that “that was fucking stupid.” (Defs.’ 56.1 Resp. ¶ 224; T.E. 255; Winter 294.) Winter spoke with the student and made him apologize to the guest speaker. (See Defs.’ 56.1 Resp. ¶ 224; Winter 294–95.) Another student was removed from the assembly because she was “talking nonstop.” (Defs.’ 56.1 Resp. ¶ 223; O.C. 71; Winter 292–93.) After the assembly, O.C. overheard people saying
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that the assembly was a waste of their time. (See Defs.’ 56.1 Resp. ¶ 226; O.C. 71.) On June 7, 2011, Mrs. E. and Mr. C. met with Steinberg, Greer, and others. (See Defs.’
56.1 Resp. ¶ 228; Steinberg 268–69.) In this meeting, the parents told Steinberg about the swastikas, name-calling, Holocaust “jokes,” and that students had called their children “ashes” and “crispy.” (Defs.’ 56.1 Resp. ¶ 229; Mr. C. 46, 60.) They also showed Steinberg pictures of some of the swastikas that T.E. and O.C. had taken, and told Steinberg that the girls were “singled out and being bullied for being Jewish” and that T.E. and O.C. did not feel safe and wanted “to go to another school system” if Steinberg “c[ouldn’t] fix the problem.” (Defs.’ 56.1 Resp. ¶¶ 230–32; Mr. C. 46.) Mr. C. asked Steinberg to invite groups to school such as the AntiDefamation League and to require online classes for the teachers. (Defs.’ 56.1 Resp. ¶ 234; Mr. C. 42–43.) The parents also requested that Steinberg allow T.E. and O.C. to transfer to another middle school and provide transportation to the new school. (See Defs.’ 56.1 Resp. ¶ 235; Mr. C. 49–50; Steinberg 271; Boyle 269–70.) Steinberg told them that “he didn’t know that the school would pay for that.” (Defs.’ 56.1 Resp. ¶ 236; Mr. C. 50.)
On June 14, 2011, Mr. C. emailed Steinberg requesting that he “[p]lease talk to the girls SOON [as t]hey continue to hear slurs on a daily basis.” (Defs.’ 56.1 Resp. ¶ 247; Maazel Decl. Ex. 28; Steinberg 284–85.) The same day, Mrs. E. emailed Winter, Steinberg, and others to say that she had “been reporting these issues . . . for 3 years and there has been no change,” and that the “current system of handling it on a case basis is not working. It has increased to being a daily occurrence.” (Defs.’ 56.1 Resp. ¶ 249; Maazel Decl. Ex. 29; Steinberg 287–88.) The following day, Mrs. E. emailed Winter, Steinberg, and others and said that “[w]e are still waiting for Mr. Steinberg to go speak with the girls.” (Defs.’ 56.1 Resp. ¶ 250; Maazel Decl. Ex. 29.)
On June 17, 2011, Steinberg met with T.E. and O.C. (See Defs.’ 56.1 Resp. ¶ 240; 24

Steinberg 285.) In this meeting, the girls asked to transfer to a different middle school. (See Defs.’ 56.1 Resp. ¶ 241; Steinberg 315; Boyle 269, O.C. 73–78; T.E. 120–21, 177–79.) The Parties dispute whether Steinberg refused to pay for a bus for O.C. and T.E. (See Defs.’ 56.1 Resp. ¶ 242; O.C. 73–78; T.E. 120–21; 177–79; Boyle 269–70; Steinberg 315–16; Mrs. E. 187–88.) Defendants submit that Steinberg informed Mrs. E. in June 2011 that T.E. and O.C. could transfer but that he did not have bus transportation available at the time, and requested that Mrs. E. “speak [to] him over the summer.” (Defs.’ 56.1 Resp. ¶ 242; Steinberg 315–17.) Steinberg claims that he “never heard from [Mrs. E.] after that meeting.” (Defs.’ 56.1 Resp. ¶ 242; Steinberg 316.)
The Parties dispute whether the District’s schools had any anti-bullying efforts in place that specifically addressed anti-Semitism prior to June 2011. (See Defs.’ 56.1 Resp. ¶¶ 383–85; Steinberg 234–35; Fisch 147; Boyle 47.) The District contends that its anti-bullying and tolerance programs and curriculum were “geared toward tolerance for all races and religions and sometimes specifically mentioned anti-Semitism.” (Defs.’ 56.1 Resp. ¶¶ 383–85; Carbone Aff. ¶¶ 1–36 (cataloguing the District’s anti-bullying programs).) The District further argues that anti-Semitism is discussed in the District curriculum. (Defs.’ 56.1 Resp. ¶¶ 383–85; Carbone Aff. ¶¶ 11–13.)
The Parties also dispute whether any letter was ever sent to parents or students about anti-Semitic conduct in a PBCSD school, (Defs.’ 56.1 Resp. ¶ 386), though Defendants dispute this point by referring to letters sent to individual students’ parents, explaining that such letters are always sent to students who receive suspensions, (see Defs.’ 56.1 Resp. ¶ 386; Maazel Decl. Exs. 38, 39). As an example, Defendants cite the letter sent to the parents of the student who made a swastika out of pipe cleaners and showed it to T.E. (See Maazel Decl. Ex 38.)
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In addition, the Parties dispute whether any District employee met with parents as a group to discuss anti-Semitism, (see Defs.’ 56.1 Resp. ¶ 387; Fisch 235; Winter 431–32), though the District argues that a meeting between Steinberg, Mr. C., and Mrs. E. during which they discussed the harassment of T.E. and O.C. constituted such a meeting, (see Defs.’ 56.1 Resp. ¶ 387; Steinberg 268–69). Regardless, Defendants concede that no survey was conducted to study anti-Semitism or bullying in the District’s schools. (See Defs.’ 56.1 Resp. ¶ 346; Steinberg 388; Fisch 234; Boyle 327.) The Parties also dispute whether administrators and teachers were trained about anti-Semitic bullying issues, (see Defs.’ 56.1 Resp. ¶ 389; Boyle 195–96, 301–02; Winter 172; Fisch 236, 301–02), with Defendants claiming that the District provided training on hate crimes and dealing with anti-Semitism in the classroom during the Superintendent’s Conference Days in September 2009, (see Defs.’ 56.1 Resp. ¶ 389, Carbone Aff. ¶¶ 30(m),(o).)
B. Procedural History On March 28, 2012, Plaintiffs filed their Initial Complaint. (See Dkt. No. 1). Plaintiffs filed their Amended Complaint on January 7, 2013. (See Dkt. No. 25.) In their Amended Complaint, Plaintiffs assert violations of their rights under Title VI of the Civil Rights Act against the District. They also assert violations of their right to equal protection under the U.S. Constitution and violations of New York Civil Rights Law against the District and several district administrators, specifically PBCSD Superintendent Philip G. Steinberg, former Principal of Pine Bush Elementary Steve Fisch, and former Assistant Principal of Crispell Middle School Eric Winter, all in their individual capacities. (See id.) In addition, Plaintiffs name several individuals in their official capacities as school administrators, specifically Steinberg, Hopmayer, Boyle, and Fisch. Defendants filed an Amended Answer on April 5, 2013. (See Dkt. No. 37.) On
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December 6, 2013, Defendants filed their Motion for Partial Summary Judgment (“Defs.’ Mem.”) and supporting papers, (see Dkt. Nos. 50–57), to which Plaintiffs timely responded with a Memorandum of Law in Opposition (“Pls.’ Mem.”) and supporting papers. (See Dkt. Nos. 63, 70–71.) Defendants filed a Reply Memorandum of Law in Support (“Defs.’ Reply”) along with supporting documents on February 21, 2014. (See Dkt. Nos. 81–84.) In addition to the Parties’ filings, on January 15, 2014, the United States Department of Justice requested leave to file a statement of interest in this Action. (See Dkt. No. 61.) The Court granted this request, (see id.), and the Department filed its Statement of Interest of the United States on January 24, 2014. (See Dkt. No. 67.) The Court heard oral argument on July 17, 2014.
II. DISCUSSION A. Standard of Review Summary judgment shall be granted where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir. 2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and . . . resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper Saddle River, N.J. v. Rockland Cnty. Sewer Dist. No. 1, No. 07-CV-109, 2014 WL 1621292, at *12 (S.D.N.Y. Apr. 22, 2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of
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proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion . . . , [a nonmovant] need[s] to create more than a metaphysical possibility that his allegations were correct; he need[s] to come forward with specific facts showing that there is a genuine issue for trial,” Wrobel v. Cnty. of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis and internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), and “cannot rely on the mere allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) (citing, inter alia, Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading . . . .”)).
“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of New York, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same).
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Thus, a court's goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)); see also Schatzki v. Weiser Capital Mgmt., LLC, No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same).
B. Plaintiffs’ Title VI Claims 1. Jewish Identity and Title VI
Title VI prohibits a recipient of federal funds from discriminating on the basis of race, color, or national origin. See 42 U.S. C. § 2000(d).9 The United States Department of Education’s regulations regarding Title VI further state that a recipient of federal funds may not, “on ground of race, color, or national origin . . . [r]estrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or benefit under the program.” 34 C.F.R. § 100.3(b)(1)(iv). Nor may a funding recipient, such as the District in this Action, “[d]eny an individual an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program” on the basis of race, color, or national origin. Id. § 100.3(b)(1)(vi).
While Defendants do not seek dismissal of this Action on standing grounds, they
9 Title VI of the Civil Rights Act of 1964, provides that [n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 U.S.C. § 2000d.
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sheepishly raise the question of whether Plaintiffs may bring a Title VI claim on grounds of deliberate indifference to anti-Semitic harassment, stating that Defendants have found “no prior case holding that claims of discrimination based on the [P]laintiffs’ identification as Jewish come within Title VI’s protection.” (Defs.’ Mem. 25.) Defendants appear to correctly identify an area of legal ambiguity, at least to the extent that they suggest that there is a question as to whether religious bias alone can form the basis of a Title VI claim where it is not “deeply intertwined” with national origin.10 Moreover, some courts have held that “allegations of discrimination because one is Jewish . . . do not by themselves state a claim for national origin discrimination.” Larson v. Portage Twp. Sch. Corp., No. 05-CV-431, 2006 WL 1660752, at *5 (N.D. Ind. June 14, 2006); see also Lapine v. Edward Marshall Boehm, Inc., No. 99-CV-8420, 1990 WL 43572, at *5 (N.D. Ill. Mar. 28, 1990) (noting that “Jews, like Catholics and Protestants, hail from a variety of different countries” and “find[ing] that plaintiff has [not] stated a claim for discrimination based on national origin,” because being “Jewish gives no indication of an individual’s country of origin[,]” “[n]or does it indicate the country of origin of one’s ancestors or suggest the physical or cultural characteristics of a national origin group”); cf. Puckett v. McPhillips Shinbaum, No. 06-CV-1148, 2008 WL 906569, at *13 (M.D. Ala. Mar. 31, 2008) (declining to decide whether “being Jewish” is a “protected classification for purposes of a Title VII national origin claim”). This Court, however, need not address these issues in the instant Action.
10 In a recent Summary Order, the Second Circuit suggested, without citation, that religious bias that is “deeply intertwined” with national origin bias may provide grounds for a Title VI claim, but did not address the issue, because “even if [the court] were to decide it in plaintiffs’ favor, we would conclude that the complaint was properly dismissed for the reasons stated in [the] text.” Kajoshaj v. N.Y.C. Dep’t of Educ., 543 F. App’x 11, 13 n.2 (2d Cir. 2013).
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Regardless of whether religious bias alone can form the basis of a Title VI claim or antiSemitism can provide a basis for national origin discrimination, courts have regularly found that anti-Semitic harassment and discrimination amount to racial discrimination. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18 (1987) (explaining “that the Court of Appeals erred in holding that Jews cannot state a § 1982 claim against other white defendants”); Sherman v. Town of Chester, 752 F.3d 554, 567 (2d Cir. 2014) (holding that “Jews are considered a race for the purposes of §§ 1981 and 1982”); United States v. Nelson, 277 F.3d 164, 177 (2d Cir. 2002) (holding that “Jews count as a ‘race’ under certain civil rights statutes enacted pursuant to Congress’s power under the Thirteenth Amendment”); Bachman v. St. Monica’s Congregation, 902 F.2d 1259, 1261 (7th Cir. 1990) (finding that Jews constitute a race within the meaning of federal civil rights statutes); Lenoble v. Best Temps, Inc., 352 F. Supp. 2d 237, 247 (D. Conn. 2005) (noting that “Jews are a distinct race for § 1981 purposes”); Powell v. Independence Blue Cross, Inc., No. 95-CV-2509, 1997 WL 137198, at *6 (E.D. Pa. Mar. 26, 1997) (finding that “[§] 1981 must be read to encompass discrimination against a plaintiff because of his Jewish ancestry or ethnicity”); Singer v. Denver Sch. Dist. No. 1, 959 F. Supp. 1325, 1331 (D. Colo. 1997) (noting that Jews are “a distinct racial group for the purposes of § 1981”).
Furthermore, the Office for Civil Rights has made clear that “anti-Semitic harassment can trigger responsibilities under Title VI . . . when the harassment is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than solely on its members’ religious practices.” (Dear Colleague Letter from Russlynn Ali, Assistant Secretary for Civil Rights, Office for Civil Rights, U.S. Dep’t of Education (Oct. 26, 2010) (Maazel Decl. Ex 1, at 4).) Such agency interpretations of ambiguities in an agency’s own regulation merit “substantial deference,” as the courts have “no reason to think that the agency’s interpretations do not reflect
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its fair and considered judgment on the matter in question.” Biediger v. Quinnipiac Univ., 691 F.3d 85, 96–97 (2d Cir. 2012) (internal quotation marks omitted). Cf. Kenneth L. Marcus, Jurisprudence of the New Anti-Semitism, 44 Wake Forest L. Rev. 371, 388–89 (2009) (chronicling U.S. Department of Education’s Office for Civil Rights letters dating back to 2004 that conclude “that Title VI covers harassment of students of Jewish heritage” (internal quotation marks omitted)).
Plaintiffs’ Amended Complaint asserts that Plaintiffs faced discrimination on the basis of national origin, specifically their “Jewish ancestry,” rather than on the basis of their religious beliefs or observance. (See Am. Compl. ¶¶ 104, 111, 118.) As summarized above, the harassment Plaintiffs allege did not concern Plaintiffs’ religious beliefs or practices, but rather drew on hackneyed stereotypes, bigoted “jokes,” and painful references to the Holocaust and Naziism. In short, the harassment alleged is rooted in Plaintiffs’ actual or perceived national origin or race rather than just Plaintiffs’ faith or religious practices. The Court finds that, regardless of whether they assert their claims on “national origin” or “race,” Plaintiffs are within their rights to assert a claim under Title VI based on anti-Semitic discrimination.
2. Application to Plaintiffs’ Case As noted, Title VI prohibits recipients of federal funds from discriminating on the basis of race, color, or national origin. 42 U.S.C. § 2000(d). Obviously, this includes prohibition of intentional discrimination. See Alexander v. Sandoval, 532 U.S. 275, 280–81 (2001). Moreover, in certain circumstances, courts view the deliberate indifference of third parties to discrimination as a violation of Title VI by the recipient. See, e.g., Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643–44 (1999) (holding that a board of education could be liable for student-on-student harassment where the board acted with deliberate indifference). The Second
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Circuit has articulated the circumstances under which a school district may be held civilly liable for its deliberate indifference to student-on-student harassment under Title VI. Such “[l]iability only arises if a plaintiff establishes: (1) substantial control, (2) severe and discriminatory harassment, (3) actual knowledge, and (4) deliberate indifference.” Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 665 (2d Cir. 2012).11
“A school district . . . exercises substantial control over the circumstances of the harassment when it occurs ‘during school hours and on school grounds.’” Id. (quoting Davis, 526 U.S. at 646.) “Similarly, a school district’s authority to take remedial action lies in its longstanding disciplinary oversight over its students.” Id. With regard to harassment, the Second Circuit has advised that “not all harassment is actionable.” Id. Instead, to be covered by Title VI, the harassment must be “‘severe, pervasive, and objectively offensive’ and discriminatory in effect.” Id. (quoting Davis, 526 U.S. at 650–51); see also Carabello v. N.Y.C. Dep’t of Educ., 928 F. Supp. 2d 627, 643 (E.D.N.Y. 2013) (noting that “[t]o meet the [severity] requirement, the harassment must have been serious enough to have had a systemic effect of denying the victim equal access to an educational program or activity, and more than episodic; it must have been sufficiently continuous and concerted” (citation and quotation marks omitted)); Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438, 444 (D. Conn. 2006) (same). Discriminatory actions proscribed by Title VI include exclusion of educational benefits or programs. Zeno, 702 F.3d at 665–66. Educational benefits “include an academic environment free from racial
11 Courts generally interpret Title VI and Title IX consistently with one another. See Barnes v. Gorman, 536 U.S. 181, 185 (2002) (noting that “the Court has interpreted Title IX consistently with Title VI”); Zeno v. Pines Plains Cent. Sch. Dist., 702 F.3d 655, 665 n.9 (2d Cir. 2012) (“Historically, the Supreme Court has applied parallel analyses to claims brought under Title IX and Title VI.”). The Court will thus rely on cases that assess claims under either statute in considering the instant Motion.
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hostility.” Id. at 666; see also Hayut v. State Univ. of N.Y., 352 F.3d 733, 750 (2d Cir. 2003) (holding that misconduct that “simply created a disparately hostile educational environment relative to [the student’s] peers . . . could be construed as depriving [that student] of the benefits and educational opportunities available at [the school]”); Oliveras v. Saranac Lake Cent. Sch. Dist., No. 11-CV-1110, 2014 WL 1311811, at *14 (N.D.N.Y. Mar. 31, 2014) (“Educational benefits include an academic environment free from racial hostility.” (internal quotation marks omitted)); T.Z. v. City of New York, 634 F. Supp. 2d 263, 272–73 (E.D.N.Y. 2009) (noting that “even where a Title IX plaintiff’s academic performance does not suffer but the harassment simply creates a disparately hostile educational environment relative to her peers, the issue of whether the harassment deprived the plaintiff of educational opportunities and benefits is one for the trier of fact” (alteration and internal quotation marks omitted)).
Finally, to be liable, a school district must actually know of the harassment; constructive knowledge is insufficient. See Davis, 526 U.S. at 641–43; Zeno, 702 F.3d at 666. Moreover, the district must be deliberately indifferent to the harassment, meaning that its actions must be “clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648; see also, Zeno, 702 F.3d at 666. In evaluating the reasonableness of a school district’s response to alleged harassment, “a court must accord sufficient deference to the decisions of school disciplinarians.” Zeno, 702 F.3d at 666; see also Davis, 526 U.S. at 648 (“[C]ourts should refrain from secondguessing the disciplinary decisions made by school administrators.”).
In considering Defendants’ Motion, the Court must determine whether any genuine issues of material fact exist such that a reasonable jury could find these requirements satisfied. Defendants do not appear to contest that Plaintiffs can satisfy the first two of these requirements, at least for the purposes of the instant Motion. Regardless, the Court addresses all four of the
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requirements and concludes that a jury could reasonably find that Plaintiffs have demonstrated the District’s substantial control over the circumstances of the harassment, that Plaintiffs suffered severe and discriminatory harassment, that the District had actual knowledge of the harassment, and that the District was deliberately indifferent to the harassment.
a. Substantial Control With respect to Defendants’ substantial control, the incidents alleged by Plaintiffs occurred entirely on PBCSD grounds, property (including buses the District hired), or during supervised school trips. See Zeno, 702 F.3d at 668 (noting that the fact that the harassment occurred on school grounds or its contracted buses supported the jury’s finding that the district had substantial control over the circumstances of the harassment); see also Davis, 526 U.S. at 646 (finding that a school has control over harassment that occurs “during school hours and on school grounds”). Furthermore, Plaintiffs’ harassers were fellow students over whom the District had disciplinary oversight. A reasonable jury could therefore conclude that PBCSD possessed the control required to incur liability under Title VI. See Zeno, 702 F.3d at 668 (noting that “[b]ecause school officials are charged with prescribing and controlling conduct in the schools, the District had disciplinary oversight over the harassers” and therefore had “substantial control” over the harassment (alterations, internal quotation marks, and citation omitted)).
b. Severe and Discriminatory Harassment Plaintiffs have also identified sufficient facts to support a jury conclusion that T.E., O.C., and D.C. were subjected to severe and discriminatory harassment. These Plaintiffs’ depositions catalogue numerous incidents for each Plaintiff that exceed the sort of “non-actionable ‘simple acts of teasing and name-calling among school children.’” Id. at 667 (quoting Davis, 526 U.S. at
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652); see also DiStiso v. Cook, 691 F.3d 226, 242–43 (2d Cir. 2012) (finding that allegations that a student’s “classmates called the child racial epithets or disparaged his race . . . by calling him ‘nigger’ [and] ‘blackie,’ and [] by suggesting that the boy’s skin remained dirty even after washing” indisputably “raise[d] a question of severe harassment going beyond simple teasing and name-calling”). Taking Plaintiffs’ testimony as true for the purposes of the instant Motion, the three Plaintiffs here had anti-Semitic slurs repeatedly directed at them, witnessed swastika graffiti, and were subjected to anti-Semitic “jokes.” Both T.E. and D.C. were also called “crispy” or told that they should have been burned in the Holocaust. In addition, D.C. and O.C. both claim to have suffered physical harassment, including being slapped, physically restrained, and having coins thrown at them. Plaintiffs allegedly continued to suffer harassment at PBE, Crispell, and, for D.C. and O.C., throughout the duration of their time at PBHS. Moreover, Plaintiffs suffered from more than one or two isolated incidents of racial harassment. Accordingly, a jury could reasonably conclude that Plaintiffs suffered “severe, pervasive, and objectively offensive” harassment. Zeno, F.3d at 665 (internal quotation marks omitted); cf. HB v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-5881, 2012 WL 4477552, at *15 (S.D.N.Y. Sept. 27, 2012) (rejecting Plaintiffs’ claims as insufficiently severe to support a Title VI violation because “the utterance of one comment by a student cannot be said to be so “severe, pervasive and objectively offensive” that it effectively denied [the plaintiff] educational benefits” (internal quotation marks omitted)).
A jury could further conclude that Plaintiffs were improperly denied educational benefits as a result of this harassment. At minimum, Plaintiffs were “deprived of a supportive, scholastic environment free of racism and harassment.” Zeno, 702 F.3d at 667. In addition, Plaintiffs report being emotionally distressed by the harassment; T.E., for example, sought mental health
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services and was on the verge of a nervous breakdown, (see Mrs. E. 233–34), and D.C. contemplated suicide, (D.C. 82–83). Ultimately, T.E. withdrew from public schooling at Crispell. (Mrs. E. 201). Given these facts, a jury could reasonably find that Plaintiffs suffered severe and discriminatory harassment that denied Plaintiffs educational benefits under Title VI. See Zeno, 702 F.3d at 667 (finding that the plaintiff was deprived of educational benefits where he “was driven to leave” the school after three-and-a-half years where “the decision to withdraw was motivated by a racially hostile educational environment”); Hayut, 352 F.3d at 750 (holding that “to the extent the evidence suggests that [the harasser’s] conduct . . . caused [the plaintiff] to withdraw from [the university] altogether, . . . the above-described harassment could be construed as depriving [the plaintiff] of the benefits and educational opportunities available at [the university]”); Herndon v. Coll. of Mainland, No. 06-CV-286, 2009 WL 367500, at *26 (S.D. Tex. Feb. 13, 2009) (noting that “evidence such as stress-related illness, stomach problems, falling grades, or a student's withdrawal from the school due to fear of harassment can constitute harassment sufficiently severe to deprive the student of an educational benefit”). Accordingly, Plaintiffs have provided enough evidence to satisfy the first two requirements for Title VI liability.
c. Actual Knowledge As noted, to hold a school district liable under Title VI, a plaintiff must also demonstrate that the defendant school district actually knew of the harassment—constructive knowledge is insufficient. See Zeno, 702 F.3d at 666 (“Constructive knowledge is not enough; only actual knowledge is a predicate to liability.” (citing Davis, 526 U.S. at 641–43).) This means that a school official who “at a minimum has authority to address the alleged [harassment] and to institute corrective measures on the [school district’s] behalf” must have actual knowledge of
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student-on-student harassment in order for the district to be liable. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998); see also Manolov v. Borough of Manhattan Cmty. Coll., 952 F. Supp. 2d 522, 532 (S.D.N.Y. 2013) (noting that “when [a Title VI or Title IX] discrimination claim fails to implicate the official policy of a defendant, a damages remedy will not lie unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond” (alteration and internal quotation marks omitted)); Zimmerman v. Poly Prep Country Day Sch., 888 F. Supp. 2d 317, 331–32 (E.D.N.Y. 2012) (same).
Defendants admit that both T.E. and O.C. reported harassment to school administrators. (See Defs.’ Mem. 30, 33.) Such notice is sufficient to provide a basis for a finding of actual knowledge on the part of the District. See Zeno, 702 F.3d at 668 (noting that the reporting of harassment to the school principal and school administrators were some of the many ways in which the District “actually knew” of the harassment against the plaintiff); Romero v. City of New York, 839 F. Supp. 2d 588, 604 (E.D.N.Y. 2012) (holding that informing the assistant principal and principal about alleged misconduct constituted the defendants’ actual knowledge of the misconduct); DT v. Somers Cent. Sch. Dist., 588 F. Supp. 2d 485, 495 (S.D.N.Y. 2008) (holding that the plaintiff’s conversation with his principal and three letters sent to school officials about the harassment that the plaintiff suffered placed the defendants on notice of racial hostility), aff’d, 348 F. App’x 697 (2d Cir. 2009).
With respect to D.C., however, Defendants claim that “there is no evidence that any appropriate person in a position to institute corrective measures on the school district’s behalf had actual knowledge that D.C. was experiencing such harassment.” (Defs.’ Mem. 28
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(alterations and internal quotation marks omitted).) Sufficient facts exist to dispute Defendants’ contention.
As an initial matter, the Court acknowledges that D.C.’s testimony that he reported incidents of harassment to his teachers on several occasions is insufficient to establish actual notice. Specifically, D.C. remembered “actually point[ing] out swastikas [in textbooks] to [his] teachers,” but he could not remember the specific teachers to whom he showed them. (D.C. 20.) He reported a swastika in the bathroom to his eighth grade science teacher, and, when it reappeared later, to his Spanish teacher. (See id. at 11–13.) He also told Ms. King, his tenth grade trigonometry teacher, that another student was “making anti-Semitic remarks” in her class, (id. at 93–94), and testified that Ms. King was present and teaching when another student “called [a student] a fucking Jew at the top of his lungs” and then “looked at [D.C.] and . . . smirked,” (id. at 94–95).
D.C.’s reports to PBCSD faculty, however, were insufficient to provide actual knowledge to the District. As previously discussed, Title VI only recognizes actual notice when information is provided to a school official with authority to institute corrective measures on the district’s behalf. Despite Plaintiffs’ broad assertion that “[i]n this District, teachers have authority to institute corrective measures on the district’s behalf,” because “[t]eachers ha[ve] essentially unlimited discretion whether and how to give discipline,” (Pls.’ Mem. 49–50 (alterations and internal quotation marks omitted)), Defendants claim that teachers’ disciplinary authority is cabined by the Code of Conduct, (Pls.’ 56.1 Resp. ¶¶ 30–31). In any case, D.C. alleges “rampant anti-Semitic discrimination and harassment” at the hands of “multiple” students at both Crispell and PBHS that a teacher would not likely be able to effectively combat by disciplining individual students. (See Am. Compl. ¶¶ 75–78.)
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Moreover, even if PBCSD teachers possessed the control necessary to take corrective action and end the discrimination against D.C., imputing knowledge on the part of the teachers to the District would undermine Title VI’s clear bar on respondeat superior liability. See DT, 588 F. Supp. 2d at 494 (finding that “[a]s Title VI requires actual notice, the principle of respondeat superior will not impute [a teacher’s] knowledge of [the harassment suffered by the plaintiff] to defendants” where a teacher observed but failed to report racial harassment). Thus, even if faculty members were required to report harassment to administrators, it would still be improper to impute the teachers’ knowledge to the District, absent evidence that the teachers followed the policy and, accordingly, made reports. See id. (holding that the fact that a nondefendant teacher witnessed an incident of harassment was insufficient to impute knowledge of the incident to the defendants, absent evidence in the record that the defendants were informed, and despite a district protocol “which would [require the teacher] to contact other administrators and speak to other staff”); accord C.S. v. Couch, 843 F. Supp. 2d 894, 913 (N.D. Ind. 2011) (finding that the defendant did not have actual knowledge of racial harassment, and refusing to “impute the knowledge of [the plaintiff’s] fifth grade teacher or the football coaches” who were aware of the harassment and who may have had the authority to stop the offending behavior, “[b]ecause Title VI requires actual notice,” and despite the teacher’s alleged promise to talk to the principal about the harassment, there was no evidence that the teacher ever reported the harassment to the principal).12 Thus, to the extent that D.C.’s teachers were aware of
12 One court addressed this issue in the context of sexual harassment of a student by a teacher, however, such Title IX cases are not analogous to Title VI peer-harassment cases. See Romero v. City of New York, 839 F. Supp. 2d 588, 605 n.9 (E.D.N.Y. 2012) (noting that, although the Supreme Court has stated that “the knowledge of the wrongdoer himself is not pertinent to the actual knowledge analysis, neither the Supreme Court nor the Second Circuit has addressed whether a teacher . . . who does not have supervisory authority over the offending
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harassment, but did not report it to administrators, the District cannot be found to have had “actual knowledge” of these instances of harassment.
Nevertheless, there is evidence in the record that administrators knew of the anti-Semitic harassment that D.C. suffered. Testimony from Mr. C. provides one instance in which a school administrator was contemporaneously notified that D.C. was the victim of anti-Semitic harassment. When D.C. was in sixth grade, his father called Boyle and reported that his son “had been the butt of many Jewish jokes,” that an older student on D.C.’s bus had called D.C. a “fucking Jew,” and that his son had been subject to Jewish jokes and slurs from “multiple kids over the course of that year.” (Mr. C. 10–11, 13.) D.C. testified that he later attempted to raise the issue with Boyle himself, but that Boyle “dismissed it” and instead reprimanded D.C. for playing video games in the computer lab. (D.C. 29.) The reporting of harassment to Principal Boyle when D.C. was in sixth grade provided Defendants with actual knowledge of D.C.’s harassment at Crispell. Though the District’s response to this knowledge is disputed by Defendants, this dispute is within the bounds of Title VI.
Plaintiffs further submit that Mr. C. notified Boyle, two Assistant Superintendents, a member of the PBCSD School Board, and Steinberg of his son’s harassment in a 2011 email. (Pls.’ Mem. 48.) However, the relevant email, in which Mr. C. conveys that D.C. “spent 9th grade in fear of Seniors on his bus who pushed him around while chanting ‘White Power’ and telling him that he should have died in the Holocaust,” was sent in May 2011, when D.C. was
employee and cannot fire or suspend the employee, is a school official with authority to address the alleged discrimination and to institute corrective measures” (alterations and internal quotation marks omitted)). In the context of teacher-on-student harassment, it seems less likely that one teacher would have any authority over a fellow teacher to remedy the harassment, than a teacher would have to address student-on-student harassment.
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nearing the end of the tenth grade and when the older students involved in this harassment would have graduated from the school. (See Maazel Decl. Ex. 27.) Moreover, there is no evidence that Mr. C. raised concerns about harassment of D.C. at the meeting that resulted from this email. (See Mr. C. 37–52 (describing the content of the meeting with school administrators and noting that “the reason why they were there was because of all of the things that we understood were happening to T.[E.] and O.[C.]”).) Here, a jury could not reasonably conclude that the 2011 email provided the District with actual knowledge of the harassment suffered by D.C. at PBHS prior to the date of the email. As the email did not suggest that the harassment D.C. experienced in ninth grade had persisted, and as Mr. C. did not raise the issue at the resulting meeting, it would not be reasonable to consider the email as providing actual knowledge of harassment of D.C. when he was in ninth grade.
A jury could conclude, however, that Mr. C.’s 2011 email sufficiently provided the District with knowledge that D.C. might be harassed at PBHS from that point forward based on the harassment he had suffered in the past. Moreover, complaints about the harassment of other students, including O.C. and T.E., provide actual knowledge to the District that D.C. himself suffered harassment. See DT, 588 F. at 494 (noting that “actual notice of every single event is not required” but rather, “at minimum” “the institution . . . must have possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff's legal claim is based” (internal quotation marks omitted)); Crandell v. N.Y. Coll. of Osteopathic Med., 87 F. Supp. 2d 304, 320 (S.D.N.Y. 2000) (noting that “actual knowledge of every incident could not possibly be required, as this would burden the plaintiff unfairly in cases of frequent harassment to report many separate incidents to the appropriate authorities and would oblige the court to determine whether each
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incident alleged was reported and therefore is actionable”). Finally, D.C.’s testimony indicating that anti-Semitic graffiti, including swastikas, was so
ubiquitous throughout Crispell and PBHS that “it would be impossible for [teachers and administrators] to miss the swastikas,” (D.C. 11), is sufficient to support a finding that PBCSD administrators were aware of the graffiti and anti-Semitic harassment in general. (See Defs.’ Mem. 24–25.) See Derby Bd. of Educ., 451 F. Supp. 2d at 446 (finding that evidence of substantial media coverage of harassment was sufficient to create a fact dispute about actual knowledge of a school board); Tesoriero v. Syosset Cent. Sch. Dist., 382 F. Supp. 2d 387, 397 (E.D.N.Y. 2005) (noting that “most courts agree that . . . the actual notice standard does not set the bar so high that a school district is not put on notice until it receives a clearly credible report of [misconduct] from the plaintiff-student” (citation and internal quotation marks omitted)). Therefore, a reasonable jury could find that the information provided to Principal Boyle by D.C. and his father when D.C. was in sixth grade, the 2011 email, and pervasive and obvious grafitti provided the District with actual knowledge that D.C. was being harassed.
d. Deliberate Indifference In addition to the other elements of a Title VI claim, as discussed above, Plaintiffs must prove that the District was deliberately indifferent to the student-on-student harassment. In other words, PBCSD’s action—or inaction—must “at a minimum, [have] caused students to [have] undergo[ne] harassment or [made] them liable to or vulnerable to it.” Zeno, 702 F.3d at 666 (internal quotation marks omitted) (citing Davis, 526 U.S. at 645). “[A] finding of deliberate indifference depends on the adequacy of a school district's response to the harassment.” Id.; see also Oliveras, 2014 WL 1311811, at *14 (same); DT, 588 F. Supp. 2d at 495 (same). “A failure to respond, a response that only follows after a lengthy and unjustified delay, and a response that
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amounts to deliberate indifference to discrimination, have all been found inadequate.” Zeno, 702 F.3d at 666 (citations and internal quotation marks omitted); see also T.C. v. Valley Cent. Sch. Dist., 777 F. Supp. 2d 577, 596 (S.D.N.Y. 2011) (noting that a court may find deliberate indifference when the “defendant’s response to known discrimination is clearly unreasonable in light of the known circumstances or when remedial action only follows after a lengthy and unjustified delay” (internal quotation marks omitted); DT, 588 F. Supp. 2d at 495 (noting that “remedial action [that] only follows after a lengthy and unjustifiable delay” can be unreasonable and thereby support a finding of deliberate indifference); Derby Bd. of Educ., 451 F. Supp. 2d at 446–48 (holding that the plaintiff “proffer[ed] sufficient evidence to permit a finding that the [defendant’s] response was unreasonably delayed and inadequate so as to constitute deliberate indifference”). This inquiry is “not a mere reasonableness standard [of the type that would] transform[] every school disciplinary decision into a jury question.” Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 141 (2d Cir. 1999) (internal quotation marks omitted). Indeed, “[i]n an appropriate case, there is no reason why courts, on a motion . . . for summary judgment . . . , could not identify a response as not clearly unreasonable as a matter of law.” Id. (internal quotation marks omitted).
When weighing the adequacy of a response, a court must accord sufficient deference to the decisions of school disciplinarians. See Zeno, 702 F.3d at 666; see also Davis, 526 U.S. at 648 (“[C]ourts should refrain from second-guessing the disciplinary decisions made by school administrators.”). To that end, victims do not have a right to specific remedial measures. See Zeno, 702 F.3d at 666; Doe v. Galster, 768 F.3d 611, 621 (7th Cir. 2014) (finding that, because “Davis does not entitle plaintiffs to any specific remedial measure . . .[t]he school was not required by federal law to give [the plaintiff] a formal safety plan”); Oliveras, 2014 WL
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1311811, at *14 (noting that “victims do not have a right to specific remedial measures” when weighing the adequacy of a school district’s response to peer harassment); T.C., 777 F. Supp. 2d at 596 (“The Supreme Court has rejected the notion that victims of peer harassment have a right under Title VI to make particular remedial demands.”); DT, 588 F. Supp. 2d at 496 (“[C]ourts have been skeptical of arguments premised on the degree to which a school punishes its students” on the basis that “[t]he Supreme Court has rejected the argument that victims of peer harassment have a Title VI right to make particular remedial demands on the school.” (citations and internal quotation marks omitted)).
Here, the District argues that a reasonable jury could not find it to have been deliberately indifferent because its officials appropriately responded to the incidents of harassment of which they were aware and took steps as needed to address anti-Semitism more systematically in the school community. However, the undisputed facts, as well as those that the District contests in its Response to Plaintiffs’ Rule 56.1 statement, do not foreclose a jury from coming to the conclusion that the District was deliberately indifferent. Given the numerous incidents of harassment alleged by D.C., T.E., and O.C., which the District does not dispute, a jury could find that the District was aware of such inadequacies, and that the District nonetheless failed to take reasonable steps to combat anti-Semitic harassment.
“Responses that are not reasonably calculated to end harassment are inadequate.” Zeno, 702 F.3d at 669; see also Doe v. Sch. Bd. of Broward Cnty. Fla., 604 F.3d 1248, 1261 (11th Cir. 2010) (noting that “where a school district has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the behavior”); Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 262 (6th Cir. 2000) (“Where a school district has actual knowledge that its efforts to remediate are ineffective,
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and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.”); Tesoriero, 382 F. Supp. 2d at 399 (same).
The circumstances that the Second Circuit considered in Zeno are informative to the Court’s consideration of the District’s response in the instant case. There, the court found that “five circumstances should have informed the [d]istrict’s continued response to student harassment of [the plaintiff].” Zeno, 702 F.3d at 669. First, the court noted that the district knew that disciplining the students who were harassing the plaintiff failed to deter further harassment from other students. Id. Here, the District had knowledge that meting out discipline to the students who harassed Plaintiffs (to the extent there was such discipline) did not deter others from harassing D.C., O.C., and T.E. In addition to the large number of complaints by Plaintiffs about harassment by different students, Superintendent Steinberg acknowledged that “it was different children that were making [harassing comments to T.E. and O.C.],” (Defs.’ 56.1 Resp. ¶ 237), and, in a meeting with administrators, Plaintiffs’ parents stressed the “systemic” nature of the harassment that their children regularly faced, (see id. ¶¶ 179–80). Second, the Zeno court noted that the harassment that the plaintiff there suffered “grew increasingly severe,” and included two violent incidents, three threats on the plaintiff’s life, and two incidents which resulted in orders of protection against the students involved in the harassment. Id. The instant case does not present the dramatic escalation of harassment from verbal taunts to physical assaults that the plaintiff in Zeno experienced, however, the uncontested facts suggest that harassment of Plaintiffs began at PBE, persisted through their time at Crispell, and, for D.C. and O.C., who remained in District schools, continued throughout their time at PBHS. Third, the discipline given by the administrators in Zeno “had little effect, if any, on the taunting and other hallway harassment, which persisted until [the plaintiff] left [the high school].” Id. Here, too,
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attempts at disciplining students for harassment did not appear to have had an effect on the slurs, “white power chants,” Hitler salutes, and swastika graffiti that Plaintiffs allege to have endured on a regular basis. (See, e.g., Defs.’ 56.1 Resp. ¶¶ 125–30; O.C. 9–13; T.E. 77 (describing an incident in which a student pantomimed shooting O.C. and made a comment about “killing jews” during a video about the Holocaust, was spoken to by the teacher, but continued to make ethnic slurs toward O.C. after the incident). Fourth, the school district in Zeno “knew that the harassment predominately targeted [the plaintiff’s] race and color.” Id. There is no dispute that Plaintiffs here were harassed because they were Jewish. Last, the district in Zeno was offered “both a free shadow, to accompany [the plaintiff] during the school day, and a free racial sensitivity training series” by the Human Rights Commission and N.A.A.C.P. Id. The Defendants here were similarly aware of other options and resources for countering anti-Semitic sentiment in the District—if only because Plaintiffs’ parents told Defendants about them. (See Defs.’ 56.1 Resp. ¶ 234; Mr. C. 42–43 (describing Mr. C.’s request to Steinberg “to invite in organizations like the [Anti-Defamation League] and NAACP” into the schools and require online classes for teachers). In light of these considerations, the Court concludes that a jury could find that the District’s response was unreasonable.
To be clear, the District need not entirely cleanse its schools of harassment to avoid liability under Title VI. See Davis, 526 U.S. at 648 (noting that “purging . . . schools of actionable peer harassment” is not required); Zeno, 702 F.3d at 670 (explaining that “actually eliminating harassment is not a prerequisite to an adequate [Title VI] response” (emphasis in original)); Carabello, 928 F. Supp.2d at 642 (acknowledging that the defendant “was not required to ‘purge’ [the school] of peer harassment, engage in any particular disciplinary action, or expel [the offending student],” and further noting that the “[d]efendant’s disciplinary
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measures over time . . . reflected a school district’s ability to use discretion in disciplining its student”); Preusser ex rel E.P. v. Taconic Hills Cent. Sch. Dist., No. 110-CV-1347, 2013 WL 209470, at *11 (N.D.N.Y. Jan. 17, 2013) (noting that “actually eliminating harassment is not a pre-requisite to an adequate response”). Rather, the District needed only to undertake actions that could “have plausibly changed the culture of bias at [the school] or stopped the harassment directed at [Plaintiffs].” Zeno, 702 F.3d at 670. When, however, a district has knowledge that its current method of addressing the harassment is ineffective, it cannot rest on its past remedial efforts. See id. at 671 (noting that a school district cannot ignore “signals that greater, more directed action was needed”); Vance, 231 F.3d at 261 (holding that “where a school district has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the behavior [and that w]here a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances”).
Here, the District argues that it took measures to combat anti-Semitism in its schools beyond that of the individual disciplining of offending students. PBE Principal Fisch held an assembly to address general bullying issues when T.E. and O.C. were in fifth grade, (see Defs.’ 56.1 Resp. ¶ 122), and later Crispell held a seminar in which a Holocaust survivor spoke to T.E. and O.C.’s seventh-grade class, (see id. ¶ 223). The Parties dispute the extent to which the District engaged in any other programs to combat anti-Semitism, though Defendants argue that the District’s anti-bullying efforts encouraged tolerance generally and “sometimes specifically mentioned anti-Semitism.” (Id. ¶¶ 383–85.) In addition, District administrators met with Plaintiffs’ parents and the students themselves to discuss the harassment and possible solutions,
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including transferring T.E. and O.C. to a middle school other than Crispell. (See id. ¶¶ 240–41.) Some courts have concluded that general anti-bullying programs (among other actions)
prevent a district from being found deliberately indifferent when such programs are used as part of a larger strategy that targets the harassment. See, e.g., Williams v. Port Huron Sch. Dist., 455 Fed. App’x. 612, 620 (6th Cir. 2012) (holding that a principal was not deliberately indifferent where he “made extensive efforts to combat student-on-student racial harassment,” including removing a racial slur from a locker, setting up video surveillance in locations where harassment occurred, participating in a group dedicated to improving relations in the community, ordering students to remove confederate flags from their cars and clothes, expelling a racist student, and conducting “assemblies at which he told the students to treat everyone with respect and dignity”), rev’g No. 06-CV-14556, 2010 WL 1286306 (E.D. Mich. Mar. 30, 2010); S.S. v. E. Kentucky Univ., 532 F.3d 445, 454–55 (6th Cir. 2008) (holding that a school district was not deliberately indifferent where the record demonstrated that the district, in addition to investigating and disciplining the students involved, responded to allegations of racial discrimination in many different ways, including “identifying related topics for discussion at assemblies” and small groups); Doe ex rel. Doe v. Bellefonte Area Sch. Dist., No. 02-CV-1463, 2003 WL 23718302, at * 7, 10 (M.D. Pa. Sept. 29, 2003) (granting summary judgment to a school district that “took . . . preventative measures [other than dealing with specific offenders] in the wake[] of [each reported sexual harassment incident] . . . including conducting “assemblies that addressed the issue of harassment”), aff’d, 106 F. App’x 798 (3d Cir. 2004).
But conducting assemblies, even ones that specifically address the discrimination complained of, does not immunize a school district from liability, as the school district’s response must be assessed “in light of the known circumstances.” Davis, 526 U.S. at 648. In
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Zeno, for example, despite evidence demonstrating that the school district disciplined the plaintiff’s harassers immediately and held an assembly as an attempt to combat school-wide racial harassment, the court nonetheless found the district’s response to have been unreasonable. See 702 F.3d at 655. In particular, the court affirmed judgment for the plaintiff on grounds that the jury had reasonably found the district’s actions could not have plausibly changed the culture of bias or stopped the harassment and could find that the district ignored many signals that greater, more directed action was needed. Id. at 669–70.
And so it is here. A reasonable jury could find that, while the District may have taken some steps to combat the culture of anti-Semitism in its schools, the handful of assemblies—which addressed only students in T.E. and O.C.’s grade—could not have plausibly changed the anti-Semitic sentiments of the student harassers, many of whom were not classmates of T.E. and O.C. These assemblies also did nothing to target anti-Semitism among the students who harassed D.C. See id. at 670 (finding that, despite the defendant school district’s training program that “was for one day only and focused on bullying and sexual harassment, rather than racial discrimination,” morning announcements with “messages meant to inculcate civic and personal values, rather than address racism and discrimination,” an attendance-optional biasspecific training that was not held until “nearly twenty-one months after peer harassment of [the plaintiff] began,” and the formation of an extracurricular student group aiming at addressing prejudice, a reasonable jury could have found the district’s response to have been unreasonable). A reasonable jury could find that the number of incidents of harassment against Plaintiffs and the fact that this harassment did not cease following the District’s assemblies provided ample indication that additional efforts to change the anti-Semitic culture were required. Moreover, the administrators in question appear to have done nothing to attempt to address anti-Semitism in the
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District across schools, despite the fact that the incidents that occurred on the school bus involved students who were older than Plaintiffs and who did not attend the same school. (See Peters 273–74 (admitting that the April 19, 2010 bus incident involved T.E., who was in middle school, and high school students); T.E. 150 (testifying that “in addition to middle school kids, there were high school kids on the bus” that T.E. rode in seventh grade).) Furthermore, taking Plaintiffs’ evidence as true, a jury could find that the District also failed to raise awareness among the administration and faculty about the rampant harassment, and that the District failed to implement programs to assist in determining the sources and potential solutions to the culture of anti-Semitism among the District’s students. A jury also could reasonably conclude that there were no broad measures put in place to address anti-Semitic graffiti, which appears to have been handled on a case-by-case basis, despite the fact that graffiti often reappeared shortly after it had been removed. (See, e.g., Defs. 56.1 Resp. ¶¶ 174–75, 306–16.); see also Zeno, 702 F.3d at 670 (finding that it was reasonable for the jury to have found that the defendant district’s selection of some remedial actions “in lieu of the free shadow or racial sensitivity training offered by the Dutchess County HRC and N.A.A.C.P.” was an unreasonable response to the plaintiff’s harassment); DiStiso, 691 F.3d at 245 (holding that a reasonable jury could have found the fact that the school principal spoke to the student’s teacher, but did not conduct a full investigation of the reported incidents, to have been an unreasonable response to the reported harassment).
Furthermore, a jury could find that the District’s response in instituting programs to target anti-Semitism was unreasonably delayed, as it came several years after D.C. reported harassment in sixth grade and after Mrs. E. reported the swastika graffiti in fifth grade. A jury could reasonably discount the District’s prior anti-bullying program, which the District claims included broad lessons of tolerance and specific mentions of anti-Semitism, as an obviously
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inadequate remedy for an ongoing problem. See Zeno, 702 F.3d at 670 (finding the district’s programs, which “did not focus on racial bias or prejudice” and “made attendance optional” provided a reasonable basis for a jury to deem the district’s response inadequate).
The Court acknowledges that the school administrators here were faced with the difficult task of disciplining students for harassment of Plaintiffs without violating the rights of the offending students. See, e.g., Lopez v. Bay Shore Union Free Sch. Dist., 668 F. Supp. 2d 406, 419 (E.D.N.Y. 2009) (noting that “New York State statutory law provides certain procedural safeguards to students facing suspensions of more than five days, including the right to reasonable notice, the right to call and examine witnesses, and the right to legal representation,” as well as a right to due process under the Fourteenth Amendment to the Constitution (citing N.Y. Educ. Law § 3214(3)(c)(1)); Bd. of Educ. of City Sch. Dist. of City of New York v. Mills, 741 N.Y.S.2d 589, 590 (N.Y. App. Div. 2002) (noting that “school suspensions and expulsions implicate liberty and property interests of the student and, therefore, require the protections afforded by constitutional due process of law”); Manico v. S. Colonie Cent. Sch. Dist., 584 N.Y.S.2d 519, 521 (Sup. Ct. 1992) (noting that “Education Law, section 3214, which governs serious academic suspensions, mandates a full hearing where the suspension is for greater than five (5) days”); N.Y. Comp. Codes R. & Regs. tit. 8, § 100.2(l)(2)(p) (permitting a school’s code of conduct to set “a minimum suspension period, for any student who repeatedly is substantially disruptive of the educational process or substantially interferes with the teacher’s authority over the classroom, provided that the suspending authority may reduce such period on a case-by-case basis to be consistent with any other State and Federal Law”). Meting out discipline in response to peer harassment while respecting the rights of the offending students presents a challenge that all New York school administrators face—and which is reflected in the courts’ reluctance to
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hold attempts to combat harassment deficient merely because the victimized student or the student’s parents are dissatisfied with the administrator’s disciplinary decision. See Zeno, 702 F.3d at 666 (noting that “victims do not have a right to specific remedial measures” (citing Davis, 526 U.S. at 648)). While the record is clear that the District made some attempts to address the harassment suffered by D.C., T.E., and O.C., both in responding to individual incidents and with additional remedial measures, the District’s Title VI liability turns on whether its response was “clearly unreasonable in light of the known circumstances.” Id. (internal quotation marks omitted).
The Parties dispute the specifics of a number of incidents, including whether the District was aware of certain incidents of harassment and if—and how—the District responded to the incidents of which it was aware. These disputes render the Court unable to conclusively determine that no reasonable jury would find the District’s response to have been deliberately indifferent, particularly in light of the District’s acknowledgment that the harassment Plaintiffs faced was more than a collection of individual instances of bigotry. Rather, there is ample evidence that the District officials themselves believed that Plaintiffs faced a culture of antiSemitism in the District and maybe even in the community. (See Mrs. E. 117–19 (testifying that Winter told Mrs. E that “anti-Semitism is prevalent in the community . . . and that it’s rather hard to stop something that’s inbred in the community”).) Assuming the disputed facts in the light most favorable to Plaintiffs, a reasonable jury could find not only that the District failed to adequately respond to specific incidents of reported harassment, but also that it failed to take steps as necessary to combat the atmosphere of anti-Semitism which permeated the District’s schools. A jury could further find that the District failed to monitor the effectiveness of the measures it did take or implement measures that would enable the District to track bias-related
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harassment as distinct from non-bias-related bullying, thereby failing to take the ongoing, iterative steps needed to respond to a culture of bias, as required by Title VI. For these reasons, a jury could reasonably conclude that Defendants were deliberately indifferent in their response to the harassment suffered by D.C., O.C., and T.E.
C. Plaintiffs’ Equal Protection Claims 1. Merits
In addition to Plaintiffs’ Title VI claim against the District, Plaintiffs T.E. and O.C. assert violations of their right to equal protection against several Defendants. As with Title VI, a Plaintiff can prevail on an equal protection claim against school officials based on deliberate indifference to invidious student-on-student harassment. See Gant, 195 F.3d at 140. Specifically, T.E. asserts an equal protection claim against Steinberg, Fisch, and Winter, and O.C. asserts a claim against Steinberg and Winter.13 To succeed on a § 1983 equal protection claim asserting student-on-student harassment, plaintiff must prove: “(1) that the child in question was in fact harassed by other students based on [membership in a protected group], (2) that such race-based harassment was actually known to the defendant school official, and (3) that the defendant’s response to such harassment was so clearly unreasonable in light of the known circumstances as to give rise to a reasonable inference that the defendant himself intended for the harassment to occur.” DiStiso, 691 F.3d at 241 (internal citations and quotation marks omitted); Oliveras, 2014 WL 1311811, at *19 (same). These “elements work together to ensure that the ultimate inquiry in a deliberate indifference case is one of racially discriminatory purpose on the part of the defendant himself.” DiStiso, 691 F.3d at 241 (original alterations and internal
13 D.C.’s § 1983 claims against individual defendants were previously dismissed, per Magistrate Judge Davison’s December 6, 2012 Order. (See Dkt. No. 19, at 20–22.)
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quotation marks omitted); Oliveras, 2014 WL 1311811, at *19 (same).
The Court finds that T.E. and. O.C. have satisfied the first of these requirements, as discussed above in the Title VI context. See supra § II(B)(2)(b).14 Plaintiffs have also
sufficiently demonstrated that T.E., O.C., and their respective parents reported a number of
incidents of anti-Semitic harassment to Defendants Steinberg, Fisch, and Winter, providing
sufficient grounds for a jury to find the actual notice requirement satisfied with respect to these
Defendants. See supra § II(B)(2)(c). See also DiStiso, 691 F.3d at 241 (noting that “race-based
harassment [must be] ‘actually known’ to the defendant school official” in order to trigger
§ 1983 liability).
The Court cannot foreclose the possibility that a reasonable jury might infer the requisite
discriminatory intent required to hold individual Defendants Fisch, Steinberg, and Winter liable,
based on their responses to T.E. and O.C.’s complaints. While the law does not require
administrators’ responses to peer-on-peer harassment to be perfect, the facts, many of which are
disputed, suggest that these Defendants’ responses may have been inadequate. Thus, a jury
ought to consider whether “the measures taken [were] so inadequate that a degree of
discriminatory intent may be inferred—allowing the trier of fact to conclude that Defendants
14 In Gant ex rel. Gant v. Wallingford Board of Education, the Second Circuit noted that the Supreme Court articulated a severity requirement in Title IX for peer-harassment claims in Davis, finding that school officials could not be liable under Title IX for failing to respond to harassment consisting of “simple acts of teasing and name-calling among school children,” even when those acts were gender-based. 195 F.3d 134, 140 n.5 (2d Cir. 1999) (quoting Davis, 526 U.S. at 652). The Second Circuit “specifically declined to decide whether [this] severity requirement . . . also applied to deliberate indifference claims under the Constitution’s Equal Protection Clause.” DiStiso, 691 F.3d at 242. Thus, it is possible that “the degree of racial harassment necessary to support a deliberate indifference claim under the Equal Protection Clause is less” than that required under Title IX and Title VI. Id. This is of no moment, however, as T.E.’s and O.C.’s claims meet the more exacting requirements of Title VI, as the Court has already explained.
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intended for the discrimination to occur,” and thus whether these Defendants are liable under § 1983. Yap v. Oceanside Union Free Sch. Dist, 303 F. Supp. 2d 284, 295 (E.D.N.Y. 2004); see also Gant, 195 F.3d at 140 (finding there was sufficient evidence that school officials acted unreasonably by not conducting a full investigation into a racial harassment incident).
With respect to Principal Fisch, his failure to ensure the removal of swastika graffiti from the PBE playground slide is certainly regrettable, but his response to reports about the graffiti by Mrs. E. is more problematic. The Parties dispute the number of times that Mrs. E. informed Fisch that there was still a swastika on the playground slide before he investigated himself, (see July 17, 2014 Tr. 11–17), but Defendants do not contest that, when Fisch received an email documenting that the grafitti was still present in 2010, Fisch emailed the Assistant Superintendant and suggested that “[they] go out and look at [the swastika grafitti] on cannabis culture day[, April 20, 2010].” (Defs.’ 56.1 Resp. ¶ 90; Fisch 173–76.) It is also uncontested that Fisch conducted no investigation into the origin of the grafitti and, as a result, disciplined no one. (See Defs.’ 56.1 Resp. ¶ 95; Fisch 163.) In addition, Fisch, along with other administrators who actually presided over the school in which the offending student was enrolled, was notified about the bus incident involving T.E. and an older student via email, however, he took no steps to ensure that the offending student was disciplined. From these incidents, a reasonable jury could find Fisch’s response to have been inadequate and that this demonstrated Fisch’s deliberate indifference to the issue. See, e.g., DiStiso, 691 F.3d at 245 (affirming that defendant’s failure to do anything, let alone conduct a full investigation of reported incidents in which children repeatedly called a student “racial epithets, including a reviled racial epithet,” could be found unreasonable); Doe ex rel. Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226, 237 (holding that “a jury could reasonably conclude . . . that the [d]efendant’s
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conduct . . . amounted to deliberate indifference” where the plaintiff testified that the defendant
“did nothing in response to [plaintiff’s and her parents’] complaints about [plaintiff’s] treatment
by her peers . . . [and where] the principal answered their complaints by saying he ‘couldn’t do
anything about it’”).15
With respect to Assistant Principal Winter, both T.E. and O.C. identify incidents where
Winter either failed to respond to reported harassment or where Plaintiffs dispute facts about his
response. They claim that Winter failed to discipline the student on T.E.’s bus who made the
threatening remarks to her. (See Defs.’ 56.1 Resp. ¶¶ 218–21). Plaintiffs dispute whether and to
what extent Winter responded to the incident in which another student called T.E. “crispy” and
said that she should have been burned in the Holocaust, (see id. ¶¶ 168–69), and the instances in
15 Defendants have repeatedly noted that Principal Fisch and Superintendent Steinberg are themselves Jewish. (See, e.g., Defs.’ Mem. 35–36; Defs.’ Reply 26). “Some courts have inferred that it is less likely that a member of a protected group will discriminate against a member of the same group,” at least in the context of employment discrimination. Meder v. City of New York, No. 06-CV-504, 2007 WL 2937362, at *9 (E.D.N.Y. Oct. 9, 2007); see also Hargrove v. N.Y.C. Sch. Const. Auth., No. 11-CV-6344, 2014 WL 3756303, at *5 (E.D.N.Y. May 7, 2014) (noting that “[a] well-acknowledged inference against discrimination exists where the person who participated in the allegedly adverse decision is also a member of the same protected class (internal quotation marks omitted)), adopted by, 2014 WL 3756342 (E.D.N.Y. July 30, 2014); White v. Pacifica Found., 973 F. Supp. 2d 363, 380 (S.D.N.Y. 2013) (“Although [t]he Supreme Court has rejected any conclusive presumption that an employer or, presumably, his agents, will not discriminate against members of their own race or gender[,] . . . the fact that both [plaintiff] and [decision-maker] are African-American undermines any possible inference of discriminatory animus.”) (alterations, citation, and internal quotation marks omitted). However, Defendants did not cite—nor has the Court identified in its research—a case drawing such an inference in the case of an administrator’s deliberate indifference to student-on-student harassment. The Court is not persuaded that the mere fact that several PBCSD officials are Jewish would preclude a reasonable jury from concluding that these individuals were deliberately indifferent to the harassment alleged by Plaintiffs. See Feingold v. New York, 366 F.3d 138, 155 (2d Cir. 2004) (noting that the Supreme Court has rejected the conclusive presumption that an employer or his agents would not discriminate against members of their own race or gender and holding that “[i]t is no more reasonable to presume that individuals will not discriminate against practitioners of their own religious faith”).
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which T.E.’s and O.C.’s desks were defaced with swastikas, (see id. ¶¶ 174–75). They further allege that Winter told them to stop coming to him as frequently with their harassment and graffiti complaints. (See id. ¶¶ 159–60.) They do not dispute that Winter crossed out the swastika that was drawn near O.C.’s picture in a yearbook, but do dispute whether the student responsible was disciplined. (See id. ¶ 253.) Furthermore, in phone calls with Mr. C., Winter stated his intent to handle harassment issues on an individual basis rather than targeting the systemic anti-Semitism at Crispell. (See id. ¶¶ 179–81.) The undisputed facts in this case suggest that Winter did respond to most of these incidents, but a reasonable jury could determine that the alleged failure to investigate racially-biased harassment was unreasonable. See Distiso, 691 F.3d at 245 (denying the individual defendant’s summary judgment motion because he allegedly “did nothing” in response to purported actual knowledge that children “were repeatedly calling a student racial epithets [that] . . . could be found unreasonable”); G.D.S. ex rel. Slade v. Northport-E. Northport Union Free Sch. Dist., 915 F. Supp. 2d 268, 279 (E.D.N.Y. 2012) (noting that, for motion to dismiss purposes, “[g]iven the severe and shockingly offensive nature of the anti-Semitic slurs allegedly being made to the Plaintiff by other students, it appears to this Court that the supposed lack of action by the Defendants to either educate students about the harms of such religious discrimination or investigate and discipline the harassers was an inadequate response and thus, clearly unreasonable”).
With respect to Superintendent Steinberg, Plaintiffs claim that Steinberg also failed to respond to the incident in which T.E. was threatened on the bus, (see Defs.’ 56.1 Resp. ¶¶ 218–21), and the incident in which another student called T.E. “crispy,” (see id. ¶¶ 168–69). His response to Mrs. E.’s complaint about rampant anti-Semitic graffiti is disputed, but Plaintiffs claim that Steinberg told Mrs. E. that when his children had a similar problem, they moved. (See
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id. ¶¶ 201–02.) When T.E., O.C., and their parents approached him about a similar solution, specifically transferring the girls to another middle school with accompanying financial support, Steinberg is alleged to have denied the request. (See id. ¶¶ 235–43.) While this factor may not be sufficient to prove that Steinberg possessed the requisite intent, it is informative to the analysis nonetheless. See Yap, 303 F. Supp. 2d at 295 (explaining that the court considered the district’s refusal to allow the student in question to transfer or skip a grade, “in contravention of a[n] indisputably well-established custom to the contrary,” but noting that the plaintiffs also failed to provide any proffer that either remedy would alleviate the reported problems). Steinberg’s failure to raise the issue of anti-Semitic harassment in any of his many meetings with the PBCSD School Board, (see Steinberg 53), which may have led to a District-wide strategy for combating anti-Semitic harassment, might further lead a jury to conclude that he acted unreasonably to the point of being deliberately indifferent to Plaintiffs’ harassment.
Plaintiffs here have offered more “than a proffer indicating the ultimate inadequacy of preventative and curative measures” undertaken by Fisch, Winter, and Steinberg. Yap, 303 F. Supp. 2d at 294–95. Indeed, they have adduced facts that, if accepted by the jury, could support a jury conclusion that Fisch, Winter, and Steinberg were deliberately indifferent.
2. Qualified Immunity As Plaintiffs’ claims against the individual defendants do not clearly merit Summary Judgment in Defendants’ favor, the Court must consider whether Fisch, Winter, and Steinberg are shielded from liability by the qualified immunity doctrine. Qualified immunity shields a “government official[] from liability for civil damages insofar as [his or her] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Messerschmidt v. Millender, 132 S.Ct. 1235, 1244 (2012) (internal quotation
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marks omitted). When successfully asserted by a defendant, “[q]ualified immunity is an immunity from suit rather than a mere defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (internal quotation marks omitted). To determine whether qualified immunity is appropriate, courts first look to whether the facts, “show the officer’s conduct violated a constitutional right[.]” Id. at 232 (internal quotation marks omitted). Here, the facts adduced by Plaintiffs and in dispute suggest that Plaintiffs’ constitutional rights may have been violated. Thus, the Court must examine “whether the right at issue was clearly established at the time of [the] defendant’s alleged misconduct.” Pearson, 555 U.S. at 232 (internal quotation marks omitted).
For fifteen years—well before Plaintiffs enrolled in PBCSD—the Second Circuit has clearly prohibited the “deliberate indifference of school boards, administrators, and teachers to invidious harassment in the school environment, of a student by other children” on the basis of the student’s race. DiStiso, 691 F.3d at 240–41 (internal quotation marks omitted) (citing Gant, 195 F.3d at 140). Defendants correctly note the absence of a case in the Second Circuit holding an administrator individually liable under § 1983 for anti-Semitic student-on-student harassment, but this is not dispositive. Gant provided administrators with notice of their liability with respect to racial discrimination generally, and courts both within and outside of the Second Circuit have held that anti-Semitic harassment can amount to actionable racial discrimination. See supra § II(B)(1). Furthermore, there are disputed issues of fact as to whether Fisch, Winter, and Steinberg’s responses to the harassment Plaintiffs suffered was reasonable. Accordingly, these Defendants are not entitled to qualified immunity. See DiStiso, 691 F.3d at 245 (noting that the
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factual disputes regarding the reasonableness of the defendants’ response rendered the same defendants “not entitled to judgment on the ground of qualified immunity”).
3. Monell Liability Defendants also seek summary judgment on the issue of whether Plaintiffs’ equal protection claim against the District fails on Monell grounds. It is well-settled that a municipality may not be held liable under § 1983 “by application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986); see also Vassallo v. Lando, 591 F. Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting that “a municipal entity may only be held liable where the entity itself commits a wrong”). Instead, there must be a “direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see also Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (“[A] municipality can be held liable under Section 1983 if the deprivation of Plaintiff’s rights under federal law is caused by a governmental custom, policy, or usage of the municipality.” ). In other words, "to establish municipal liability under § 1983, a plaintiff must prove that action pursuant to official municipal policy caused the alleged constitutional injury." Cash v. Cnty. of Eerie, 654 F.3d 324, 333 (2d Cir. 2011) (internal quotation marks omitted). “A municipal policy may be pronounced or tacit and reflected in either action or inaction.” Id. at 334.
a. Final Policymaking Authority Plaintiffs first contend that the District is liable because “its final policymakers, Steinberg and the principals, are liable.” (Pls.’ Mem. 58). “When an official has final authority
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over significant matters involving the exercise of discretion, the choices he makes represent government policy.” Nagle v. Marron, 663 F.3d 100, 116 (2d Cir. 2011) (internal quotation marks omitted). Accordingly, “‘municipal liability [under § 1983] may be imposed for a single decision by municipal policymakers.’” Id. (quoting Pembaur, 475 U.S. at 480).
Where, as here, Plaintiffs “seek[] to hold a municipality liable for a single decision by a municipal policymaker, [plaintiffs] must show that the official had final policymaking power.” Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (citation and internal quotation marks omitted). “[T]he critical inquiry is not whether an official generally has final policymaking authority; rather, the court must specifically determine whether the government official is a final policymaker with respect to the particular conduct challenged in the lawsuit.” Id.; see also Eldridge v. Rochester City Sch. Dist., 968 F. Supp. 2d 546, 562 (W.D.N.Y. 2013) (“An official may be a final policymaker as to some issues but not as to others.”). “[T]he question of whether a given official is the . . . final policymaking official in a given area is a matter of law to be decided by the court” “before the case is submitted to the jury.” Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (emphasis in original) (internal quotation marks omitted); see also City of Waterbury, 542 F.3d at 37 (“Whether an official has final policymaking authority is a legal question, determined on the basis of state law.”). Further, “[w]here a plaintiff relies not on a formally declared or ratified policy, but rather on the theory that the conduct of a given official represents official policy, it is incumbent on the plaintiff to establish that element as a matter of law.” Jeffes, 208 F.3d 49 at 57.
Plaintiffs argue that Steinberg was a final policymaker within the District, with the authority to “ensure[] students [were] free from harassment and bullying,” and that the principals, including Fisch and Boyle, were final policymakers because the Board delegated
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disciplinary matters to their discretion. (Pls.’ Mem. 58). Under New York law, however, the
Superintendent does not have the authority to “promulgate or otherwise create rules, regulations,
or policies of his own.” Port Washington Teachers’ Ass’n v. Bd. of Educ. of Port Washington
Union Free Sch. District, 478 F.3d 494, 501 (2d Cir. 2007) (quoting N.Y. Educ. Law § 1711)
(emphasis in original). Instead, he has the “power to enforce all provisions of law and all rules
and regulations relating to the management of the schools and other educational, social and
recreational activities under the direction of the board of education.” Id. (first emphasis in
original, second emphasis added) (internal quotation marks omitted). There is nothing, in turn,
to indicate that principals have rule-making or policymaking authority with respect to discipline
under New York law. Rather, New York law provides that the Board of Education “shall have
power, and it shall be its duty . . . [t]o establish such rules and regulations concerning the order
and discipline of the schools . . . as [it] may deem necessary to secure the best educational results.” N.Y. Educ. Law § 1709;16 see also Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp.
2d 135, 145 (N.D.N.Y. 2011) (citing N.Y. Educ. Law § 1709 for school board’s responsibility to,
among other things, “provide adequate training to its employees with respect to discrimination, bullying, or harassment based on sexual orientation or sex”).17 Moreover, although the Board
16 This provision is applicable to central school districts. See N.Y. Educ. Law § 1804(1) ("Each such central school district shall be managed by a board of education consisting of five, seven or nine members, which board shall have the same powers and duties as boards of education in union free school districts as prescribed by this chapter.")
17 Under New York law, a superintendent may be a final policymaker for some purposes. Specifically, the Second Circuit has held that under New York law, “because no potential employee can obtain full school board approval without the superintendent’s recommendation, [the superintendent] may . . . be deemed the final decisionmaker with respect to personnel appointments, because his recommendations are essentially those of the governmental body.” Nagle v. Marron, 663 F.3d 100, 117 (2d Cir. 2011) (internal quotation marks omitted). To reach its conclusion, the court cited New York Education law, which provides that “boards of
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has the power to delegate its authority, Port Washington Teachers’ Ass’n, 478 F.3d at 501 (citing
N.Y. Educ. Law § 1709(33) to support that the board of education had authority to delegate
under New York law), Plaintiffs do not point to any “formally declared or ratified policy” that
supports the Board’s delegation of its rule-making authority to prevent student-on-student
harassment. Jeffes, 208 F.3d 49 at 57.
These principles notwithstanding, courts in the Second Circuit are split as to whether a
principal may qualify as a final policymaker for purposes of Monell liability. See Eldridge, 968
F. Supp. 2d at 562 n.7 (“Some cases may be read to suggest that a split of authority exists within
this Circuit concerning the issue of whether a principal constitutes a final policymaker for the
purposes of alleging municipal liability against a school district.”); Dressler v. N.Y.C. Dep’t of
Educ., No. 10-CV-3769, 2012 WL 1038600, at *18 (S.D.N.Y. Mar. 29, 2012) (noting that
“district court decisions in this Circuit have disagreed on whether a principal is a final
education or trustees of common school districts appoint teachers ‘upon the recommendation of the superintendent of schools, for a probationary period of three years,’ . . . . [the] probationary period ‘may be discontinued at any time on the recommendation of the superintendent of schools, by a majority vote of the board of education or the trustees of a common school district,’ . . . . [and] [a]t the end of the probationary term, ‘the superintendent of schools shall make a written report to the board of education’ recommending the grant or denial of tenure.” Id. at 116 (quoting N.Y. Educ. Law § 3012). “[T]he critical inquiry[,]” however, “is not whether a [superintendent] generally has final policymaking authority[,] [but] rather . . . whether the [superintendent] is a final policymaker with respect to the particular conduct challenged in the lawsuit.” City of Waterbury, 542 F.3d at 37. Here, Plaintiffs challenge the Superintendent’s failure to adequately address and discipline students for harassment and bullying. Unlike the scheme for personnel appointments, the superintendent of a central school district does not have a statutory obligation to make recommendations to the school board with respect to discipline. Rather, the superintendent is bound to “enforce all provisions of law and rules and regulations relating to the management of the schools . . . under the direction of the board of education.” N.Y. Educ. Law § 1711(2)(b). Moreover, although the Board has the authority to “prescribe” the “powers and duties” of the Superintendent, see id. § 1711(3), which makes it possible that a superintendent could have policymaking authority over discipline, here Plaintiffs point to nothing in the record that demonstrates the Superintendent had the power or the duty to make recommendations as to discipline.
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policymaker”). A review of these cases suggest that, under certain circumstances, “a public school principal may be a final policymaker where the ‘harm that befell the plaintiff was under the principal’s control.’” Eldridge, 968 F. Supp. 2d at 562 (quoting Zambrano-Lamhaouhi v. N.Y.C. Bd. of Educ., 866 F. Supp. 2d 147, 175 (E.D.N.Y. 2011)); Marino v. Chester Union Free Sch. Dist., 859 F. Supp. 2d 566, 569 (S.D.N.Y. 2012) (“However, while broad rulemaking authority is vested in the school board by law, policymaking authority may not be so strictly limited. As a practical matter, principals are the highest ranking officials in the school and thus have policymaking authority in the day-to-day operations of the school.”); T.Z. v. City of New York, 635 F. Supp. 2d 152, 179 n.27 (E.D.N.Y. 2009), rev’d in part on other grounds, 634 F. Supp. 2d 263 (E.D.N.Y. 2009) (“A school principal has final policymaking authority in the management of the school and her conduct represents official district policy within the purview of the school.”); Lovell v. Comsewogue Sch. Dist., 214 F. Supp. 2d 319, 324 (E.D.N.Y. 2002) (holding that because the plaintiff contended that defendant principal “was responsible for the investigation into the students’ false sexual harassment complaint and he failed to take action in response to her complaints of sexual harassment” the plaintiff “c[ould] proceed under the theory that [the principal’s] conduct . . . represents official policy” of the school district); Rabideau v. Beekmantown Cent. Sch. Dist., 89 F. Supp. 2d 263, 268 (N.D.N.Y. 2000) (explaining that the New York “legislature did not intend to impose upon the board of education a duty to make and assume direct responsibility of enforcing rules reaching down into each classroom in the school system,” that the principal “was the highest ranking person in the school . . . directly responsible for discipline,” and, therefore, the principal’s “knowledge of her subordinate’s behavior and acquiescence, if not direct participation, in the conduct amounts to a custom or policy attributable to the [d]istrict”).
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Conversely, “[w]here the final authority for a particular matter is not within the principal’s control or is subject to review by another official or entity, the principal is not the final policymaker with respect to that matter.” Eldridge, 968 F. Supp. 2d at 562; see also T.P. ex rel. Patterson v. Elmsford Union Free Sch. Dist., No. 11-CV-5133, 2012 WL 5992748, at *5 (S.D.N.Y. Nov. 27, 2012) (holding that “neither a principal nor vice principal is a final policymaker with respect to decisions to suspend students for more than five days” because “[o]nly a superintendent or designee may suspend a student for more than five days, and that decision is subject to reversal by the board of education”); Dressler, 2012 WL 1038600, at *18 (holding “[b]ecause a principal is not a final policymaker when making an appealable schoollevel decision subject to the chancellor’s regulations, [the p]laintiff has failed to adduce any evidence of a policy that would make [the department of education] liable under Monell”); Meadows v. Lesh, No. 10-CV-223, 2011 WL 4744914, at *4 (W.D.N.Y. Oct. 6, 2011) (holding that under New York State law charter school principal does not have final policymaking authority); Shapiro v. N.Y.C. Dep’t of Educ., 561 F. Supp. 2d 413, 420-21 (S.D.N.Y. 2008) (dismissing ADA claims against defendant school district based on the principal’s conduct because “under New York law, New York City school principals do not have final policy making authority over employment decision[s] concerning teachers in their schools”). Therefore, “whether a principal is a final policymaker will depend upon state law and on the particular facts of the case.” Eldridge, 968 F. Supp. 2d at 562. Similar principles apply to whether a superintendent may be a policymaker for Monell purposes. See Tekula v. BayportBlue Point Sch. Dist., 295 F. Supp. 2d 224, 234 (E.D.N.Y. 2003) (denying the defendant’s motion to dismiss Section 1983 claim against the school district because it was plausible that “the superintendent has final policy making activity attributable to the [s]chool [d]istrict”);
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McDonald v. Bd. of Educ. of City of New York, No. 01-CV-1991, 2003 WL 21782685, at *4 (S.D.N.Y. July 31, 2003) (holding that the superintendent’s power to discharge employees “is circumscribed by the [c]hancellor and the [b]oard’s authority to overrule the superintendent,” and, accordingly, “the superintendent cannot be said to be the final policymaker”).
To support their claim that Steinberg and the principals are final policymakers with respect to how and when to impose discipline or address bullying and harassment in their schools, Plaintiffs rely on Steinberg’s testimony that he was the “person that’s in charge of most of the daily operations of the district.” (Steinberg 27; see Pls.’ Mem. 58). Further, Fisch testified that he had authority to decide what discipline was appropriate for certain misconduct. (See Fisch 256–57). Some courts in the Second Circuit have held that similar evidence was enough to suggest that principals have final policymaking authority for Monell purposes. See Marino, 859 F. Supp. 2d at 570 (denying the defendant school district’s motion for summary judgment because principal could be deemed a policymaker under Monell based on deposition testimony that “everything inside that school[,] okay, is under control of the school and the leaders in there” (internal quotation marks omitted)); Solomon v. Southampton U.F.S.D., No. 08CV-4822, 2010 WL 3780696, at *5 (E.D.N.Y. June 24, 2010) (testimony that principal was “responsible for hiring and staffing the intermediate school and for supervision of the staff at the school” was sufficient for a claim to survive a motion to dismiss a Title VII action on Monell grounds (internal quotation marks omitted)).
This Court concludes, however, that here Plaintiffs have failed to establish, “as a matter of law,” that Steinberg or the principals are “final policymakers” with respect to ensuring that students are free from anti-Semitism and bullying. Jeffes, 208 F.3d at 57. Instead, evidence in the record reveals that Steinberg and the principals had discretion to determine when to
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investigate bullying and harassment and how to respond to the behavior. The Second Circuit has “explicitly rejected the view that mere exercise of discretion [is] sufficient to establish municipal liability.” Anthony v. City of New York, 339 F.3d 129, 140 (2d Cir. 2003) (citing Jeffes, 208 F.3d at 57)). Moreover, the record here confirms that the Board had final policymaking authority with respect to discipline. (See Steinberg 25, 38–39; Carbone 9; Fisch 68; Boyle 42; Peters 336; Hopmayer 52). Cf. McDonald, 2003 WL 21782685, at *4 (explaining because the superintendent’s power was “circumscribed by . . . the Board’s authority to overrule the superintendent, . . . the superintendent cannot be said to be the final policymaker”). Specifically, Steinberg testified that the “Board of Education makes policy for the [D]istrict.” (Steinberg 27; Pls.’ Mem. 33). Furthermore, Plaintiffs acknowledge that although Steinberg and the principals helped draft or review the District’s Code of Conduct, it was ultimately “approved by the Board.” (Pls.’ Mem. 36). Accordingly, because New York Law provides that the Board, not Steinberg or the principals, has the power to “establish . . . rules and regulations concerning the order and discipline of the schools,” N.Y. Educ. Law § 1709, Plaintiffs point to no formal delegation of the Board’s policymaking authority to Steinberg or the principals, and the record demonstrates that the Board has policymaking and oversight authority with respect to the District’s disciplinary policies, the Court concludes that Plaintiffs have failed to carry their burden to establish that Steinberg and the principals are “final policymakers” as a matter of law. See Port Washington Teachers’ Ass’n, 478 F.3d at 500 (holding that school superintendent had “no rule-making authority” in regard to student discipline, as New York law had assigned that role to the Board.); Jeffes, 208 F.3d at 57–58 (“Where a plaintiff relies not on a formally
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declared or ratified policy, but rather on the theory that the conduct of a given official represents official policy, it is incumbent on the plaintiff to establish that element as a matter of law.”).
b. Deliberately Indifferent Policies and Practices Plaintiffs next contend that the District may be liable under § 1983 for its deliberately indifferent policies and practices. (Pls.’ Mem. 59). The Court agrees. “To establish deliberate indifference[,] a plaintiff must show that a policymaking official was aware of constitutional injury, or the risk of constitutional injury, but failed to take appropriate action to prevent or sanction violations of constitutional rights.” Jones, 691 F.3d at 81. “[D]eliberate indifference is a stringent standard of fault, and necessarily depends on a careful assessment of the facts at issue in a particular case.” Cash, 654 F.3d at 334 (internal citations and quotation marks omitted). “The operative inquiry,” in turn, “is whether those facts demonstrate that the policymaker's inaction was the result of conscious choice and not mere negligence.” Id (internal quotation marks omitted); see also Jones, 691 F.3d at 81 (“[D]emonstration of deliberate indifference requires a showing that the official made a conscious choice, and was not merely negligent.”). Accordingly, a jury may infer deliberate indifference “where the need to protect against constitutional violations was obvious, but the policymaker failed to make meaningful efforts to address the risk of harm to plaintiffs.” Cash, 654 F.3d at 334 (internal citations and quotation marks omitted). “A school district may be held liable for inadequate training, supervision[,] or hiring where the failure to train, hire[,] or supervise amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact.” Bliss v. Putnam Valley Cent.
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Sch. Dist., No. 06-CV-15509, 2011 WL 1079944, at *8 (S.D.N.Y. Mar. 24, 2011). The Second Circuit has identified three requirements to determine whether a “failure to train or supervise constitutes deliberate indifference.” Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007). The plaintiff must show “[1] that [the] policymaker knows to a moral certainty that her employees will confront a given situation . . . . [2] that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation . . . . [and] [3] that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights.” Id. (internal citations and quotation marks omitted). “A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (internal quotation marks omitted). “Policymakers’ continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action—the deliberate indifference—necessary to trigger municipal liability.” Id. (internal quotation marks omitted); see also City of Canton, 489 U.S. at 389 (explaining that a city may be liable under Section 1983 “[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality”). Moreover, “at the summary judgment stage, plaintiffs must identify a specific deficiency in the city's training program and establish that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation.” Jenkins, 478 F.3d at 94 (internal quotation marks omitted).
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Here, Plaintiffs have proffered sufficient evidence to survive summary judgment on Monell grounds based on the District’s response, or lack thereof, to anti-Semitic harassment. As discussed, there are issues of material fact as to whether the District had actual knowledge of the harassment that Plaintiffs allege. See supra § II(B)(2)(c). Moreover, there is specific evidence in the record that the Board had actual notice that school administrators were confronting numerous instances of anti-Semitic bullying. Cf. Jenkins, 478 F.3d at 94 (explaining that a plaintiff must show that “the policymaker knows to a moral certainty that her employees will confront a given situation” (internal quotation marks omitted)). Mrs. E. copied at least one member of the PBCSD School Board on four emails informing administrators that the harassment of her daughter for three years “escalated every year to the point that [T.E.] . . . beg[ged] [her] to not have to return to . . . school,” (Defs.’ 56.1 Resp. ¶¶ 211–12; Maazel Decl. Ex. 22; Winter 182), that Winter’s response to swastikas throughout the school was inadequate, (see Defs.’ 56.1 Resp. ¶ 216; Maazel Decl. Ex 24), that T.E. witnessed one student draw a picture on his stomach and say “it is a Hasidic Jew, so let’s shove pennies in his mouth,” (Defs.’ 56.1 Resp. ¶ 213; Maazel Decl. Ex. 25), and that T.E. suffered harassment on her bus from a high school student who had a history of “chanting white power and pro[-]Hitler statements” and threatened T.E. in the future, (Defs.’ 56.1 Resp. ¶ 218; Maazel Decl. Ex. 26). Further, Board member Greer was present at Mrs. E. and Mr. C.’s meeting with Steinberg on June 7, 2011, during which the parents discussed multiple incidents of anti-Semitic harassment that T.E. and O.C. suffered and asked administrators to take steps to address the problem. (See Defs.’ 56.1 Resp. ¶¶ 228–29, 234; Steinberg 268; Mr. C. 42–43, 46, 60). From this evidence, a
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reasonable jury could conclude that “there were circumstances putting [the District] on notice of [a] pattern of violations” of students’ rights. E.N. v. Susquehanna Tp. Sch. Dist., No. 09-CV1727, 2011 WL 3608544, at *7 (M.D. Pa. July 5, 2011) (finding that one specific instance of inappropriate sexual behavior by a teacher and the school district’s knowledge that the teacher had violated the school’s policies in the past put defendants “on notice of [a] pattern of violations” by the teacher); Karlen v. Westport Bd. of Educ., No. 07-CV-309, 2010 WL 3925961, at *11 (D. Conn. Sept. 30, 2010) (holding that parents’ complaints to district superintendent and school principals were sufficient to put school board on actual notice about peer-to-peer racial harassment).
Moreover, the emails and the meeting provided the Board with information that antiSemitic harassment presented administrators and teachers with “difficult choice[s]” concerning discipline and prevention, there was a pattern of school personnel “mishandling the[se] situation[s],” and that those choices had “cause[d] the deprivation of [students’] rights” to be free from harassment and bullying based on their race. Jenkins, 478 F.3d at 94; see L.C. ex rel C.P.C. v. William Penn Sch. Dist., No. 05-CV-997, 2005 WL 2396922, at *5 (E.D. Pa. Sept. 28, 2005) (holding that “[p]laintiffs may establish that the alleged failure to train” employees on how to handle student-on-student violence “amounted to deliberate indifference because: (1) the [s]chool [d]istrict . . . knew that their employees would confront violent students . . . who attacked innocent students; (2) such situations would involve difficult questions of discipline and punishment, or such situations resulted in the school employees’ failure to deal appropriately with violent students; and (3) the wrong choice by the school employee, i.e.[,] failure to handle
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student-on-student violence, will frequently cause deprivation of other students’ constitutional rights because the violent students would continue their attacks on innocents”). The Court also notes that Defendants have not presented any evidence nor do they make any claim that Meier or Greer or the Board in general took steps to address harassment, monitor the administrators’ response to anti-Semitism or bullying in general, or independently investigate Plaintiffs’ claims after the emails or the June 2011 meeting. See Ware v. Unified Sch. Dist. No. 492, Butler Cnty., State of Kan., 902 F.2d 815, 820 (10th Cir. 1990) (holding that there was sufficient evidence “to create a jury question on whether the [school] board acted with deliberate indifference to” a teacher’s First Amendment rights by approving an administrator’s recommendation “[n]otwithstanding . . . indications that the board knew [the] recommendation was in retaliation for [the plaintiff’s] position . . . [and] made no independent investigation.”).
Plaintiffs also “identify . . . specific deficienc[ies] in the [District’s] training program” and have presented enough evidence for a jury to determine whether “th[ose] deficienc[ies] [are] closely related to the ultimate injury, such that [they] actually caused the constitutional deprivation.” Jenkins, 478 F.3d at 94 (internal quotation marks omitted). Specifically, Plaintiffs allege that the District (i) failed to train employees to maintain files of harassers before middle school, (see Steinberg 104; Winter 54–55, 57); (ii) had no policy or training requiring school personnel to document, report, or address anti-Semitic graffiti in school, (see Carbone 55–57, 65–66); (iii) had no policy requiring the investigation of harassment in school, (see id. at 342); (iv) had no requirement for staff or teachers to report anti-Semitic or bias-related harassment, (see id. at 152–54, 176–77; Winter 375; Boyle 124–25); (v) had no tracking system for
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harassment and bias incidents, (see Carbone 252); and (vi) had no policy or guidelines for how to complete a Violent and Disruptive Incident Report (“VADIR”) under New York State law, (see Steinberg 346; Carbone 197). See E.N., 2011 WL 3608544, at *7 (holding that a school district’s failure “to formally investigate and make a record of sexual assault complaints could be arguably . . . viewed as increasing the likelihood that sexual harassment would go unchecked and possibly become recurrent and predictable so as to suggest that a failure to train reflects deliberate indifference”); see also Hill v. Hood, No. 04-CV-678, 2006 WL 39092, at *4 (S.D. Ill. Jan. 6, 2006) (allowing the plaintiff to proceed on a failure to train theory against the school district because, among other things, even though the district had a policy for searches and seizures at school in place and the superintendent testified that “copies of the policy were distributed to all principals and assistant principals in the [d]istrict,” and “that they were supposed to share and review the policy with their staffs[,] . . . no specific followup was done to be sure such information was shared”).
In light of evidence of the Board’s knowledge of anti-Semitic harassment and its failure to respond in any reasonable way, including through training of school administrators and teachers, a jury could find that the facts demonstrate the District’s “inaction was the result of conscious choice and not mere negligence.” Cash, 654 F.3d at 334 (internal quotation marks omitted). Accordingly, Defendants are not entitled to Summary Judgment under Monell.
D. Plaintiffs’ Official Capacity And State Law Claims Defendants also move to dismiss Plaintiffs’ claims against Defendants in their official capacity, as such allegations are redundant, given Plaintiffs’ argument that the District is liable
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under Monell. See Schubert v. City of Rye, 775 F. Supp. 2d 689, 699 (S.D.N.Y. 2011) (noting that “where the governmental entity can itself be held liable for damages as a result of its official policy, a suit naming the legislators in their official capacity is redundant”). As Plaintiffs “do not press the[ir] official capacity claims,” (Pls.’ Mem. 60), the Court will grant Defendants’ request that they be dismissed.
Finally, the claims asserted by Plaintiffs under the provisions of New York Civil Rights Law are governed by similar standards as Plaintiffs’ § 1983 claims. See Lorenz v. Managing Dir., St. Luke’s Hosp., No. 09-CV-8898, 2010 WL 4922267, at *9 (S.D.N.Y. Nov. 5, 2010) (noting that federal courts interpreting New York state civil rights law have looked to federal law as a guide to their analysis of discrimination claims), adopted by, 2010 WL 4922541 (S.D.N.Y. Dec. 2, 2010). Accordingly, for the reasons discussed above, the Court denies Defendants’ Motion with respect to Plaintiffs’ state law claims against the District and T.E. and O.C.’s claims against Fisch and Winter in their individual capacities.
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III. CONCLUSION For the reasons stated above, Defendants' Motion for Summary Judgment is granted in
part and denied in part. In particular, the Court grants the motion to dismiss Plaintiffs' claims
against the individual defendants in their official capacity as redundant with Plaintiffs' claims against the District. The remainder of Defendants' Motion is denied. The Clerk of the Court is respectfully requested to terminate the pending motion. (See Dkt. No. 50.) SO ORDERED. Dated : November 3, 2014
White Plains, New York KE ETH M. KARAS UNITED STATES DISTRICT JUDGE
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 CaseCa7s:1e21-c4v--40327330,3D-KocMuKmeDnto8c7u,m0e5n/0t 1/12101F5,ile1d490954/0512/,1P5agPea1goef 12 of 2

MANDATE United States Court of Appeals FOR THE SECOND CIRCUIT _________________

S.D.N.Y.—N.Y.C. 12-cv-2303 Karas, J.

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of February, two thousand fifteen.

Present:

Peter W. Hall, Raymond J. Lohier, Jr.,
Circuit Judges, Jeffrey A. Meyer,*
District Judge.

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: _M_a_y_0_1_,_2_0_1_5____

T. E., by her next friend and parent Sherri Eccleston, et al., Plaintiffs-Appellees,
v. Philip G. Steinberg, Superintendent of Pine Bush Central School District, in his official and individual capacities, et al.,
Defendants-Appellants, Pine Bush Central School District, et al.,
Defendants.

14-4373

Appellees move to dismiss the appeal. Upon due consideration, it is hereby ORDERED that Appellees’ motion is GRANTED and the appeal is DISMISSED. This Court has determined that it lacks jurisdiction over this appeal because a final order has not been issued by the district court as contemplated by 28 U.S.C. § 1291, see Coopers & Lybrand v. Livesay, 437 U.S. 463,
* Hon. Jeffrey A. Meyer, of the United States District Court for the District of Connecticut, sitting by designation.

MANDATE ISSUED ON 05/01/2015

CaseCa7s:1e21-c4v--40327330,3D-KocMuKmeDnto8c7u,m0e5n/0t 1/12101F5,ile1d490954/0512/,1P5agPea2goef 2 of 2 467 (1978), and the order being appealed does not fall within the collateral order doctrine, see Bolmer v. Oliveira, 594 F.3d 134, 140 (2d Cir. 2010); Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk
2

 
 Case 7:12-cv-02303-KMK Document 100 Filed 11/24/14 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------X T.E., by her next friend and parent, SHERRI ECCLESTON; O.C. and D.C., by their next friend and parent, DAVID COHEN; A.R. and D.R., by Their next friend and parent, JERROLD ROSEN,
Plaintiffs,
- against -

NOTICE OF APPEAL No. 7:12-CV-2302-KMK-PED

PINE BUSH CENTRAL SCHOOL DISTRICT; PINE BUSH CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION; PHILIP G. STEINBERG, Superintendent of Pine Bush Central School District, in his official and individual capacities; JOHN BOYLE, Principal of Crispell Middle School, in his official capacity; ERIC WINTER, Principal of Pine Bush Elementary School and former Assistant Principal of Crispell MiddleSchool, in his individual capacity; STEVE FISCH, former Principal of Pine Bush Elementary School, in his individual capacity; ROBERT PETERS, former Assistant Principal of Crispell Middle School, in his individual capacity; and AARON HOPMAYER, Principal of Pine Bush High School, in his official capacity,
Defendants. -----------------------------------------------------------------x

PLEASE TAKE NOTICE that Defendants PHILIP G. STEINBERG, ERIC WINTER, and STEVEN FISCH appeal to the United States Court of Appeals for the Second Circuit, from that portion of the Opinion and Order, dated November 3, 2014, and entered on November 4, 2014 [Document 93], that denied summary judgment to said Defendants on the basis that they were not entitled to qualified immunity.

Case 7:12-cv-02303-KMK Document 100 Filed 11/24/14 Page 2 of 2

Dated:

November 24, 2014
Respectfully submitted,
/S Maree Sneed Maree Sneed (MS 3148) HOGAN LOVELLS US LLP Attorney for Defendants 555 Thirteenth Avenue NW Washington, D.C. 20004 (202) 637-5600 maree.sneed@hoganlovells.com
Daniel Petigrow Laura Wong-Pan THOMAS, DROHAN, WAXMAN, PETIGROW & MAYLE, LLP Attorneys for Defendants 2517 Route 52 Hopewell Junction, NY 12533 (845) 592-7000 dpetigrow@tdwpm.com lwong-pan@tdwpm.com
Joan Gilbride KAUFMAN BORGEEST & RYAN LLP Attorneys for Defendants 120 Broadway New York, New York 10271 (212) 994-6517 jgilbride@kbrlaw.com

2

 
 Case 7:12-cv-02303-KMK Document 151 Filed r0.I, 7.·,/0. 6/15 Page 1 of 4

UNITED STATES DISTRICT' COURT SOUTHERN DISTRICT OF NEW YORK
---------------,
I.E., et a!.
Plaintiffs, -v-

Case No. 12-CV-2303 (KMK)

PINE BUSH CENTRAL SCHOOL DISTRICT, et al.
Defendants.

KENNETH M. KARAS, District Judge: On June 29, 2015, Plaintiffs submitted a letter from Ilann M. Maazel to the Court
concerning the Settlement Agreement and the infant compromise hearing, now scheduled for July 9, 2015. (Dkt. No. 149.) Attached to the letter, Plaintiffs submitted a Declaration ofllann M. Maazel, a copy of the Settlement Agreement, a proposed order approving the Settlement Agreement, the minutes of the Pine Bush Central School District Board for June 9, 2015, a summary of costs incurred by Plaintiffs in this case, an Affidavit Declaration of S.E. and an accompanying exhibit, and an Affidavit Declaration of D.C. and an accompanying exhibit. (!d.)
"Under Rule 83.2(a)(l) of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, ' [a]n action by or on behalf of an infant or incompetent shall not be settled or compromised, or voluntarily discontinued, dismissed or terminated, without leave of the Court embodied in an order, judgment or decree."' Camac v. Long Beach CitySch. Dist., No. 09-CV-5309, 2013 WL 991355, at *2 (E.D.N.Y. Mar. 13, 2013) (quoting Local Civ. R. 83.2(a)(l )). In particular, "[i]n this judicial district, a proposed settlement involving a claim made by an infant must be reviewed by a judicial officer, who must determine whether: (I) the best interests of the infant are protected by the terms and conditions of the

Case 7:12-cv-02303-KMK Document 151 Filed 07/06/15 Page 2 of 4
proposed settlement; and (2) the proposed settlement, including any legal fees and expenses to be paid, as part of the proposal, are fair and reasonable." Martegani v. Cirrus Design Corp., 687 F. Supp. 2d 373, 377 (S.D.N.Y. 2010); see also Mateo v. United States, No. 06-CV-2647, 2008 WL 3166974, at *2 (S.D.N.Y. Aug. 6, 2008) (same). "[A] strong presumption exists that a settlement is fair and reasonable where (i) the settlement is not collusive but was reached after arm's length negotiation; (ii) the proponents have counsel experienced in similar cases; and (iii) there has been sufficient discovery to enable counsel to act intelligently." Camac, 2013 WL 991355, at *2 (alterations and internal quotation marks omitted).
"An attorney for a minor child must establish that a proposed settlement for the minor is fair and reasonable, and that includes, necessarily, any proposed attorney compensation." Martegani, 687 F. Supp. 2d at 378 (citing N.Y. C.P.L.R. § 1208(b); N.Y. Jud. Law§ 474). "The burden is on counsel to keep and present records from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required; where adequate contemporaneous records have not been kept the court should not award the full amount requested." !d. (alteration and internal quotation marks omitted). This is so even where the guardian of a child has entered into a contingency fee agreement. See id.; see also Johnson v. City ofNew York, No. 08-CV-3673, 2010 WL 5818290, at *4 (E.D.N.Y. Dec. 13, 2010) (explaining that "[t]he Court must ensure that the allocation of attorney's fees from the settlement proceeds represents 'suitable compensation for the attorney for his services,' notwithstanding contingency agreements with a party" (quoting N.Y. Jud. Law§ 474)). "[T]o determine whether a proposed attorney fee is reasonable, a court should evaluate what a reasonable paying client would be willing to pay for the legal services, in other words, the appropriate market rate for counsel over the course of the number of hours appropriately
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worked." Martegani, 687 F. Supp. 2d at 378. Indeed, "the United States Supreme Court has stated that 'the party seeking an award of fees should submit evidence supporting the hours worked and the rates claimed."' !d. (quoting Hensley v. Eckerhart, 461 U.S. 424,433 (1983) (alterations omitted)).
Moreover, in the context of an infant compromise hearing. ''[ w !hen multiple attorneys are involved in [an inquiry into whether fees are fair and reasonable], fee splitting agreements offer no more than non-mandatory guidance because the court is under a duty to evaluate the quantity and quality of the representation by each attorney in order to ensure that the fees are appropriate." Wagner & Wagner. LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 90 (2d Cir. 2010). Accordingly, it is appropriate for the Court to "inquire as to the roles played and services provided by each firm." !d. Finally, "[a] party's request for costs is generally governed by Local Civil Rule 54.1 ," which requires, among other things, that "the party must include as part of the request 'an affidavit that the costs claimed are allowable by law, are correctly stated and were necessarily incurred"' and ''[b]ills for the costs claimed must be attached as exhibits." D.J. ex. rel. Roberts v. City (~(New York, No. 11-CV5458, 2012 WL 5431034, at *9 (S.D.N.Y. Oct. 16, 2012) (quoting Local Civ. R. 54.1)).
In light of these considerations, Plaintiffs are to supplement the record by providing the Court with the following information: (1) the experience of each law firm and/or lawyer in representing plaintiffs in similar cases; (2) evidence supporting the hours that each attorney and/or law firm worked and the rates that they claim; (3) a copy of the retainer agreement
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between Plaintiffs and counsel (see Decl. ofllann M. Maazel in Support of Proposed Order of Compromise ("Maazel Decl.") ~ 23 (Dkt. No. 149-1).); (4) a copy ofthe co-counsel agreement (see id. ~ 28 n.1); and (5) a request for costs in accordance with the requirements ofLocal Civil Rule 54.1, by no later than July 7, 2015.
SO ORDERED.

DATED:

July 6, 2015 White Plains, New York

JNITED STATES DISTRICT JUDGE

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 Case 7:12-cv-02303-KMK Document 168 Filed 07/10/15 Page 1 of 2
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,

I

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

T.E., et al. -v-

Plaintiffs,

Case No. 12-CV-2303 (KMK) ORDER

PINE BUSH CENTRAL SCHOOL DISTRICT, et al.
Defendants.

KENNETH M. KARAS, District Judge: WHEREAS Plaintiffs commenced the above-captioned action (the "Action"); WHEREAS all Parties have reached an amicable settlement of the claims in the Action; WHEREAS the parties submitted to the Court for approval the Settlement and General
Release, attached as Exhibit A to the Declaration ofllann M. Maazel dated June 29, 2015; and WHEREAS on July 9, 2015, the Court held a hearing and determined that the best
interests of the two infant Plaintiffs will be served by the proposed Settlement and General Release for the reasons stated on the record;
NOW, THEREFORE, IT IS HEREBY ORDERED, as follows: 1. The Settlement and General Release, attached as Exhibit A to the Declaration of
Ilann M. Maazel dated June 29, 2015, is approved. 2. The proposed trusts for the infant Plaintiffs T.E. and O.C. are approved.

Case 7:12-cv-02303-KMK Document 168 Filed 07/10/15 Page 2 of 2

3. Attorneys' fees of$1,493,333 and disbursements of $77,648 are approved, which

together amount to a total payment of $1 ,570,981 to Plaintiffs' counsel.

The Clerk of the Court is respectfully directed to close this case. The Court will retain

jurisdiction as per the terms of the Settlement Agreement.

SO ORDERED.

DATED:

July 10,2015 White Plains, New York

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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

T.E., O.C., and D.C., et al.,
Plaintiffs, -v-
PINE BUSH CENTRAL SCHOOL DISTRICT, et al.,
Defendants.

Case No. 12-CV-2303(KMK) OPINION & ORDER

Appearances
Adele Phyllis Kimmel, Esq. Public Justice Washington, DC Counsel for Plaintiffs
O. Andrew F. Wilson, Esq. Ilann M. Maazel, Esq. Zoe Antonia Salzman, Esq. Emery Celli Brinckerhoff & Abady, L.L.P. New York, NY Counsel for Plaintiffs
Michael David Meth, Esq. Meth Law Offices, P.C. Chester, NY Counsel for Plaintiffs
Joan M. Gilbride, Esq. Kaufman, Borgeest & Ryan, L.L.P. New York, NY Counsel for Defendants Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, John Boyle, Steve Fisch, Robert Peters, and Aaron Hopmayer
Maree Sneed, Esq. Hogan Lovells, L.L.P. Washington, DC Counsel for Defendants Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter John Boyle, Steve Fisch, Robert Peters, and Aaron Hopmayer

Laura Wong-Pan, Esq. Thomas Drohan Waxman Petigrow & Mayle, L.L.P. Hopewell Junction, NY Counsel for Defendants Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter John Boyle, Steve Fisch, Robert Peters, and Aaron Hopmayer KENNETH M. KARAS, United States District Judge:
Plaintiffs, five Jewish students who attended schools in the Pine Bush Central School District (“PBCSD” or “the District”), bring this Action against the District and several PBCSD Administrators under Title VI of the Civil Rights Act of 1964, 42 U.S.C §§ 2000d et seq. (“Title VI”), the Equal Protection Clause, U.S. Const. amend. XIV, § 1, under 42 U.S.C. § 1983 (“Section 1983”), and New York Civil Rights Law §§ 40-c and 40-d.1 Plaintiffs’ claims arise from anti-Semitic harassment that Plaintiffs allegedly suffered while they were enrolled in the District. Defendants move for summary judgment with respect to the claims brought by T.E., D.C., and O.C., pursuant to Rule 56 of the Federal Rules of Civil Procedure.2 For the following reasons, Defendants’ Motion is granted in part and denied in part.
I. BACKGROUND A. Factual History The harassment alleged by Plaintiffs in this case spans half a decade and three separate schools within PBCSD: Pine Bush Elementary School (“PBE”), Crispell Middle School
1 As Plaintiffs were all minors at the time this suit was filed, the Court will refer to them using their initials. In the interest of maintaining Plaintiffs’ relative anonymity, the Court will refer to the parents of these Plaintiffs as each student’s “mother” or “father,” or Mr. C. or Mrs. E, rather than disclosing Plaintiffs’ surnames.
2 Defendants do not move for summary judgment as to Plaintiffs A.R. and D.R. 2

(“Crispell”), and Pine Bush High School (“PBHS”).3 In addition to the District itself, Plaintiffs named the PBCSD Administrators who oversaw these schools as Defendants. These Defendants include Philip Steinberg, (“Steinberg” or “the Superintendent”), the Superintendent of PBCSD from 2008 to 2013; Steve Fisch (“Fisch”), the Principal of PBE from 1991 to 2011; John Boyle (“Boyle”), the Principal of Crispell since 2002; Robert Peters (“Peters”), the Assistant Principal of Crispell from 2007 to 2010; Eric Winter (“Winter”), the Assistant Principal of Crispell from 2010 to 2011; and Aaron Hopmayer (“Hopmayer”), the Principal of PBHS from 2007 through the time of his deposition. (Fisch Deposition Tr. (“Fisch”) 17 (Wilson Decl. Ex. 4 (Dkt. No. 79)); Boyle Deposition Tr. (“Boyle”) 16–17, 20 (Wilson Decl. Ex. 5 (Dkt. No. 79)); Hopmayer Deposition Tr. (“Hopmayer”) 28 (Wilson Decl. Ex. 7 (Dkt. No. 79)); See Declaration of Ilann M Maazel (“Maazel Decl.”) Ex. 2 (Dkt. No. 63) (chart summarizing administrators that were in charge during the relevant times and at the relevant locations to Plaintiffs’ claims)).)
For the purposes of the instant Summary Judgment Motion, the Court will consider the harassment allegedly suffered by Plaintiffs D.C., T.E., and O.C., as well as the District’s response to that harassment. The specifics of many of the incidents of harassment alleged, as well as the District’s response—or lack thereof—are contested, even though Defendants do not dispute many of them for the purposes of the instant Motion. (See Defs.’ Rule 56.1 Statement (“Defs.’ 56.1.”) (Dkt. No. 76); Pls.’ Response to Defs.’ Rule 56.1 Statement (“Pls.’ 56.1 Resp.”) (Dkt. No. 71); Defs.’ Reply to Pls.’ 56.1 Counterstatement (“Defs.’ 56.1 Resp.”) (Dkt. No. 81).)4
3 PBE educates students from kindergarten through fifth grade, Crispell educates students from sixth through eighth grade, and PBHS educates students in grades nine through twelve.
4 Defendants’ Reply to Plaintiffs’ 56.1 Counterstatement reiterates Plaintiffs’ factual assertions before noting whether Defendants dispute or concede these facts for the purposes of the instant Motion. The Court will cite to this document, where possible, for the reader’s ease of reference. As Defendants do not dispute the majority of Plaintiffs’ statements, the Court will
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Plaintiffs’ allegations catalogue years of harassment at the hands of their fellow students, but a few key incidents, and the District’s responses thereto, are informative for the purposes of the instant Motion.5
1. Plaintiff D.C. D.C. is a male student who claims to have suffered anti-Semitic harassment and to have been subject to physical and verbal threats during his enrollment in PBCSD from sixth through twelfth grade. (See Defs.’ 56.1 Resp. ¶ 50; D.C. Deposition Tr. (“D.C.”) 28 (Wilson Decl. Ex. 11 (Dkt. No. 79)).) He alleges that, throughout this time, other students physically and verbally threatened him by “pellet[ing]” change at him, telling him he “was going to be burned in an oven,” and that “if [he] did anything [in response to this harassment,] that they knew where [he] lived.” (Defs.’ 56.1 Resp. ¶¶ 51–53; D.C. 28.) D.C. also witnessed “swastikas everywhere in the high school and in the middle school” that he testified “would be impossible” for teachers to miss. (Defs.’ 56.1 Resp. ¶ 55; D.C. 11.) He further describes “fairly constant” harassment, during his years in PBCSD, (D.C. 66–67), during which time he was called “countless” names, including “dirty jew,” “filthy jew,” “stupid Jew,” “fat Jew,” “Jew faggot,” “fucking Jew kike,” “ashes,” “dust,” and “mocky fuck.” (Defs.’ 56.1 Resp. ¶¶ 56–57; D.C. 68–69.) When D.C. was in sixth grade, a girl who “bull[ied D.C.] constantly” on the school bus yelled “F’ing Jew” while D.C. was on the bus. (Defs.’ 56.1 Resp. ¶ 290; D.C. 29.) Mr. C.,
only highlight where such factual disputes exist, rather than where they are undisputed. 5 The Court recognizes that some of the language that Plaintiffs allege to have been
directed against them is undeniably offensive and may be painful for some readers. Nonetheless, the Court does not see fit to censor or euphemize Plaintiffs’ allegations in this Opinion. As Plaintiffs’ counsel stated at oral argument, “the language matters in this case, and there’s a way in which, by not articulating some of these things, they lose their force.” (See July 17, 2014 Oral Argument Transcript (“July 17, 2014 Tr.”) 39.)
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D.C.’s father, reported the slur to Boyle, (see Defs.’ 56.1 Resp. ¶ 291; D.C. 29; Mr. C.’s Deposition Tr. (“Mr. C.”) 10, 13 (Wilson Decl. Ex. 12 (Dkt. No. 79))), and told Boyle that D.C. “had been the butt of many Jewish jokes,” that the bus incident “crossed a very severe line,” and that D.C. was being harassed by “multiple kids over the course of that year” and was experiencing intolerance from “a lot of kids,” (Defs.’ 56.1 Resp. ¶¶ 292–93; Mr. C. 10–13). When Boyle told Mr. C. that the incident would be handled on an individual basis, Mr. C. told Boyle that “this isn’t an individual thing, this is systemic.” (Defs.’ 56.1 Resp. ¶¶ 294–295; Mr. C. 13.) Mr. C. further told Boyle that D.C. was hearing Jewish jokes from older students on the school bus, which transported both middle and high school students. (See Defs.’ 56.1 Resp. ¶ 296; Mr. C. 14.) During a follow-up call about this incident, Boyle informed Mr. C. that a girl involved in the harassment had been spoken to. (See Defs.’ 56.1 Resp. ¶ 267; Mr. C. 15.) However, Boyle had no response to Mr. C.’s question about how the District would handle “all the other kids that [we]re making Jewish jokes,” (Defs.’ 56.1 Resp. ¶ 298; Mr. C. 15), and also did not follow up with Mr. C. about addressing anti-Semitism in the school, (Mr. C. 57–58; Boyle 309). Boyle does not remember Mr. C. reporting harassment of D.C. by multiple children, nor any discussion with Mr. C. of systemic harassment or anti-Semitism, but instead recalls the incident involving “one kid on the bus.” (Boyle 167–70.) D.C. attempted to discuss this incident with Boyle, but Boyle “dismissed it so that he could reprimand [D.C.] for playing video games in the computer lab, when all the other students were also playing video games in the computer lab.” (Defs.’ 56.1 Resp. ¶ 301; D.C. 29.)
When D.C. was in seventh grade, students repeatedly sang and chanted a “song about stomping the niggers and killing the Jews and washing off their blood,” in both the school cafeteria near D.C.’s table, and on D.C.’s bus. (D.C. 73.) When students sang this “white power
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song” on D.C.’s bus, D.C. complained to the bus driver, but the white power chants continued—in fact, other students found out that D.C. had complained and the harassment “got worse.” (Defs.’ 56.1 Resp. ¶¶ 314–17; D.C. 72–77.)
When D.C. was in eighth grade, D.C. notified his science teacher of a “giant swastika . . . [approximately] a foot in diameter” in the boys’ bathroom. (Defs.’ 56.1 Resp. ¶¶ 306–07; D.C. 11–12.) The teacher saw the swastika, and it was removed. (See Defs.’ 56.1 Resp. ¶¶ 308-09; D.C. 11–13.) However, “a couple days” later, the swastika reappeared and D.C. reported it to his Spanish teacher. (Defs.’ 56.1 Resp. ¶¶ 309–10; D.C. 11–12.) Although D.C. could not be sure whether the second swastika he reported was removed, he testified that other swastikas in the bathroom were not removed. (See Defs.’ 56.1 Resp. ¶ 311; D.C. 13.)
When D.C. was in ninth grade, another student “would constantly berate [D.C],” telling him that D.C.’s “ancestors died in the Holocaust,” calling D.C. “ashes,” and pantomiming the blowing of dust off his hands while telling D.C. that he was “just ashes.” (Defs.’ 56.1 Resp. ¶¶ 56, 318; D.C. 69–70.) The same student would slap D.C. in the face as the student got off the bus and smirk at D.C. (See Defs.’ 56.1 Resp. ¶ 56; D.C. 70.) Other students joined in this harassment, slapping D.C. in the face and telling him “shut up, D., or I will burn you in an oven.” (Defs.’ 56.1 Resp. ¶ 57; D.C. 70.) The bus driver did nothing in response to this harassment, which continued throughout D.C.’s ninth grade year. (See Defs.’ 56.1 Resp. ¶¶ 319–20; D.C. 85–86.) D.C. also witnessed students in the school cafeteria and classrooms performing “Hitler salutes,” both to each other and to D.C. (Defs.’ 56.1 Resp. ¶ 321; D.C. 72–73, 85–86.) D.C. testified that these students “didn’t hide” their behavior and made “no attempt to conceal” it, and that D.C. “c[ouldn’t] really imagine [adults in the school] missing it.” (Defs.’ 56.1 Resp. ¶ 322; D.C. 86.)
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When D.C. was in tenth grade, a student in D.C.’s trigonometry class was “constantly making anti-Semitic jokes” and picking on another Jewish student. (Defs.’ 56.1 Resp. ¶ 323; D.C. 92–95.) D.C. confronted the student, who was sitting “in the first row” only “two feet” from the teacher, Ms. King. (Defs.’ 56.1 Resp. ¶¶ 324–328; D.C. 92–95.) Ms. King told the offending student to “stop it.” (Defs.’ 56.1 Resp. ¶ 328; D.C. 94.) Ms. King spoke with the offending student, during which time the student discussed “how he could kick [D.C.’s] ass.” (Defs.’ 56.1 Resp. ¶ 329; D.C. 94.) While Defendants do not dispute this exchange for the purposes of the instant motion, Ms. King claims to have provided the offending student with an oral warning to “make sure that [he] understood that he could not make comments like that at PBHS,” and she claims that the student “apologized to [Ms. King],” “indicated . . . that he would not do it again,” and “did not threaten D.C. during [the] conversation.” (Defs.’ 56.1 Resp. ¶ 328; Affidavit of Kelly King (“King Aff.”) ¶¶ 11–12 (Dkt. No. 82).)
Later, in Ms. King’s math class, another student shouted that another classmate was a “fucking jew” and smirked at D.C, but was not punished. (Defs.’ 56.1 Resp. ¶ 331; D.C. 94.) Defendants dispute this later incident, as Ms. King claims to have neither heard the statement nor had the statement reported to her—in fact, Ms. King claims that she “did not ever hear students make anti-Semitic jokes about any student” when D.C. was in her class. (Defs.’ 56.1 Resp. ¶ 323; King Aff. ¶¶ 3, 13, 14.)
During his time at Crispell and PBHS, D.C. witnessed “swastikas everywhere” and testified that they were so prominently displayed that “[i]t would be impossible for [teachers or administrators] to miss the swastikas.” (Defs.’ 56.1 Resp. ¶ 55; D.C. 11.) Specifically, D.C. witnessed swastikas in the school bathrooms and on binders, lockers, and desks. (See Defs.’ 56.1 Resp. ¶ 55; D.C. 13–14.) He also witnessed swastikas in the textbooks issued to students
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for use in class or available in the school library. (See D.C. 19.) He reported swastika-defaced textbooks to his teachers “a couple of times,” (Defs.’ 56.1 Resp. ¶ 303; D.C. 20), but Plaintiffs claim that the teachers and District officials never effectively addressed the problem and that swastikas remained in “a majority of the textbooks,” (Defs.’ 56.1 Resp. ¶ 305; D.C. 17–19). The District disputes the textbook grafitti, claiming that a search of “almost 500 textbooks” used for “at least ten years at Crispell” yielded “no such swastikas” and only two books with grafitti that were “even arguably anti-Semitic.” (Defs.’ 56.1 Resp. ¶¶ 304–05; Affidavit of John Boyle (“Boyle Aff.”) ¶¶ 14–16 (Dkt. No. 73).)
The harassment D.C. suffered throughout his time in the District made him feel unsafe, as though “[e]very day . . . was the wors[t] day of [his] life” and led D.C. to contemplate suicide. (Defs.’ 56.1 Resp. ¶¶ 66–67; D.C. 123–24.) After the bus incident in sixth grade, D.C. felt that “Mr. Boyle didn’t really care or couldn’t do anything about [the harassment],” and that “the system had apathy towards [D.C.], so [he] didn’t know who to talk to and [D.C.] thought [he] was on [his] own.” (Defs.’ 56.1 Resp. ¶ 302; D.C. 41.) Furthermore, “after alerting the teachers in eighth grade and seeing their . . . inability . . . to correct the problem,” D.C. felt “overwhelmed” and “did not report a lot of swastikas because [he] felt like [he] was fighting a losing battle and [that he] couldn’t make a difference.” (Defs.’ 56.1 Resp. ¶ 312; D.C. 20.)
2. Plaintiff T.E. T.E. is a female student who claims to have suffered anti-Semitic harassment and witnessed anti-Semitic incidents during her time at PBE and Crispell. Like D.C., T.E. witnessed swastika grafitti in the bathroom and on textbooks, desks, people, books, binders, notebooks, walls, and posters. (See Defs.’ 56.1 Resp. ¶ 33; T.E. Deposition Tr. (“T.E.”) 196, 267–68 (Wilson Decl. Ex. 8 (Dkt. No. 79)).)
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Several of the incidents about which T.E. complains occurred during the 2008–2009 school year, when T.E. was in fifth grade at PBE. (See Defs.’ 56.1 Resp. ¶ 68; T.E. 6, 17.) In March 2009, a student on T.E.’s bus called her a “Jew” and gave the middle finger to T.E. and her mother. (See Defs.’ 56.1 Resp. ¶ 96; T.E. 34.) Mrs. E. reported the incident to both the bus driver, (see T.E. 35), and PBE Principal Fisch, (see Defs.’ 56.1 Resp. ¶ 97; Fisch 111–13.) Fisch discussed the incident with the offending student, who admitted to calling T.E. “a Jew and dirty Jew and other epithets.” (Defs.’ 56.1 Resp. ¶ 98; Fisch 122.) The student was given a 50-minute “recess detention,” and his parents were called, but the student was not forced to apologize to T.E. or her mother, do any assignment, or be subject to suspension or after-school detention. (See Defs.’ 56.1 Resp. ¶ 99; Fisch 131–134.)
In April 2009, two of T.E.’s classmates—one of whom was the same student who had called T.E. a “Jew” on the bus—showed T.E. swastikas that were drawn in their planners. (See Defs.’ 56.1 Resp. ¶ 102; T.E. 25–30.) Mrs. E., T.E.’s mother, reported this incident to Fisch, who allegedly told her “[w]hat’s the big deal, they didn’t aim [the swastikas] towards [T.E.], they were just writing in their book.” (Defs.’ 56.1 Resp. ¶¶ 104–05; Mrs. E. Deposition Tr. (“Mrs. E.”) 56–57 (Wilson Decl. Ex. 9 (Dkt. No. 79)).) While Defendants do not dispute Plaintiffs’ description of this incident for the purposes of the instant motion, they do note that “T.E. testified that she happened to see the swastikas, not that [the students] showed them to her,” and also contest the date on which this incident occurred. (See Defs.’ 56.1 Resp. ¶ 102.) Defendants also note that, during Fisch’s deposition, he denied saying “[w]hat’s the big deal” to Mrs. E. (See Defs.’ 56.1 Resp. ¶ 105.) After Mrs. E. persisted, Fisch agreed to “talk with the kids.” (Defs.’ 56.1 Resp. ¶ 107; Mrs. E. 58.) He found swastikas in both students’ planners, spoke with the students for 15–20 minutes, and further spoke with Superintendent Steinberg,
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who did not recommend discipline. (See Defs.’ 56.1 Resp. ¶¶ 108–10, 113; Fisch 59–63; Steinberg Deposition Tr. (“Steinberg”) 133, 169–70 (Wilson Decl. Ex. 1 (Dkt. No. 79)).) The Parties dispute whether any “disciplinary consequences” resulted from this incident, as Defendants assert that an oral warning or conference with the Principal is considered discipline under the District’s Code of Conduct. (See Defs.’ 56.1 Resp. ¶ 111.) Fisch testified that he spoke with the offending students about “the significance of the swastika” and “what an offensive symbol it was to a particular group [including Jewish people].” (Fisch 62.)
Also in April 2009, T.E. saw a swastika carved into the slide on the PBE playground. (See Defs.’ 56.1 Resp. ¶ 76; T.E. 40–42.) Mrs. E. reported the swastika to Fisch no later than May 1, 2009. (See Defs.’ 56.1 Resp. ¶ 78; Fisch 152; Mrs. E. 73–75.) Fisch saw the swastika and claims to have put in a work order to have it removed. (See Defs.’ 56.1 Resp. ¶¶ 79–80; Fisch 155–59.) Mrs. E. claims to have raised the issue with Fisch in June 2009 and again in September 2009, however, the swastika was still not removed. (See Defs.’ 56.1 Resp. ¶¶ 82–84; Fisch 165–67; Mrs. E. 76.) Defendants dispute the June and September reports, as Fisch testified that he did not remember Mrs. E. discussing the issue with him on those dates. (See Defs.’ 56.1 Resp. ¶¶ 83–85; Fisch 166–68.) At oral argument before the Court on July 17, 2014, Defendants continued to dispute whether Mrs. E. notified Fisch two or four times about the swastika, but contend that this dispute is irrelevant for the purposes of their Motion for Summary Judgment, as Fisch filed a work order to have the grafitti removed. (See July 17, 2014 Tr. 15.) In any case, Plaintiffs allege that between April 2009 and April 2010, Fisch never checked to confirm that the swastika had been removed, nor did anyone tell him that the swastika was removed, rather he simply “believe[d] it had been taken care of.” (Defs.’ 56.1 Resp. ¶¶ 86–87; Fisch 162, 178–79.)
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On April 19, 2010, when T.E. was in sixth grade and enrolled at Crispell, Mrs. E. saw that the swastika was still present on the slide at PBE, took a picture, and emailed the photo to the District’s Assistant Superintendent. (See Defs.’ 56.1 Resp. ¶¶ 88, 140; Maazel Decl. Ex. 19; Mrs. E. 100–05, 129–30.) Defendants do not dispute this account, for the purposes of the instant Motion, but note that it is not clear that the swastika observed was the same one that existed in April 2009. (See Defs.’ 56.1 Resp. ¶ 88; Fisch 179; July 17, 2014 Tr. 11.) In the same email, Mrs. E. noted that students on T.E.’s bus had been making “swastika symbols with their hands,” performing Hitler salutes, and discussed “do[ing] something . . . to celebrate” the “anniversary of Hitler’s birthday.” (Defs.’ 56.1 Resp. ¶ 141; Maazel Decl. Ex. 19; Mrs. E. 102, 130.) The Assistant Superintendent forwarded Mrs. E.’s email to Fisch, Hopmayer, and Boyle and suggested that Fisch get the swastika removed. (See Defs.’ 56.1 Resp. ¶¶ 89–90; Fisch 169–73.) Fisch replied to suggest that “we go out and look at [the swastika grafitti] on cannabis culture day[, April 20, 2010].” (Defs.’ 56.1 Resp. ¶ 90; Fisch 173–76.) Fisch and the Assistant Superintendent then inspected the slide on April 20, 2010 and found the swastika. (See Defs.’ 56.1 Resp. ¶¶ 91–92; Fisch 177–78.) Fisch conducted no investigation into the origin of the grafitti and no one was disciplined as a result. (See Defs.’ 56.1 Resp. ¶ 95; Fisch 163.)
Despite the fact that the Assistant Superintendent forwarded Mrs. E.’s April 19, 2010 email reporting students making “swastika symbols with their hands,” saluting Hitler, and planning to do something to “celebrate” the “anniversary of Hitler’s Birthday,” to Fisch, Boyle, Hopmayer, and Peters, (see Defs.’ 56.1 Resp. ¶¶ 141–42; Maazel Decl. Ex. 19; Mrs. E. 102; Fisch 181–82), nobody interviewed any students on T.E.’s bus or asked T.E. which students were making the offensive symbols and salutes, (see Defs.’ 56.1 Resp. ¶¶ 143–44; Carbone Deposition Tr. (“Carbone”) 297–99, (Wilson Decl. Ex. 2 (Dkt. No. 79)).). Defendants do not
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dispute that Fisch, Boyle, Peters, and Hopmayer did nothing in response to Mrs. E.’s complaint. (See Defs.’ 56.1 Resp. ¶¶ 146–49; Fisch 185; Boyle 181–192; ); Peters Deposition Tr. (“Peters”) 269–79 (Wilson Decl. Ex. 6 (Dkt. No. 79)); Hopmayer 308–09, 313.)
T.E. did not attend school on April 20, 2010, but when she boarded the bus the next day, the driver “yelled at [her] in front of everybody on the bus” and “called [her] a liar.” (Defs.’ 56.1 Resp. ¶¶ 151–52; T.E. 56, 62–63.) When T.E. took out her phone to contact Mrs. E., the driver told T.E. to “put [her] phone away,” was “screaming in [her] face,” and told T.E. to “stop crying.” (Defs.’ 56.1 Resp. ¶ 153; T. E. 65.) After this incident, T.E.’s mother drove T.E. to school for the rest of the year. (See Defs.’ 56.1 Resp. ¶ 154; T.E. 66.)
During T.E.’s seventh grade year, the anti-Semitic harassment continued. In April 2011, Mrs. E. sent an email to Winter, Steinberg, and others explaining that a student in T.E.’s English class had called T.E. “[c]rispy” and said that “she should have been burned.” (Defs.’ 56.1 Resp. ¶ 168; Steinberg 263; Maazel Decl. Ex. 8.) T.E. also reported similar comments made by another student to Winter, specifically that T.E. “[w]as crispy” and “should have been burned a while ago.” (Defs.’ 56.1 Resp. ¶ 169; T.E. 115.)6 The Parties dispute whether discipline resulted from the reporting of these incidents. Defendants claim that Winter “investigated by speaking with T.E.” and the offending students, and that Winter gave one student an oral warning and counseled him about the statement. (Defs.’ 56.1 Resp. ¶ 169.) Defendants further claim that Winter determined that the statement by the second student had been “made eight months before the report” and that “T.E. had called him ‘fat,’” but otherwise do not dispute Plaintiffs’ assertion that no discipline resulted from this incident. (Id.) Moreover, Defendants do not dispute
6 Defendants’ 56.1 Response misquotes T.E.’s testimony. The Court quotes directly from the transcript of T.E.’s testimony.
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Plaintiffs’ assertion that when Mrs. E. told Winter that T.E. was “coming home on a daily basis upset and afraid to go to school . . . that there [were] swastikas everywhere [including] in her classroom, [and] that its being ignored, th[at] kids are allowed to treat her this way,” Winter responded by saying that “anti-Semitism is prevalent in the community . . . and that it’s rather hard to stop something that’s inbred in the community.” (Defs.’ 56.1 Resp. ¶ 169(d–e); Mrs. E. 117–19.)
On April 28, 2011, in T.E.’s math class, one student said that another student “didn’t know something because he was a Jew.” (Defs.’ 56.1 Resp. ¶ 207; T.E. 160.) Defendants dispute whether this incident is reflected in Winter’s notes and whether T.E.’s testimony refers to the Amended Complaint or Winter’s notes, but Defendants do not dispute that the incident occurred. (See Defs.’ 56.1 Resp. ¶ 207.)
In May 2011, T.E. reported a swastika on her desk to her music teacher, who “immediately” took the desk out of the room and notified Winter. (Defs.’ 56.1 Resp. ¶ 175; T.E. 167–68.) The Parties dispute whether the swastika remained on the desk for “two weeks,” as T.E. testified, or was promptly removed by Winter and a custodian the same day, as Winter testified. (Defs.’ 56.1 Resp. ¶ 175; T.E. 167–68; Winter Deposition Tr. (“Winter”) 187–88 (Wilson Decl. Ex. 3 (Dkt. No. 79)).) Regardless, Defendants do not dispute that no student was disciplined as a result of the graffiti, nor that T.E.’s next music desk also was defaced with a swastika. (See Defs.’ 56.1 Resp. ¶ 175; T.E. 170.)
Around the same time, T.E. reported anti-Semitic grafitti in the boys’ bathroom to Winter. (See Defs.’ 56.1 Resp. ¶ 176; T. E. 242–43.) The graffiti read “[f]uck the Jews” and also featured a Star of David with a male eighth-grade student’s name inside. (See Defs.’ 56.1 Resp. ¶ 176; T.E. 242.) In response to T.E.’s reporting, Winter told her that she “was looking for
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the trouble now.” (Defs.’ 56.1 Resp. ¶ 176; T.E. 243.) The Parties dispute whether any investigation resulted from this report, but Winter testified that he spoke with the male eighthgrade student, who reported that he had not experienced any anti-Semitism, apart from the grafitti. (See Defs.’ 56.1 Resp. ¶ 176(d); Winter 426.) Defendants do not dispute Plaintiffs’ contention that no discipline was imposed with respect to this grafitti. (Defs.’ 56.1 Resp. ¶ 175; Winter 425–26.)
By May 24, 2011, T.E. was “stressed every single day going to school . . . to the point [where T.E. was] upset every day [when she came] home and complained how terrible it was at school.” (Defs.’ 56.1 Resp. ¶ 209; Mrs. E. 173–75.) Mrs. E. emailed Winter, Steinberg, Carbone, Boyle, and PBCSD Board member Eric Meier (“Meier”), telling them that the harassment of her daughter over a period of three years “has escalated every year to the point that [T.E.] now begs me to not have to return to this school.” (Defs.’ 56.1 Resp. ¶¶ 211–12; Maazel Decl. Ex. 22; Winter 182.) In fact, Mrs. E. had multiple communications with Winter about anti-Semitic harassment, (see Defs.’ 56.1 Resp. ¶ 184; Winter 181, 388–89), and Winter admitted to being informed of “18 or more anti-Semitic incidents” in the 2010–2011 school year, (Defs.’ 56.1 Resp. ¶ 185; Winter 400).
In response to Mrs. E.’s complaints, Mr. Winter told her “that [T.E. and O.C.] would not have [had to] know about most of the Swastikas if they had not asked people to inform them if they saw any,” and that if they “weren’t asking to be shown the offenses they wouldn’t be as stressed /upset by them.” (Defs.’ 56.1 Resp. ¶¶ 214–15; Maazel Ex. 24; see Winter 208–09.) Mrs. E. memorialized Winter’s statements in a May 26, 2011 email to Winter, to which she copied Steinberg, Carbone, Boyle, Meier, PBCSD Board member Lloyd Greer (“Greer”), and
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others. (See Defs.’ 56.1 Resp. ¶ 216; Maazel Decl. Ex 24.)7 On May 31, 2011, Mrs. E. emailed Winter, Steinberg, Carbone, Boyle, Meier, and others,
relaying an incident that T.E. witnessed on the bus in which one student had drawn a picture on his stomach and “said it is a Hasidic Jew, so let’s shove pennies in his mouth.” (Defs.’ 56.1 Resp. ¶ 213; Maazel Decl. Ex. 25; T.E. 161–65.)8 Defendants do not dispute that the offending student was not disciplined for this incident, though they note that he refused to return to the school and withdrew from the District. (See Defs.’ 56.1 Resp. ¶ 213.)
Also on May 31, 2011, Mrs. E. emailed Winter, Steinberg, Carbone, Boyle, Meier, and others to tell them that she had received “a frantic message from [T.E.] regarding [a PBHS student on her bus who] has a history of chanting white power and pro[-]Hitler statements.” (Defs.’ 56.1 Resp. ¶ 218; Maazel Decl. Ex. 26; T.E. 152–53.) This email stated that the older student “pushed [T.E.] in [a seat] and sat with her” and said that when T.E. “is in 8th grade that she is going to get her ass kicked.” (Maazel Decl. Ex. 26.) Neither Winter, Steinberg, Carbone, nor Boyle spoke with the offending student, interviewed T.E. or witnesses about the incident, imposed any discipline, or stopped the offending student from riding the bus with T.E. (See Defs.’ 56.1 Resp. ¶ 219.) Defendants note that “[n]o punishment could be imposed on [the offending student] because he was graduating and no longer rode the bus.” (Id.) T.E. testified that she witnessed students making Hitler salutes and singing white power chants on the school
7 Defendants’ 56.1 Response acknowledges that Mrs. E. sent the May 26, 2011 email to “others,” but does not mention Board member Lloyd Greer by name. The copy of the email and Mrs. E’s testimony, however, supports that Greer was one of the individuals that Mrs. E. copied on the email. (Maazel Decl. Ex. 24; Mrs. E. 168–69).
8 Although Mrs. E’s email states that one student was involved in the relevant incident, T.E. testified that one student “lifted up his shirt and said ‘[l]ook at the Hasidic Jew,’” and then another student said, “‘[l]et’s shove pennies in its mouth.’” (T.E. 161–65).
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bus on a “daily” basis. (Defs.’ 56.1 Resp. ¶ 34; T.E. 51, 90, 197–98.) When T.E. was in sixth or seventh grade at Crispell, Mrs. E. had “a conversation with
Mr. Steinberg regarding what was going on in the schools and how upset [T.E.] was.” (Defs.’ 56.1 Resp. ¶ 201; Mrs. E. 109.) Mrs. E. told Steinberg about the swastika grafitti “on the bathroom walls,” “on the desks,” “on the lockers,” and “on people’s notebooks,” and expressed that T.E. “does not feel comfortable here.” (Defs.’ 56.1 Resp. ¶¶ 202–03; Mrs. E. 110.) Steinberg responded by saying that “when [he] had this issue when [his] kids were in school, [he] moved.” (Defs.’ 56.1 Resp. ¶ 204; Mrs. E. 110.)
When T.E. was in eighth grade, she continued to hear anti-Semitic slurs “on almost a daily basis” and recalls that “people would use Jew like they would use the N word.” (Defs.’ 56.1 Resp. ¶ 264; T.E. 196.) She also saw swastikas “everywhere” in the school, (Defs.’ 56.1 Resp. ¶ 265; T.E. 196), though Defendants dispute this point based on T.E.’s failure to provide specifics about this grafitti upon cross-examination, (see Defs.’ 56.1 Resp. ¶ 265; T.E. 276–80). T.E. also recalls people “salut[ing] Hitler all the time.” (Defs.’ 56.1 Resp. ¶ 266; T.E. 197.)
At some point in T.E.’s eighth grade year, she noticed swastika graffiti in one of the school bathrooms. (See Defs.’ 56.1 Resp. ¶ 267; T.E. 196–97.) T.E. “told [Boyle] exactly where it was,” but Boyle claimed not to see it. (Defs.’ 56.1 Resp. ¶ 267; T.E. 196.) When T.E. went in the bathroom later, it was still there. (See Defs.’ 56.1 Resp. ¶ 268; T.E. 196–97.)
On January 23, 2012, during T.E.’s math midterm examination, she witnessed several students “saluting Hitler.” (Defs.’ 56.1 Resp. ¶ 272; T.E. 213–15.) The Parties dispute whether T.E. reported this incident to the Crispell Assistant Principal Christopher Mummery, (see Defs.’ 56.1 Resp. ¶ 273; T.E. 216; Affidavit of Christopher Mummery (“Mummery Aff.”) ¶ 18 (Dkt. No. 75)), but do not dispute that no investigation was conducted or that nobody was disciplined
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with respect to this incident, (see Defs.’ 56.1 Resp. ¶ 274). On January 24, 2012, a student sitting in the front of T.E.’s health class made an anti-
Semitic “joke” about Jews and concentration camps. (See Defs.’ 56.1 Resp. ¶ 275; T.E. 216–17; Mummery Aff. ¶ 20.) T.E. reported this statement to Mummery, who met with the student and gave him two lunch detentions. (See Defs.’ 56.1 Resp. ¶ 276, 278; T.E. 218; Mummery Aff. ¶¶ 20–22.) Mummery also asserted that he “directed [the offending student] to write an essay about the Holocaust” as part of his punishment. (Mummery Aff. ¶ 21.)
On January 25, 2012, a student threw a coin at T.E. in the Crispell hallway. (See Defs.’ 56.1 Resp. ¶¶ 41, 279; T.E. 220–28.) Defendants concede that this incident was reported to Boyle, but state that the students Boyle questioned disputed T.E.’s accusation. (See Defs.’ 56.1 Resp. ¶ 280; Boyle 85–86.)
The same day, T.E. told her mother that “if she had to go back to the school ever again she was going to have a nervous breakdown.” (Defs.’ 56.1 Resp. ¶ 281; Mrs. E. 201.) Mrs. E. took T.E. to Mobile Mental Health, to meet with a counselor “who said that . . . [Crispell] was [not] a healthy place for her.” (Defs.’ 56.1 Resp. ¶ 282; Mrs. E. 201.) T.E. subsequently left PBCSD and was home schooled. (See Defs.’ 56.1 Resp. ¶ 283; T.E. 235–36; Mrs. E. 201–02.)
3. Plaintiff O.C. O.C. is a female student, the sister of D.C., and a classmate of T.E., who also claims to have suffered anti-Semitic harassment during her time at PBE, Crispell, and PBHS. O.C. testified to observing swastika grafitti in the bathrooms and on books, desks, her yearbook picture, her school locker, binders, windowsills, and on the cafeteria door. (See Defs.’ 56.1 Resp. ¶ 47; O.C. Deposition Tr. (“O.C.”) 52–54, 84, 89, 107–08, 119–20, 137, 215–16 (Wilson Decl. Ex 10 (Dkt No. 79)).)
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During O.C.’s sixth grade year, 2009–2010, O.C. suffered several incidents of harassment. When her class was watching a Holocaust video, a student made “his hand in the shape of a gun[,] [pointed it] at [O.C.’s] head[,]” and, when T.E. asked what he was doing, replied that “he was killing Jews.’” (Defs.’ 56.1 Resp. ¶ 127; O.C. 9; T.E. 77.) T.E. and O.C. reported this to their teacher, who spoke with the offending student in the hallway. (See Defs.’ 56.1 Resp. ¶¶ 128–29; O.C. 9–12.) When the student returned to class, he was crying. (See Defs.’ 56.1 Resp. ¶ 129; O.C. 12.) However, the same student continued to “mak[e] ethnic slurs towards [O.C.],” even after this incident. (Defs.’ 56.1 Resp. ¶ 130; O.C. 13.)
The same year, while at a picnic with her class, another student “found a penny” in the volleyball pit, “picked it up and said ‘[l]ook I am being a Jew.’” (Defs.’ 56.1 Resp. ¶ 46; O.C. 14.) When O.C. told the student that his statement was offensive, “he took the sand and smashed it in [O.C.’s] hair.” (Defs.’ 56.1 Resp. ¶ 46; O.C. 14–15.) A fight between O.C.’s thenboyfriend and the offending student resulted. (See Defs.’ 56.1 Resp. ¶ 131; O.C. 14–18; T.E. 81–84.) Mrs. E. was told that the anti-Semitism that started [the fight] “didn’t matter” and that the school would only look into the fight. (Mrs. E. 113.)
O.C. also testified another student threw pennies at her “during recess for an entire month” in sixth grade. (Defs.’ 56.1 Resp. ¶ 49: O.C. 79–80.) At some point that year, Mr. C. reported to Peters that O.C. had pennies thrown at her and that she had been subjected to antiSemitic jokes. (See Defs.’ 56.1 Resp. ¶ 133; Mr. C. 15–18.) Peters told Mr. C. that he would “look into it,” (Defs.’ 56.1 Resp. ¶ 134; Mr. C. 18–19), but Peters does not remember Mr. C. ever complaining about anti-Semitism at Crispell, (see Defs.’ 56.1 Resp. ¶ 133; Peters 214).
When O.C. was in seventh grade (2010–2011), students called her “Christ killer” and “dirty Jew,” and told anti-Semitic jokes, including “what is the difference between a pizza and a
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Jew[?] [W]hen it goes in the oven a pizza doesn’t scream.” (Defs.’ 56.1 Resp. ¶ 48; O.C. 99–100.)
On April 14, 2011, O.C. told Boyle that her best friend had been held down and that two students had drawn a swastika on her friend’s face. (See Defs.’ 56.1 Resp. ¶ 170; O.C. 68; Boyle 7.) Defendants dispute several aspects of this incident, as Boyle testified that he spoke with the student involved, who said that the students were “joking” and that the incident was not meant to be offensive. (Defs.’ 56.1 Resp. ¶ 170(a); Boyle 97.) When O.C. spoke with Boyle, she was crying, and O.C. testified that Boyle asked her why she found the incident offensive if it wasn’t directed toward her. (See Defs.’ 56.1 Resp. ¶ 170(b); O.C. 68.) Defendants dispute this exchange, as Boyle testified that he never made such a statement to O.C. and instead testified that he remembered “saying it’s offensive to everybody.” (Defs.’ 56.1 Resp. ¶ 170(c); Boyle 198.) On a separate occasion in seventh grade, two students held O.C.’s hands behind her back at recess and “tried to shove a quarter down [her] throat.” (Defs.’ 56.1 Resp. ¶ 45; O.C. 63–64.) On April 27, 2011, a student called O.C. a “F’ing Jew.” (Defs.’ 56.1 Resp. ¶ 172; Winter 95.) Winter gave this student two hours of detention and his parents were notified. (See Defs.’ 56.1 Resp. ¶ 172(a); Winter 110; Sneed Decl. Ex. EE (Dkt. No. 77).)
One day in seventh grade English class, O.C. saw a swastika on her desk and reported it to Winter. (See Defs.’ 56.1 Resp. ¶ 174; O.C. 43–44; Winter 89–90.) The swastika was removed, but “a different swastika” appeared on her desk “[t]he next day.” (Defs.’ 56.1 Resp. ¶ 174; O.C. 45–46.) O.C. again reported it to Winter and, the following day, another student told O.C. that there were “three swastikas on [O.C.]’s desk with [O.C.’s] name” in the swastikas and “die Jew” or “damn Jew.” (Defs.’ 56.1 Resp. ¶ 174; O.C. 45–46, 53–54.) O.C. asked her English teacher if she could see Winter, and the teacher “made a speech in front of the class” to
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the effect that students “shouldn’t get up during class” and that O.C. should “sit at a different desk.” (Defs.’ 56.1 Resp. ¶ 174(h); O.C. 49.) O.C. later reported this incident to Winter because she “felt threatened and [she] wanted to figure out who did it.” (Defs.’ 56.1 Resp. ¶ 174; O.C. 47.) O.C. testified that Winter told her English teacher “to just watch the desk,” (Defs.’ 56.1 Resp. ¶ 174(j); O.C. 48), though Defendants dispute this and suggest that Winter conferred with the teacher, looked at seating charts, and spoke to O.C. and the student who witnessed the grafitti, but could not determine who was responsible, (see Defs.’ 56.1 Resp. ¶ 174(j); Winter 92–93). The Parties dispute whether O.C. later told Winter that a student had admitted to being the perpetrator, as there is no evidence that O.C. told Winter that the student had confessed, and Winter was under the impression that the student was not responsible. (See Defs.’ 56.1 Resp. ¶ 174(k); O.C. 48; Winter 93.)
During their seventh grade year, T.E. and O.C. regularly reported anti-Semitic harassment to Winter. (See Defs.’ 56.1 Resp. ¶ 182; Winter 60–61, 70–71, 77, 88, 95, 97, 113, 141, 189, 303-04, 393–94, 425.) The girls complained to Winter so frequently that he told them to “stop coming as often as [they] did,” and that they “were looking for trouble.” (Defs.’ 56.1 Resp. ¶ 159; T.E. 102.) In response, T.E. and O.C. began writing down each incident of antiSemitic harassment and “bring[ing] it to [Winter] at the end of the week,” to which Winter responded that they “were now just looking for trouble and that [they] were causing [their] own problems.” (Defs.’ 56.1 Resp. ¶ 160; T.E. 102–03.)
The same year, Mr. C. had “at least three phone conversations” with Winter about the anti-Semitic harassment that O.C. suffered, specifically that O.C. was “called Christ killer, dirty Jew, stinking Jew, ha[d] pennies thrown at her and . . . [found] swastikas,” including the one near O.C.’s yearbook picture. (Defs.’ 56.1 Resp. ¶¶ 177–78; Mr. C. 20–22.) In response, Winter
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said that he would “deal with it on an individual basis.” (Defs.’ 56.1 Resp. ¶ 179; Mr. C. 21.) Mr. C. told Winter that “this isn’t an individual problem, this is systemic, and . . . a much broader problem and you cannot deal with it individually.” (Defs.’ 56.1 Resp. ¶ 180; Mr. C. 22.) The Parties dispute whether Winter did “anything to address . . . systemic anti-Semiti[c] harassment and bullying in the school.” (Defs.’ 56.1 Resp. ¶ 181; Mr. C. 59.) Defendants submit that, during Winter’s year as Crispell Assistant Principal, “there were three anti-bullying assemblies, a District[-]wide anti-bullying seminar for parents in June 2011, and bullying and anti-Semitism were addressed within the curriculum, including through a Holocaust unit in eighth grade.” (See Defs.’ 56.1 Resp. ¶ 181; Affidavit of Joan Carbone (“Carbone Aff.”) ¶¶ 12–13, 30 (Dkt. No. 51).)
On June 15, 2011, a student showed T.E. a swastika “made out of pipe cleaner” and told T.E. that he was going to give it to O.C. (Defs.’ 56.1 Resp. ¶ 251; O.C. 55–56, T.E. 95–96, Winter 303–06). During the last week of seventh grade, O.C. reported to Winter that a swastika had been drawn near her photo in another student’s yearbook. (See Defs.’ 56.1 Resp. ¶ 253; O.C. 84–85; Winter 393–97.) Winter documented the name of the student who had drawn the swastika in his notes and crossed out the symbol with a marker. (See Defs.’ 56.1 Resp. ¶ 253(b); O.C. 85; Winter 393). The Parties dispute whether the District imposed discipline on the student responsible for the drawing, beyond merely speaking with the student, but Winter testified that he imposed a two-day out of school suspension for both the pipe-cleaner and yearbook incident, and wrote a letter to the student’s mother about the suspension and misconduct. (See Defs.’ 56.1 Resp. ¶ 253(c); Winter 305–06).
When O.C. was in eighth grade (2011–2012), she reported a drawing of a swastika and the word “gay” on a poster of President Obama to two teachers. (See Defs.’ 56.1 Resp. ¶ 284,
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OC 103–04; TE 269; Mummery Aff. ¶ 8.) The Parties dispute whether O.C. reported the swastika to Mummery once or twice before he removed it. (See Defs.’ 56.1 Resp. ¶ 285; O.C. 104; Mummery Aff. ¶¶ 7–9.) The Parties also dispute whether any action was taken or whether an investigation was made to determine who had defaced the poster. (See Defs.’ 56.1 Resp. ¶ 286; Mummery Aff. ¶ 8; Boyle 42.)
O.C. also told Mummery that a student had drawn a swastika on her locker. (See Defs.’ 56.1 Resp. ¶ 287; O.C. 90–93.) Mummery testified that the grafitti was a Star of David rather than a swastika, but, regardless, he removed the grafitti from O.C.’s locker and had the offending student perform research and write an essay about ths history of the Star of David. (See Defs.’ 56.1 Resp. ¶ 288; Mummery Aff. ¶¶ 9–10 and Ex. B.)
The anti-Semitic incidents continued when O.C. enrolled in ninth grade at PBHS. She heard “ethinic slurs” and “Jew” in the PBHS hallways “every day.” (Defs.’ 56.1 Resp. ¶ 44; O.C. 217–18.) She was called a “f’ing Jew,” (Defs.’ 56.1 Resp. ¶ 289; O.C. 211–12), and also witnessed students threaten to hold another student down so that they could draw a swastika on the student, (see O.C. 213–15). In April 2013, O.C. noticed a swastika on a door in the cafeteria. (See Defs.’ 56.1 Resp. ¶ 47(k), 289; O.C. 215.) When she reported it to a security guard, he told her that the swastika had “been there five years.” (Defs.’ 56.1 Resp. ¶ 47(k), 289; O.C. 215–16.) After O.C. reported the swastika on the door, PBHS Principal Hopmayer asked the security guard to investigate but ultimately could not determine who drew the swastika; however, Hopmayer instructed a school custodian to remove it from the door. (See Defs.’ 56.1 Resp. ¶ 47(k); Hopmayer 375–84.)
4. The District’s Response In response to Plaintiffs’ allegations, the District contends that it responded appropriately
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to each of the incidents of which it was aware. Moreover—and in response to Plaintiffs’ allegation that the District never took widespread steps to address anti-Semitism among PBCSD’s students—the District lists a number of measures it took to prevent harassment and bullying generally. With respect to Plaintiffs D.C., T.E., and O.C., the District points to two assemblies held at these Plaintiffs’ schools.
In May 2009, when T.E. and O.C. were in fifth grade at PBE, Fisch held an assembly to discuss the “bullying problem” in the fifth grade class and sent a letter to students’ parents informing them about the consequences of “any verified complaints about bullying behavior . . . from any school related area including the bus.” (Defs.’ 56.1 Resp. ¶ 122; Fisch 139–42.) Fisch did not discuss anti-Semitism in the assembly, despite the fact that the assembly was held after the incidents in PBE involving swastikas on a slide and in student notebooks, and after a student called T.E. a “dirty Jew” on the bus. (Defs.’ 56.1 Resp. ¶ 122; Fisch 296–97.)
On June 10, 2011, when T.E. and O.C. were in seventh grade, Crispell held an assembly in which a Holocaust survivor addressed a group of seventh grade students. (See Defs.’ 56.1 Resp. ¶¶ 222–23; Boyle 47.) While Defendants do not dispute Plaintiffs’ contention that “no one addressed anti-Semitism in Pine Bush [S]chools” at this assembly, (Defs.’ 56.1 Resp. ¶ 223; Steinberg 264), Defendants note that both Winter and Steinberg spoke at the assembly and that Boyle testified that “Winter spoke of anti-Semitism or of discrimination,” (Defs.’ 56.1 Resp. ¶ 223; Boyle 158–59). While the Holocaust survivor spoke, one student told T.E. that “that was fucking stupid.” (Defs.’ 56.1 Resp. ¶ 224; T.E. 255; Winter 294.) Winter spoke with the student and made him apologize to the guest speaker. (See Defs.’ 56.1 Resp. ¶ 224; Winter 294–95.) Another student was removed from the assembly because she was “talking nonstop.” (Defs.’ 56.1 Resp. ¶ 223; O.C. 71; Winter 292–93.) After the assembly, O.C. overheard people saying
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that the assembly was a waste of their time. (See Defs.’ 56.1 Resp. ¶ 226; O.C. 71.) On June 7, 2011, Mrs. E. and Mr. C. met with Steinberg, Greer, and others. (See Defs.’
56.1 Resp. ¶ 228; Steinberg 268–69.) In this meeting, the parents told Steinberg about the swastikas, name-calling, Holocaust “jokes,” and that students had called their children “ashes” and “crispy.” (Defs.’ 56.1 Resp. ¶ 229; Mr. C. 46, 60.) They also showed Steinberg pictures of some of the swastikas that T.E. and O.C. had taken, and told Steinberg that the girls were “singled out and being bullied for being Jewish” and that T.E. and O.C. did not feel safe and wanted “to go to another school system” if Steinberg “c[ouldn’t] fix the problem.” (Defs.’ 56.1 Resp. ¶¶ 230–32; Mr. C. 46.) Mr. C. asked Steinberg to invite groups to school such as the AntiDefamation League and to require online classes for the teachers. (Defs.’ 56.1 Resp. ¶ 234; Mr. C. 42–43.) The parents also requested that Steinberg allow T.E. and O.C. to transfer to another middle school and provide transportation to the new school. (See Defs.’ 56.1 Resp. ¶ 235; Mr. C. 49–50; Steinberg 271; Boyle 269–70.) Steinberg told them that “he didn’t know that the school would pay for that.” (Defs.’ 56.1 Resp. ¶ 236; Mr. C. 50.)
On June 14, 2011, Mr. C. emailed Steinberg requesting that he “[p]lease talk to the girls SOON [as t]hey continue to hear slurs on a daily basis.” (Defs.’ 56.1 Resp. ¶ 247; Maazel Decl. Ex. 28; Steinberg 284–85.) The same day, Mrs. E. emailed Winter, Steinberg, and others to say that she had “been reporting these issues . . . for 3 years and there has been no change,” and that the “current system of handling it on a case basis is not working. It has increased to being a daily occurrence.” (Defs.’ 56.1 Resp. ¶ 249; Maazel Decl. Ex. 29; Steinberg 287–88.) The following day, Mrs. E. emailed Winter, Steinberg, and others and said that “[w]e are still waiting for Mr. Steinberg to go speak with the girls.” (Defs.’ 56.1 Resp. ¶ 250; Maazel Decl. Ex. 29.)
On June 17, 2011, Steinberg met with T.E. and O.C. (See Defs.’ 56.1 Resp. ¶ 240; 24

Steinberg 285.) In this meeting, the girls asked to transfer to a different middle school. (See Defs.’ 56.1 Resp. ¶ 241; Steinberg 315; Boyle 269, O.C. 73–78; T.E. 120–21, 177–79.) The Parties dispute whether Steinberg refused to pay for a bus for O.C. and T.E. (See Defs.’ 56.1 Resp. ¶ 242; O.C. 73–78; T.E. 120–21; 177–79; Boyle 269–70; Steinberg 315–16; Mrs. E. 187–88.) Defendants submit that Steinberg informed Mrs. E. in June 2011 that T.E. and O.C. could transfer but that he did not have bus transportation available at the time, and requested that Mrs. E. “speak [to] him over the summer.” (Defs.’ 56.1 Resp. ¶ 242; Steinberg 315–17.) Steinberg claims that he “never heard from [Mrs. E.] after that meeting.” (Defs.’ 56.1 Resp. ¶ 242; Steinberg 316.)
The Parties dispute whether the District’s schools had any anti-bullying efforts in place that specifically addressed anti-Semitism prior to June 2011. (See Defs.’ 56.1 Resp. ¶¶ 383–85; Steinberg 234–35; Fisch 147; Boyle 47.) The District contends that its anti-bullying and tolerance programs and curriculum were “geared toward tolerance for all races and religions and sometimes specifically mentioned anti-Semitism.” (Defs.’ 56.1 Resp. ¶¶ 383–85; Carbone Aff. ¶¶ 1–36 (cataloguing the District’s anti-bullying programs).) The District further argues that anti-Semitism is discussed in the District curriculum. (Defs.’ 56.1 Resp. ¶¶ 383–85; Carbone Aff. ¶¶ 11–13.)
The Parties also dispute whether any letter was ever sent to parents or students about anti-Semitic conduct in a PBCSD school, (Defs.’ 56.1 Resp. ¶ 386), though Defendants dispute this point by referring to letters sent to individual students’ parents, explaining that such letters are always sent to students who receive suspensions, (see Defs.’ 56.1 Resp. ¶ 386; Maazel Decl. Exs. 38, 39). As an example, Defendants cite the letter sent to the parents of the student who made a swastika out of pipe cleaners and showed it to T.E. (See Maazel Decl. Ex 38.)
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In addition, the Parties dispute whether any District employee met with parents as a group to discuss anti-Semitism, (see Defs.’ 56.1 Resp. ¶ 387; Fisch 235; Winter 431–32), though the District argues that a meeting between Steinberg, Mr. C., and Mrs. E. during which they discussed the harassment of T.E. and O.C. constituted such a meeting, (see Defs.’ 56.1 Resp. ¶ 387; Steinberg 268–69). Regardless, Defendants concede that no survey was conducted to study anti-Semitism or bullying in the District’s schools. (See Defs.’ 56.1 Resp. ¶ 346; Steinberg 388; Fisch 234; Boyle 327.) The Parties also dispute whether administrators and teachers were trained about anti-Semitic bullying issues, (see Defs.’ 56.1 Resp. ¶ 389; Boyle 195–96, 301–02; Winter 172; Fisch 236, 301–02), with Defendants claiming that the District provided training on hate crimes and dealing with anti-Semitism in the classroom during the Superintendent’s Conference Days in September 2009, (see Defs.’ 56.1 Resp. ¶ 389, Carbone Aff. ¶¶ 30(m),(o).)
B. Procedural History On March 28, 2012, Plaintiffs filed their Initial Complaint. (See Dkt. No. 1). Plaintiffs filed their Amended Complaint on January 7, 2013. (See Dkt. No. 25.) In their Amended Complaint, Plaintiffs assert violations of their rights under Title VI of the Civil Rights Act against the District. They also assert violations of their right to equal protection under the U.S. Constitution and violations of New York Civil Rights Law against the District and several district administrators, specifically PBCSD Superintendent Philip G. Steinberg, former Principal of Pine Bush Elementary Steve Fisch, and former Assistant Principal of Crispell Middle School Eric Winter, all in their individual capacities. (See id.) In addition, Plaintiffs name several individuals in their official capacities as school administrators, specifically Steinberg, Hopmayer, Boyle, and Fisch. Defendants filed an Amended Answer on April 5, 2013. (See Dkt. No. 37.) On
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December 6, 2013, Defendants filed their Motion for Partial Summary Judgment (“Defs.’ Mem.”) and supporting papers, (see Dkt. Nos. 50–57), to which Plaintiffs timely responded with a Memorandum of Law in Opposition (“Pls.’ Mem.”) and supporting papers. (See Dkt. Nos. 63, 70–71.) Defendants filed a Reply Memorandum of Law in Support (“Defs.’ Reply”) along with supporting documents on February 21, 2014. (See Dkt. Nos. 81–84.) In addition to the Parties’ filings, on January 15, 2014, the United States Department of Justice requested leave to file a statement of interest in this Action. (See Dkt. No. 61.) The Court granted this request, (see id.), and the Department filed its Statement of Interest of the United States on January 24, 2014. (See Dkt. No. 67.) The Court heard oral argument on July 17, 2014.
II. DISCUSSION A. Standard of Review Summary judgment shall be granted where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir. 2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and . . . resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper Saddle River, N.J. v. Rockland Cnty. Sewer Dist. No. 1, No. 07-CV-109, 2014 WL 1621292, at *12 (S.D.N.Y. Apr. 22, 2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of
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proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion . . . , [a nonmovant] need[s] to create more than a metaphysical possibility that his allegations were correct; he need[s] to come forward with specific facts showing that there is a genuine issue for trial,” Wrobel v. Cnty. of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis and internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), and “cannot rely on the mere allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) (citing, inter alia, Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading . . . .”)).
“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of New York, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same).
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Thus, a court's goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)); see also Schatzki v. Weiser Capital Mgmt., LLC, No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same).
B. Plaintiffs’ Title VI Claims 1. Jewish Identity and Title VI
Title VI prohibits a recipient of federal funds from discriminating on the basis of race, color, or national origin. See 42 U.S. C. § 2000(d).9 The United States Department of Education’s regulations regarding Title VI further state that a recipient of federal funds may not, “on ground of race, color, or national origin . . . [r]estrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or benefit under the program.” 34 C.F.R. § 100.3(b)(1)(iv). Nor may a funding recipient, such as the District in this Action, “[d]eny an individual an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program” on the basis of race, color, or national origin. Id. § 100.3(b)(1)(vi).
While Defendants do not seek dismissal of this Action on standing grounds, they
9 Title VI of the Civil Rights Act of 1964, provides that [n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 U.S.C. § 2000d.
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sheepishly raise the question of whether Plaintiffs may bring a Title VI claim on grounds of deliberate indifference to anti-Semitic harassment, stating that Defendants have found “no prior case holding that claims of discrimination based on the [P]laintiffs’ identification as Jewish come within Title VI’s protection.” (Defs.’ Mem. 25.) Defendants appear to correctly identify an area of legal ambiguity, at least to the extent that they suggest that there is a question as to whether religious bias alone can form the basis of a Title VI claim where it is not “deeply intertwined” with national origin.10 Moreover, some courts have held that “allegations of discrimination because one is Jewish . . . do not by themselves state a claim for national origin discrimination.” Larson v. Portage Twp. Sch. Corp., No. 05-CV-431, 2006 WL 1660752, at *5 (N.D. Ind. June 14, 2006); see also Lapine v. Edward Marshall Boehm, Inc., No. 99-CV-8420, 1990 WL 43572, at *5 (N.D. Ill. Mar. 28, 1990) (noting that “Jews, like Catholics and Protestants, hail from a variety of different countries” and “find[ing] that plaintiff has [not] stated a claim for discrimination based on national origin,” because being “Jewish gives no indication of an individual’s country of origin[,]” “[n]or does it indicate the country of origin of one’s ancestors or suggest the physical or cultural characteristics of a national origin group”); cf. Puckett v. McPhillips Shinbaum, No. 06-CV-1148, 2008 WL 906569, at *13 (M.D. Ala. Mar. 31, 2008) (declining to decide whether “being Jewish” is a “protected classification for purposes of a Title VII national origin claim”). This Court, however, need not address these issues in the instant Action.
10 In a recent Summary Order, the Second Circuit suggested, without citation, that religious bias that is “deeply intertwined” with national origin bias may provide grounds for a Title VI claim, but did not address the issue, because “even if [the court] were to decide it in plaintiffs’ favor, we would conclude that the complaint was properly dismissed for the reasons stated in [the] text.” Kajoshaj v. N.Y.C. Dep’t of Educ., 543 F. App’x 11, 13 n.2 (2d Cir. 2013).
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Regardless of whether religious bias alone can form the basis of a Title VI claim or antiSemitism can provide a basis for national origin discrimination, courts have regularly found that anti-Semitic harassment and discrimination amount to racial discrimination. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18 (1987) (explaining “that the Court of Appeals erred in holding that Jews cannot state a § 1982 claim against other white defendants”); Sherman v. Town of Chester, 752 F.3d 554, 567 (2d Cir. 2014) (holding that “Jews are considered a race for the purposes of §§ 1981 and 1982”); United States v. Nelson, 277 F.3d 164, 177 (2d Cir. 2002) (holding that “Jews count as a ‘race’ under certain civil rights statutes enacted pursuant to Congress’s power under the Thirteenth Amendment”); Bachman v. St. Monica’s Congregation, 902 F.2d 1259, 1261 (7th Cir. 1990) (finding that Jews constitute a race within the meaning of federal civil rights statutes); Lenoble v. Best Temps, Inc., 352 F. Supp. 2d 237, 247 (D. Conn. 2005) (noting that “Jews are a distinct race for § 1981 purposes”); Powell v. Independence Blue Cross, Inc., No. 95-CV-2509, 1997 WL 137198, at *6 (E.D. Pa. Mar. 26, 1997) (finding that “[§] 1981 must be read to encompass discrimination against a plaintiff because of his Jewish ancestry or ethnicity”); Singer v. Denver Sch. Dist. No. 1, 959 F. Supp. 1325, 1331 (D. Colo. 1997) (noting that Jews are “a distinct racial group for the purposes of § 1981”).
Furthermore, the Office for Civil Rights has made clear that “anti-Semitic harassment can trigger responsibilities under Title VI . . . when the harassment is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than solely on its members’ religious practices.” (Dear Colleague Letter from Russlynn Ali, Assistant Secretary for Civil Rights, Office for Civil Rights, U.S. Dep’t of Education (Oct. 26, 2010) (Maazel Decl. Ex 1, at 4).) Such agency interpretations of ambiguities in an agency’s own regulation merit “substantial deference,” as the courts have “no reason to think that the agency’s interpretations do not reflect
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its fair and considered judgment on the matter in question.” Biediger v. Quinnipiac Univ., 691 F.3d 85, 96–97 (2d Cir. 2012) (internal quotation marks omitted). Cf. Kenneth L. Marcus, Jurisprudence of the New Anti-Semitism, 44 Wake Forest L. Rev. 371, 388–89 (2009) (chronicling U.S. Department of Education’s Office for Civil Rights letters dating back to 2004 that conclude “that Title VI covers harassment of students of Jewish heritage” (internal quotation marks omitted)).
Plaintiffs’ Amended Complaint asserts that Plaintiffs faced discrimination on the basis of national origin, specifically their “Jewish ancestry,” rather than on the basis of their religious beliefs or observance. (See Am. Compl. ¶¶ 104, 111, 118.) As summarized above, the harassment Plaintiffs allege did not concern Plaintiffs’ religious beliefs or practices, but rather drew on hackneyed stereotypes, bigoted “jokes,” and painful references to the Holocaust and Naziism. In short, the harassment alleged is rooted in Plaintiffs’ actual or perceived national origin or race rather than just Plaintiffs’ faith or religious practices. The Court finds that, regardless of whether they assert their claims on “national origin” or “race,” Plaintiffs are within their rights to assert a claim under Title VI based on anti-Semitic discrimination.
2. Application to Plaintiffs’ Case As noted, Title VI prohibits recipients of federal funds from discriminating on the basis of race, color, or national origin. 42 U.S.C. § 2000(d). Obviously, this includes prohibition of intentional discrimination. See Alexander v. Sandoval, 532 U.S. 275, 280–81 (2001). Moreover, in certain circumstances, courts view the deliberate indifference of third parties to discrimination as a violation of Title VI by the recipient. See, e.g., Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643–44 (1999) (holding that a board of education could be liable for student-on-student harassment where the board acted with deliberate indifference). The Second
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Circuit has articulated the circumstances under which a school district may be held civilly liable for its deliberate indifference to student-on-student harassment under Title VI. Such “[l]iability only arises if a plaintiff establishes: (1) substantial control, (2) severe and discriminatory harassment, (3) actual knowledge, and (4) deliberate indifference.” Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 665 (2d Cir. 2012).11
“A school district . . . exercises substantial control over the circumstances of the harassment when it occurs ‘during school hours and on school grounds.’” Id. (quoting Davis, 526 U.S. at 646.) “Similarly, a school district’s authority to take remedial action lies in its longstanding disciplinary oversight over its students.” Id. With regard to harassment, the Second Circuit has advised that “not all harassment is actionable.” Id. Instead, to be covered by Title VI, the harassment must be “‘severe, pervasive, and objectively offensive’ and discriminatory in effect.” Id. (quoting Davis, 526 U.S. at 650–51); see also Carabello v. N.Y.C. Dep’t of Educ., 928 F. Supp. 2d 627, 643 (E.D.N.Y. 2013) (noting that “[t]o meet the [severity] requirement, the harassment must have been serious enough to have had a systemic effect of denying the victim equal access to an educational program or activity, and more than episodic; it must have been sufficiently continuous and concerted” (citation and quotation marks omitted)); Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438, 444 (D. Conn. 2006) (same). Discriminatory actions proscribed by Title VI include exclusion of educational benefits or programs. Zeno, 702 F.3d at 665–66. Educational benefits “include an academic environment free from racial
11 Courts generally interpret Title VI and Title IX consistently with one another. See Barnes v. Gorman, 536 U.S. 181, 185 (2002) (noting that “the Court has interpreted Title IX consistently with Title VI”); Zeno v. Pines Plains Cent. Sch. Dist., 702 F.3d 655, 665 n.9 (2d Cir. 2012) (“Historically, the Supreme Court has applied parallel analyses to claims brought under Title IX and Title VI.”). The Court will thus rely on cases that assess claims under either statute in considering the instant Motion.
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hostility.” Id. at 666; see also Hayut v. State Univ. of N.Y., 352 F.3d 733, 750 (2d Cir. 2003) (holding that misconduct that “simply created a disparately hostile educational environment relative to [the student’s] peers . . . could be construed as depriving [that student] of the benefits and educational opportunities available at [the school]”); Oliveras v. Saranac Lake Cent. Sch. Dist., No. 11-CV-1110, 2014 WL 1311811, at *14 (N.D.N.Y. Mar. 31, 2014) (“Educational benefits include an academic environment free from racial hostility.” (internal quotation marks omitted)); T.Z. v. City of New York, 634 F. Supp. 2d 263, 272–73 (E.D.N.Y. 2009) (noting that “even where a Title IX plaintiff’s academic performance does not suffer but the harassment simply creates a disparately hostile educational environment relative to her peers, the issue of whether the harassment deprived the plaintiff of educational opportunities and benefits is one for the trier of fact” (alteration and internal quotation marks omitted)).
Finally, to be liable, a school district must actually know of the harassment; constructive knowledge is insufficient. See Davis, 526 U.S. at 641–43; Zeno, 702 F.3d at 666. Moreover, the district must be deliberately indifferent to the harassment, meaning that its actions must be “clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648; see also, Zeno, 702 F.3d at 666. In evaluating the reasonableness of a school district’s response to alleged harassment, “a court must accord sufficient deference to the decisions of school disciplinarians.” Zeno, 702 F.3d at 666; see also Davis, 526 U.S. at 648 (“[C]ourts should refrain from secondguessing the disciplinary decisions made by school administrators.”).
In considering Defendants’ Motion, the Court must determine whether any genuine issues of material fact exist such that a reasonable jury could find these requirements satisfied. Defendants do not appear to contest that Plaintiffs can satisfy the first two of these requirements, at least for the purposes of the instant Motion. Regardless, the Court addresses all four of the
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requirements and concludes that a jury could reasonably find that Plaintiffs have demonstrated the District’s substantial control over the circumstances of the harassment, that Plaintiffs suffered severe and discriminatory harassment, that the District had actual knowledge of the harassment, and that the District was deliberately indifferent to the harassment.
a. Substantial Control With respect to Defendants’ substantial control, the incidents alleged by Plaintiffs occurred entirely on PBCSD grounds, property (including buses the District hired), or during supervised school trips. See Zeno, 702 F.3d at 668 (noting that the fact that the harassment occurred on school grounds or its contracted buses supported the jury’s finding that the district had substantial control over the circumstances of the harassment); see also Davis, 526 U.S. at 646 (finding that a school has control over harassment that occurs “during school hours and on school grounds”). Furthermore, Plaintiffs’ harassers were fellow students over whom the District had disciplinary oversight. A reasonable jury could therefore conclude that PBCSD possessed the control required to incur liability under Title VI. See Zeno, 702 F.3d at 668 (noting that “[b]ecause school officials are charged with prescribing and controlling conduct in the schools, the District had disciplinary oversight over the harassers” and therefore had “substantial control” over the harassment (alterations, internal quotation marks, and citation omitted)).
b. Severe and Discriminatory Harassment Plaintiffs have also identified sufficient facts to support a jury conclusion that T.E., O.C., and D.C. were subjected to severe and discriminatory harassment. These Plaintiffs’ depositions catalogue numerous incidents for each Plaintiff that exceed the sort of “non-actionable ‘simple acts of teasing and name-calling among school children.’” Id. at 667 (quoting Davis, 526 U.S. at
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652); see also DiStiso v. Cook, 691 F.3d 226, 242–43 (2d Cir. 2012) (finding that allegations that a student’s “classmates called the child racial epithets or disparaged his race . . . by calling him ‘nigger’ [and] ‘blackie,’ and [] by suggesting that the boy’s skin remained dirty even after washing” indisputably “raise[d] a question of severe harassment going beyond simple teasing and name-calling”). Taking Plaintiffs’ testimony as true for the purposes of the instant Motion, the three Plaintiffs here had anti-Semitic slurs repeatedly directed at them, witnessed swastika graffiti, and were subjected to anti-Semitic “jokes.” Both T.E. and D.C. were also called “crispy” or told that they should have been burned in the Holocaust. In addition, D.C. and O.C. both claim to have suffered physical harassment, including being slapped, physically restrained, and having coins thrown at them. Plaintiffs allegedly continued to suffer harassment at PBE, Crispell, and, for D.C. and O.C., throughout the duration of their time at PBHS. Moreover, Plaintiffs suffered from more than one or two isolated incidents of racial harassment. Accordingly, a jury could reasonably conclude that Plaintiffs suffered “severe, pervasive, and objectively offensive” harassment. Zeno, F.3d at 665 (internal quotation marks omitted); cf. HB v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-5881, 2012 WL 4477552, at *15 (S.D.N.Y. Sept. 27, 2012) (rejecting Plaintiffs’ claims as insufficiently severe to support a Title VI violation because “the utterance of one comment by a student cannot be said to be so “severe, pervasive and objectively offensive” that it effectively denied [the plaintiff] educational benefits” (internal quotation marks omitted)).
A jury could further conclude that Plaintiffs were improperly denied educational benefits as a result of this harassment. At minimum, Plaintiffs were “deprived of a supportive, scholastic environment free of racism and harassment.” Zeno, 702 F.3d at 667. In addition, Plaintiffs report being emotionally distressed by the harassment; T.E., for example, sought mental health
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services and was on the verge of a nervous breakdown, (see Mrs. E. 233–34), and D.C. contemplated suicide, (D.C. 82–83). Ultimately, T.E. withdrew from public schooling at Crispell. (Mrs. E. 201). Given these facts, a jury could reasonably find that Plaintiffs suffered severe and discriminatory harassment that denied Plaintiffs educational benefits under Title VI. See Zeno, 702 F.3d at 667 (finding that the plaintiff was deprived of educational benefits where he “was driven to leave” the school after three-and-a-half years where “the decision to withdraw was motivated by a racially hostile educational environment”); Hayut, 352 F.3d at 750 (holding that “to the extent the evidence suggests that [the harasser’s] conduct . . . caused [the plaintiff] to withdraw from [the university] altogether, . . . the above-described harassment could be construed as depriving [the plaintiff] of the benefits and educational opportunities available at [the university]”); Herndon v. Coll. of Mainland, No. 06-CV-286, 2009 WL 367500, at *26 (S.D. Tex. Feb. 13, 2009) (noting that “evidence such as stress-related illness, stomach problems, falling grades, or a student's withdrawal from the school due to fear of harassment can constitute harassment sufficiently severe to deprive the student of an educational benefit”). Accordingly, Plaintiffs have provided enough evidence to satisfy the first two requirements for Title VI liability.
c. Actual Knowledge As noted, to hold a school district liable under Title VI, a plaintiff must also demonstrate that the defendant school district actually knew of the harassment—constructive knowledge is insufficient. See Zeno, 702 F.3d at 666 (“Constructive knowledge is not enough; only actual knowledge is a predicate to liability.” (citing Davis, 526 U.S. at 641–43).) This means that a school official who “at a minimum has authority to address the alleged [harassment] and to institute corrective measures on the [school district’s] behalf” must have actual knowledge of
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student-on-student harassment in order for the district to be liable. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998); see also Manolov v. Borough of Manhattan Cmty. Coll., 952 F. Supp. 2d 522, 532 (S.D.N.Y. 2013) (noting that “when [a Title VI or Title IX] discrimination claim fails to implicate the official policy of a defendant, a damages remedy will not lie unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond” (alteration and internal quotation marks omitted)); Zimmerman v. Poly Prep Country Day Sch., 888 F. Supp. 2d 317, 331–32 (E.D.N.Y. 2012) (same).
Defendants admit that both T.E. and O.C. reported harassment to school administrators. (See Defs.’ Mem. 30, 33.) Such notice is sufficient to provide a basis for a finding of actual knowledge on the part of the District. See Zeno, 702 F.3d at 668 (noting that the reporting of harassment to the school principal and school administrators were some of the many ways in which the District “actually knew” of the harassment against the plaintiff); Romero v. City of New York, 839 F. Supp. 2d 588, 604 (E.D.N.Y. 2012) (holding that informing the assistant principal and principal about alleged misconduct constituted the defendants’ actual knowledge of the misconduct); DT v. Somers Cent. Sch. Dist., 588 F. Supp. 2d 485, 495 (S.D.N.Y. 2008) (holding that the plaintiff’s conversation with his principal and three letters sent to school officials about the harassment that the plaintiff suffered placed the defendants on notice of racial hostility), aff’d, 348 F. App’x 697 (2d Cir. 2009).
With respect to D.C., however, Defendants claim that “there is no evidence that any appropriate person in a position to institute corrective measures on the school district’s behalf had actual knowledge that D.C. was experiencing such harassment.” (Defs.’ Mem. 28
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(alterations and internal quotation marks omitted).) Sufficient facts exist to dispute Defendants’ contention.
As an initial matter, the Court acknowledges that D.C.’s testimony that he reported incidents of harassment to his teachers on several occasions is insufficient to establish actual notice. Specifically, D.C. remembered “actually point[ing] out swastikas [in textbooks] to [his] teachers,” but he could not remember the specific teachers to whom he showed them. (D.C. 20.) He reported a swastika in the bathroom to his eighth grade science teacher, and, when it reappeared later, to his Spanish teacher. (See id. at 11–13.) He also told Ms. King, his tenth grade trigonometry teacher, that another student was “making anti-Semitic remarks” in her class, (id. at 93–94), and testified that Ms. King was present and teaching when another student “called [a student] a fucking Jew at the top of his lungs” and then “looked at [D.C.] and . . . smirked,” (id. at 94–95).
D.C.’s reports to PBCSD faculty, however, were insufficient to provide actual knowledge to the District. As previously discussed, Title VI only recognizes actual notice when information is provided to a school official with authority to institute corrective measures on the district’s behalf. Despite Plaintiffs’ broad assertion that “[i]n this District, teachers have authority to institute corrective measures on the district’s behalf,” because “[t]eachers ha[ve] essentially unlimited discretion whether and how to give discipline,” (Pls.’ Mem. 49–50 (alterations and internal quotation marks omitted)), Defendants claim that teachers’ disciplinary authority is cabined by the Code of Conduct, (Pls.’ 56.1 Resp. ¶¶ 30–31). In any case, D.C. alleges “rampant anti-Semitic discrimination and harassment” at the hands of “multiple” students at both Crispell and PBHS that a teacher would not likely be able to effectively combat by disciplining individual students. (See Am. Compl. ¶¶ 75–78.)
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Moreover, even if PBCSD teachers possessed the control necessary to take corrective action and end the discrimination against D.C., imputing knowledge on the part of the teachers to the District would undermine Title VI’s clear bar on respondeat superior liability. See DT, 588 F. Supp. 2d at 494 (finding that “[a]s Title VI requires actual notice, the principle of respondeat superior will not impute [a teacher’s] knowledge of [the harassment suffered by the plaintiff] to defendants” where a teacher observed but failed to report racial harassment). Thus, even if faculty members were required to report harassment to administrators, it would still be improper to impute the teachers’ knowledge to the District, absent evidence that the teachers followed the policy and, accordingly, made reports. See id. (holding that the fact that a nondefendant teacher witnessed an incident of harassment was insufficient to impute knowledge of the incident to the defendants, absent evidence in the record that the defendants were informed, and despite a district protocol “which would [require the teacher] to contact other administrators and speak to other staff”); accord C.S. v. Couch, 843 F. Supp. 2d 894, 913 (N.D. Ind. 2011) (finding that the defendant did not have actual knowledge of racial harassment, and refusing to “impute the knowledge of [the plaintiff’s] fifth grade teacher or the football coaches” who were aware of the harassment and who may have had the authority to stop the offending behavior, “[b]ecause Title VI requires actual notice,” and despite the teacher’s alleged promise to talk to the principal about the harassment, there was no evidence that the teacher ever reported the harassment to the principal).12 Thus, to the extent that D.C.’s teachers were aware of
12 One court addressed this issue in the context of sexual harassment of a student by a teacher, however, such Title IX cases are not analogous to Title VI peer-harassment cases. See Romero v. City of New York, 839 F. Supp. 2d 588, 605 n.9 (E.D.N.Y. 2012) (noting that, although the Supreme Court has stated that “the knowledge of the wrongdoer himself is not pertinent to the actual knowledge analysis, neither the Supreme Court nor the Second Circuit has addressed whether a teacher . . . who does not have supervisory authority over the offending
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harassment, but did not report it to administrators, the District cannot be found to have had “actual knowledge” of these instances of harassment.
Nevertheless, there is evidence in the record that administrators knew of the anti-Semitic harassment that D.C. suffered. Testimony from Mr. C. provides one instance in which a school administrator was contemporaneously notified that D.C. was the victim of anti-Semitic harassment. When D.C. was in sixth grade, his father called Boyle and reported that his son “had been the butt of many Jewish jokes,” that an older student on D.C.’s bus had called D.C. a “fucking Jew,” and that his son had been subject to Jewish jokes and slurs from “multiple kids over the course of that year.” (Mr. C. 10–11, 13.) D.C. testified that he later attempted to raise the issue with Boyle himself, but that Boyle “dismissed it” and instead reprimanded D.C. for playing video games in the computer lab. (D.C. 29.) The reporting of harassment to Principal Boyle when D.C. was in sixth grade provided Defendants with actual knowledge of D.C.’s harassment at Crispell. Though the District’s response to this knowledge is disputed by Defendants, this dispute is within the bounds of Title VI.
Plaintiffs further submit that Mr. C. notified Boyle, two Assistant Superintendents, a member of the PBCSD School Board, and Steinberg of his son’s harassment in a 2011 email. (Pls.’ Mem. 48.) However, the relevant email, in which Mr. C. conveys that D.C. “spent 9th grade in fear of Seniors on his bus who pushed him around while chanting ‘White Power’ and telling him that he should have died in the Holocaust,” was sent in May 2011, when D.C. was
employee and cannot fire or suspend the employee, is a school official with authority to address the alleged discrimination and to institute corrective measures” (alterations and internal quotation marks omitted)). In the context of teacher-on-student harassment, it seems less likely that one teacher would have any authority over a fellow teacher to remedy the harassment, than a teacher would have to address student-on-student harassment.
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nearing the end of the tenth grade and when the older students involved in this harassment would have graduated from the school. (See Maazel Decl. Ex. 27.) Moreover, there is no evidence that Mr. C. raised concerns about harassment of D.C. at the meeting that resulted from this email. (See Mr. C. 37–52 (describing the content of the meeting with school administrators and noting that “the reason why they were there was because of all of the things that we understood were happening to T.[E.] and O.[C.]”).) Here, a jury could not reasonably conclude that the 2011 email provided the District with actual knowledge of the harassment suffered by D.C. at PBHS prior to the date of the email. As the email did not suggest that the harassment D.C. experienced in ninth grade had persisted, and as Mr. C. did not raise the issue at the resulting meeting, it would not be reasonable to consider the email as providing actual knowledge of harassment of D.C. when he was in ninth grade.
A jury could conclude, however, that Mr. C.’s 2011 email sufficiently provided the District with knowledge that D.C. might be harassed at PBHS from that point forward based on the harassment he had suffered in the past. Moreover, complaints about the harassment of other students, including O.C. and T.E., provide actual knowledge to the District that D.C. himself suffered harassment. See DT, 588 F. at 494 (noting that “actual notice of every single event is not required” but rather, “at minimum” “the institution . . . must have possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff's legal claim is based” (internal quotation marks omitted)); Crandell v. N.Y. Coll. of Osteopathic Med., 87 F. Supp. 2d 304, 320 (S.D.N.Y. 2000) (noting that “actual knowledge of every incident could not possibly be required, as this would burden the plaintiff unfairly in cases of frequent harassment to report many separate incidents to the appropriate authorities and would oblige the court to determine whether each
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incident alleged was reported and therefore is actionable”). Finally, D.C.’s testimony indicating that anti-Semitic graffiti, including swastikas, was so
ubiquitous throughout Crispell and PBHS that “it would be impossible for [teachers and administrators] to miss the swastikas,” (D.C. 11), is sufficient to support a finding that PBCSD administrators were aware of the graffiti and anti-Semitic harassment in general. (See Defs.’ Mem. 24–25.) See Derby Bd. of Educ., 451 F. Supp. 2d at 446 (finding that evidence of substantial media coverage of harassment was sufficient to create a fact dispute about actual knowledge of a school board); Tesoriero v. Syosset Cent. Sch. Dist., 382 F. Supp. 2d 387, 397 (E.D.N.Y. 2005) (noting that “most courts agree that . . . the actual notice standard does not set the bar so high that a school district is not put on notice until it receives a clearly credible report of [misconduct] from the plaintiff-student” (citation and internal quotation marks omitted)). Therefore, a reasonable jury could find that the information provided to Principal Boyle by D.C. and his father when D.C. was in sixth grade, the 2011 email, and pervasive and obvious grafitti provided the District with actual knowledge that D.C. was being harassed.
d. Deliberate Indifference In addition to the other elements of a Title VI claim, as discussed above, Plaintiffs must prove that the District was deliberately indifferent to the student-on-student harassment. In other words, PBCSD’s action—or inaction—must “at a minimum, [have] caused students to [have] undergo[ne] harassment or [made] them liable to or vulnerable to it.” Zeno, 702 F.3d at 666 (internal quotation marks omitted) (citing Davis, 526 U.S. at 645). “[A] finding of deliberate indifference depends on the adequacy of a school district's response to the harassment.” Id.; see also Oliveras, 2014 WL 1311811, at *14 (same); DT, 588 F. Supp. 2d at 495 (same). “A failure to respond, a response that only follows after a lengthy and unjustified delay, and a response that
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amounts to deliberate indifference to discrimination, have all been found inadequate.” Zeno, 702 F.3d at 666 (citations and internal quotation marks omitted); see also T.C. v. Valley Cent. Sch. Dist., 777 F. Supp. 2d 577, 596 (S.D.N.Y. 2011) (noting that a court may find deliberate indifference when the “defendant’s response to known discrimination is clearly unreasonable in light of the known circumstances or when remedial action only follows after a lengthy and unjustified delay” (internal quotation marks omitted); DT, 588 F. Supp. 2d at 495 (noting that “remedial action [that] only follows after a lengthy and unjustifiable delay” can be unreasonable and thereby support a finding of deliberate indifference); Derby Bd. of Educ., 451 F. Supp. 2d at 446–48 (holding that the plaintiff “proffer[ed] sufficient evidence to permit a finding that the [defendant’s] response was unreasonably delayed and inadequate so as to constitute deliberate indifference”). This inquiry is “not a mere reasonableness standard [of the type that would] transform[] every school disciplinary decision into a jury question.” Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 141 (2d Cir. 1999) (internal quotation marks omitted). Indeed, “[i]n an appropriate case, there is no reason why courts, on a motion . . . for summary judgment . . . , could not identify a response as not clearly unreasonable as a matter of law.” Id. (internal quotation marks omitted).
When weighing the adequacy of a response, a court must accord sufficient deference to the decisions of school disciplinarians. See Zeno, 702 F.3d at 666; see also Davis, 526 U.S. at 648 (“[C]ourts should refrain from second-guessing the disciplinary decisions made by school administrators.”). To that end, victims do not have a right to specific remedial measures. See Zeno, 702 F.3d at 666; Doe v. Galster, 768 F.3d 611, 621 (7th Cir. 2014) (finding that, because “Davis does not entitle plaintiffs to any specific remedial measure . . .[t]he school was not required by federal law to give [the plaintiff] a formal safety plan”); Oliveras, 2014 WL
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1311811, at *14 (noting that “victims do not have a right to specific remedial measures” when weighing the adequacy of a school district’s response to peer harassment); T.C., 777 F. Supp. 2d at 596 (“The Supreme Court has rejected the notion that victims of peer harassment have a right under Title VI to make particular remedial demands.”); DT, 588 F. Supp. 2d at 496 (“[C]ourts have been skeptical of arguments premised on the degree to which a school punishes its students” on the basis that “[t]he Supreme Court has rejected the argument that victims of peer harassment have a Title VI right to make particular remedial demands on the school.” (citations and internal quotation marks omitted)).
Here, the District argues that a reasonable jury could not find it to have been deliberately indifferent because its officials appropriately responded to the incidents of harassment of which they were aware and took steps as needed to address anti-Semitism more systematically in the school community. However, the undisputed facts, as well as those that the District contests in its Response to Plaintiffs’ Rule 56.1 statement, do not foreclose a jury from coming to the conclusion that the District was deliberately indifferent. Given the numerous incidents of harassment alleged by D.C., T.E., and O.C., which the District does not dispute, a jury could find that the District was aware of such inadequacies, and that the District nonetheless failed to take reasonable steps to combat anti-Semitic harassment.
“Responses that are not reasonably calculated to end harassment are inadequate.” Zeno, 702 F.3d at 669; see also Doe v. Sch. Bd. of Broward Cnty. Fla., 604 F.3d 1248, 1261 (11th Cir. 2010) (noting that “where a school district has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the behavior”); Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 262 (6th Cir. 2000) (“Where a school district has actual knowledge that its efforts to remediate are ineffective,
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and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.”); Tesoriero, 382 F. Supp. 2d at 399 (same).
The circumstances that the Second Circuit considered in Zeno are informative to the Court’s consideration of the District’s response in the instant case. There, the court found that “five circumstances should have informed the [d]istrict’s continued response to student harassment of [the plaintiff].” Zeno, 702 F.3d at 669. First, the court noted that the district knew that disciplining the students who were harassing the plaintiff failed to deter further harassment from other students. Id. Here, the District had knowledge that meting out discipline to the students who harassed Plaintiffs (to the extent there was such discipline) did not deter others from harassing D.C., O.C., and T.E. In addition to the large number of complaints by Plaintiffs about harassment by different students, Superintendent Steinberg acknowledged that “it was different children that were making [harassing comments to T.E. and O.C.],” (Defs.’ 56.1 Resp. ¶ 237), and, in a meeting with administrators, Plaintiffs’ parents stressed the “systemic” nature of the harassment that their children regularly faced, (see id. ¶¶ 179–80). Second, the Zeno court noted that the harassment that the plaintiff there suffered “grew increasingly severe,” and included two violent incidents, three threats on the plaintiff’s life, and two incidents which resulted in orders of protection against the students involved in the harassment. Id. The instant case does not present the dramatic escalation of harassment from verbal taunts to physical assaults that the plaintiff in Zeno experienced, however, the uncontested facts suggest that harassment of Plaintiffs began at PBE, persisted through their time at Crispell, and, for D.C. and O.C., who remained in District schools, continued throughout their time at PBHS. Third, the discipline given by the administrators in Zeno “had little effect, if any, on the taunting and other hallway harassment, which persisted until [the plaintiff] left [the high school].” Id. Here, too,
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attempts at disciplining students for harassment did not appear to have had an effect on the slurs, “white power chants,” Hitler salutes, and swastika graffiti that Plaintiffs allege to have endured on a regular basis. (See, e.g., Defs.’ 56.1 Resp. ¶¶ 125–30; O.C. 9–13; T.E. 77 (describing an incident in which a student pantomimed shooting O.C. and made a comment about “killing jews” during a video about the Holocaust, was spoken to by the teacher, but continued to make ethnic slurs toward O.C. after the incident). Fourth, the school district in Zeno “knew that the harassment predominately targeted [the plaintiff’s] race and color.” Id. There is no dispute that Plaintiffs here were harassed because they were Jewish. Last, the district in Zeno was offered “both a free shadow, to accompany [the plaintiff] during the school day, and a free racial sensitivity training series” by the Human Rights Commission and N.A.A.C.P. Id. The Defendants here were similarly aware of other options and resources for countering anti-Semitic sentiment in the District—if only because Plaintiffs’ parents told Defendants about them. (See Defs.’ 56.1 Resp. ¶ 234; Mr. C. 42–43 (describing Mr. C.’s request to Steinberg “to invite in organizations like the [Anti-Defamation League] and NAACP” into the schools and require online classes for teachers). In light of these considerations, the Court concludes that a jury could find that the District’s response was unreasonable.
To be clear, the District need not entirely cleanse its schools of harassment to avoid liability under Title VI. See Davis, 526 U.S. at 648 (noting that “purging . . . schools of actionable peer harassment” is not required); Zeno, 702 F.3d at 670 (explaining that “actually eliminating harassment is not a prerequisite to an adequate [Title VI] response” (emphasis in original)); Carabello, 928 F. Supp.2d at 642 (acknowledging that the defendant “was not required to ‘purge’ [the school] of peer harassment, engage in any particular disciplinary action, or expel [the offending student],” and further noting that the “[d]efendant’s disciplinary
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measures over time . . . reflected a school district’s ability to use discretion in disciplining its student”); Preusser ex rel E.P. v. Taconic Hills Cent. Sch. Dist., No. 110-CV-1347, 2013 WL 209470, at *11 (N.D.N.Y. Jan. 17, 2013) (noting that “actually eliminating harassment is not a pre-requisite to an adequate response”). Rather, the District needed only to undertake actions that could “have plausibly changed the culture of bias at [the school] or stopped the harassment directed at [Plaintiffs].” Zeno, 702 F.3d at 670. When, however, a district has knowledge that its current method of addressing the harassment is ineffective, it cannot rest on its past remedial efforts. See id. at 671 (noting that a school district cannot ignore “signals that greater, more directed action was needed”); Vance, 231 F.3d at 261 (holding that “where a school district has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the behavior [and that w]here a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances”).
Here, the District argues that it took measures to combat anti-Semitism in its schools beyond that of the individual disciplining of offending students. PBE Principal Fisch held an assembly to address general bullying issues when T.E. and O.C. were in fifth grade, (see Defs.’ 56.1 Resp. ¶ 122), and later Crispell held a seminar in which a Holocaust survivor spoke to T.E. and O.C.’s seventh-grade class, (see id. ¶ 223). The Parties dispute the extent to which the District engaged in any other programs to combat anti-Semitism, though Defendants argue that the District’s anti-bullying efforts encouraged tolerance generally and “sometimes specifically mentioned anti-Semitism.” (Id. ¶¶ 383–85.) In addition, District administrators met with Plaintiffs’ parents and the students themselves to discuss the harassment and possible solutions,
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including transferring T.E. and O.C. to a middle school other than Crispell. (See id. ¶¶ 240–41.) Some courts have concluded that general anti-bullying programs (among other actions)
prevent a district from being found deliberately indifferent when such programs are used as part of a larger strategy that targets the harassment. See, e.g., Williams v. Port Huron Sch. Dist., 455 Fed. App’x. 612, 620 (6th Cir. 2012) (holding that a principal was not deliberately indifferent where he “made extensive efforts to combat student-on-student racial harassment,” including removing a racial slur from a locker, setting up video surveillance in locations where harassment occurred, participating in a group dedicated to improving relations in the community, ordering students to remove confederate flags from their cars and clothes, expelling a racist student, and conducting “assemblies at which he told the students to treat everyone with respect and dignity”), rev’g No. 06-CV-14556, 2010 WL 1286306 (E.D. Mich. Mar. 30, 2010); S.S. v. E. Kentucky Univ., 532 F.3d 445, 454–55 (6th Cir. 2008) (holding that a school district was not deliberately indifferent where the record demonstrated that the district, in addition to investigating and disciplining the students involved, responded to allegations of racial discrimination in many different ways, including “identifying related topics for discussion at assemblies” and small groups); Doe ex rel. Doe v. Bellefonte Area Sch. Dist., No. 02-CV-1463, 2003 WL 23718302, at * 7, 10 (M.D. Pa. Sept. 29, 2003) (granting summary judgment to a school district that “took . . . preventative measures [other than dealing with specific offenders] in the wake[] of [each reported sexual harassment incident] . . . including conducting “assemblies that addressed the issue of harassment”), aff’d, 106 F. App’x 798 (3d Cir. 2004).
But conducting assemblies, even ones that specifically address the discrimination complained of, does not immunize a school district from liability, as the school district’s response must be assessed “in light of the known circumstances.” Davis, 526 U.S. at 648. In
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Zeno, for example, despite evidence demonstrating that the school district disciplined the plaintiff’s harassers immediately and held an assembly as an attempt to combat school-wide racial harassment, the court nonetheless found the district’s response to have been unreasonable. See 702 F.3d at 655. In particular, the court affirmed judgment for the plaintiff on grounds that the jury had reasonably found the district’s actions could not have plausibly changed the culture of bias or stopped the harassment and could find that the district ignored many signals that greater, more directed action was needed. Id. at 669–70.
And so it is here. A reasonable jury could find that, while the District may have taken some steps to combat the culture of anti-Semitism in its schools, the handful of assemblies—which addressed only students in T.E. and O.C.’s grade—could not have plausibly changed the anti-Semitic sentiments of the student harassers, many of whom were not classmates of T.E. and O.C. These assemblies also did nothing to target anti-Semitism among the students who harassed D.C. See id. at 670 (finding that, despite the defendant school district’s training program that “was for one day only and focused on bullying and sexual harassment, rather than racial discrimination,” morning announcements with “messages meant to inculcate civic and personal values, rather than address racism and discrimination,” an attendance-optional biasspecific training that was not held until “nearly twenty-one months after peer harassment of [the plaintiff] began,” and the formation of an extracurricular student group aiming at addressing prejudice, a reasonable jury could have found the district’s response to have been unreasonable). A reasonable jury could find that the number of incidents of harassment against Plaintiffs and the fact that this harassment did not cease following the District’s assemblies provided ample indication that additional efforts to change the anti-Semitic culture were required. Moreover, the administrators in question appear to have done nothing to attempt to address anti-Semitism in the
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District across schools, despite the fact that the incidents that occurred on the school bus involved students who were older than Plaintiffs and who did not attend the same school. (See Peters 273–74 (admitting that the April 19, 2010 bus incident involved T.E., who was in middle school, and high school students); T.E. 150 (testifying that “in addition to middle school kids, there were high school kids on the bus” that T.E. rode in seventh grade).) Furthermore, taking Plaintiffs’ evidence as true, a jury could find that the District also failed to raise awareness among the administration and faculty about the rampant harassment, and that the District failed to implement programs to assist in determining the sources and potential solutions to the culture of anti-Semitism among the District’s students. A jury also could reasonably conclude that there were no broad measures put in place to address anti-Semitic graffiti, which appears to have been handled on a case-by-case basis, despite the fact that graffiti often reappeared shortly after it had been removed. (See, e.g., Defs. 56.1 Resp. ¶¶ 174–75, 306–16.); see also Zeno, 702 F.3d at 670 (finding that it was reasonable for the jury to have found that the defendant district’s selection of some remedial actions “in lieu of the free shadow or racial sensitivity training offered by the Dutchess County HRC and N.A.A.C.P.” was an unreasonable response to the plaintiff’s harassment); DiStiso, 691 F.3d at 245 (holding that a reasonable jury could have found the fact that the school principal spoke to the student’s teacher, but did not conduct a full investigation of the reported incidents, to have been an unreasonable response to the reported harassment).
Furthermore, a jury could find that the District’s response in instituting programs to target anti-Semitism was unreasonably delayed, as it came several years after D.C. reported harassment in sixth grade and after Mrs. E. reported the swastika graffiti in fifth grade. A jury could reasonably discount the District’s prior anti-bullying program, which the District claims included broad lessons of tolerance and specific mentions of anti-Semitism, as an obviously
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inadequate remedy for an ongoing problem. See Zeno, 702 F.3d at 670 (finding the district’s programs, which “did not focus on racial bias or prejudice” and “made attendance optional” provided a reasonable basis for a jury to deem the district’s response inadequate).
The Court acknowledges that the school administrators here were faced with the difficult task of disciplining students for harassment of Plaintiffs without violating the rights of the offending students. See, e.g., Lopez v. Bay Shore Union Free Sch. Dist., 668 F. Supp. 2d 406, 419 (E.D.N.Y. 2009) (noting that “New York State statutory law provides certain procedural safeguards to students facing suspensions of more than five days, including the right to reasonable notice, the right to call and examine witnesses, and the right to legal representation,” as well as a right to due process under the Fourteenth Amendment to the Constitution (citing N.Y. Educ. Law § 3214(3)(c)(1)); Bd. of Educ. of City Sch. Dist. of City of New York v. Mills, 741 N.Y.S.2d 589, 590 (N.Y. App. Div. 2002) (noting that “school suspensions and expulsions implicate liberty and property interests of the student and, therefore, require the protections afforded by constitutional due process of law”); Manico v. S. Colonie Cent. Sch. Dist., 584 N.Y.S.2d 519, 521 (Sup. Ct. 1992) (noting that “Education Law, section 3214, which governs serious academic suspensions, mandates a full hearing where the suspension is for greater than five (5) days”); N.Y. Comp. Codes R. & Regs. tit. 8, § 100.2(l)(2)(p) (permitting a school’s code of conduct to set “a minimum suspension period, for any student who repeatedly is substantially disruptive of the educational process or substantially interferes with the teacher’s authority over the classroom, provided that the suspending authority may reduce such period on a case-by-case basis to be consistent with any other State and Federal Law”). Meting out discipline in response to peer harassment while respecting the rights of the offending students presents a challenge that all New York school administrators face—and which is reflected in the courts’ reluctance to
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hold attempts to combat harassment deficient merely because the victimized student or the student’s parents are dissatisfied with the administrator’s disciplinary decision. See Zeno, 702 F.3d at 666 (noting that “victims do not have a right to specific remedial measures” (citing Davis, 526 U.S. at 648)). While the record is clear that the District made some attempts to address the harassment suffered by D.C., T.E., and O.C., both in responding to individual incidents and with additional remedial measures, the District’s Title VI liability turns on whether its response was “clearly unreasonable in light of the known circumstances.” Id. (internal quotation marks omitted).
The Parties dispute the specifics of a number of incidents, including whether the District was aware of certain incidents of harassment and if—and how—the District responded to the incidents of which it was aware. These disputes render the Court unable to conclusively determine that no reasonable jury would find the District’s response to have been deliberately indifferent, particularly in light of the District’s acknowledgment that the harassment Plaintiffs faced was more than a collection of individual instances of bigotry. Rather, there is ample evidence that the District officials themselves believed that Plaintiffs faced a culture of antiSemitism in the District and maybe even in the community. (See Mrs. E. 117–19 (testifying that Winter told Mrs. E that “anti-Semitism is prevalent in the community . . . and that it’s rather hard to stop something that’s inbred in the community”).) Assuming the disputed facts in the light most favorable to Plaintiffs, a reasonable jury could find not only that the District failed to adequately respond to specific incidents of reported harassment, but also that it failed to take steps as necessary to combat the atmosphere of anti-Semitism which permeated the District’s schools. A jury could further find that the District failed to monitor the effectiveness of the measures it did take or implement measures that would enable the District to track bias-related
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harassment as distinct from non-bias-related bullying, thereby failing to take the ongoing, iterative steps needed to respond to a culture of bias, as required by Title VI. For these reasons, a jury could reasonably conclude that Defendants were deliberately indifferent in their response to the harassment suffered by D.C., O.C., and T.E.
C. Plaintiffs’ Equal Protection Claims 1. Merits
In addition to Plaintiffs’ Title VI claim against the District, Plaintiffs T.E. and O.C. assert violations of their right to equal protection against several Defendants. As with Title VI, a Plaintiff can prevail on an equal protection claim against school officials based on deliberate indifference to invidious student-on-student harassment. See Gant, 195 F.3d at 140. Specifically, T.E. asserts an equal protection claim against Steinberg, Fisch, and Winter, and O.C. asserts a claim against Steinberg and Winter.13 To succeed on a § 1983 equal protection claim asserting student-on-student harassment, plaintiff must prove: “(1) that the child in question was in fact harassed by other students based on [membership in a protected group], (2) that such race-based harassment was actually known to the defendant school official, and (3) that the defendant’s response to such harassment was so clearly unreasonable in light of the known circumstances as to give rise to a reasonable inference that the defendant himself intended for the harassment to occur.” DiStiso, 691 F.3d at 241 (internal citations and quotation marks omitted); Oliveras, 2014 WL 1311811, at *19 (same). These “elements work together to ensure that the ultimate inquiry in a deliberate indifference case is one of racially discriminatory purpose on the part of the defendant himself.” DiStiso, 691 F.3d at 241 (original alterations and internal
13 D.C.’s § 1983 claims against individual defendants were previously dismissed, per Magistrate Judge Davison’s December 6, 2012 Order. (See Dkt. No. 19, at 20–22.)
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quotation marks omitted); Oliveras, 2014 WL 1311811, at *19 (same).
The Court finds that T.E. and. O.C. have satisfied the first of these requirements, as
discussed above in the Title VI context. See supra § II(B)(2)(b).14 Plaintiffs have also
sufficiently demonstrated that T.E., O.C., and their respective parents reported a number of
incidents of anti-Semitic harassment to Defendants Steinberg, Fisch, and Winter, providing
sufficient grounds for a jury to find the actual notice requirement satisfied with respect to these
Defendants. See supra § II(B)(2)(c). See also DiStiso, 691 F.3d at 241 (noting that “race-based
harassment [must be] ‘actually known’ to the defendant school official” in order to trigger
§ 1983 liability).
The Court cannot foreclose the possibility that a reasonable jury might infer the requisite
discriminatory intent required to hold individual Defendants Fisch, Steinberg, and Winter liable,
based on their responses to T.E. and O.C.’s complaints. While the law does not require
administrators’ responses to peer-on-peer harassment to be perfect, the facts, many of which are
disputed, suggest that these Defendants’ responses may have been inadequate. Thus, a jury
ought to consider whether “the measures taken [were] so inadequate that a degree of
discriminatory intent may be inferred—allowing the trier of fact to conclude that Defendants
14 In Gant ex rel. Gant v. Wallingford Board of Education, the Second Circuit noted that the Supreme Court articulated a severity requirement in Title IX for peer-harassment claims in Davis, finding that school officials could not be liable under Title IX for failing to respond to harassment consisting of “simple acts of teasing and name-calling among school children,” even when those acts were gender-based. 195 F.3d 134, 140 n.5 (2d Cir. 1999) (quoting Davis, 526 U.S. at 652). The Second Circuit “specifically declined to decide whether [this] severity requirement . . . also applied to deliberate indifference claims under the Constitution’s Equal Protection Clause.” DiStiso, 691 F.3d at 242. Thus, it is possible that “the degree of racial harassment necessary to support a deliberate indifference claim under the Equal Protection Clause is less” than that required under Title IX and Title VI. Id. This is of no moment, however, as T.E.’s and O.C.’s claims meet the more exacting requirements of Title VI, as the Court has already explained.
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intended for the discrimination to occur,” and thus whether these Defendants are liable under § 1983. Yap v. Oceanside Union Free Sch. Dist, 303 F. Supp. 2d 284, 295 (E.D.N.Y. 2004); see also Gant, 195 F.3d at 140 (finding there was sufficient evidence that school officials acted unreasonably by not conducting a full investigation into a racial harassment incident).
With respect to Principal Fisch, his failure to ensure the removal of swastika graffiti from the PBE playground slide is certainly regrettable, but his response to reports about the graffiti by Mrs. E. is more problematic. The Parties dispute the number of times that Mrs. E. informed Fisch that there was still a swastika on the playground slide before he investigated himself, (see July 17, 2014 Tr. 11–17), but Defendants do not contest that, when Fisch received an email documenting that the grafitti was still present in 2010, Fisch emailed the Assistant Superintendant and suggested that “[they] go out and look at [the swastika grafitti] on cannabis culture day[, April 20, 2010].” (Defs.’ 56.1 Resp. ¶ 90; Fisch 173–76.) It is also uncontested that Fisch conducted no investigation into the origin of the grafitti and, as a result, disciplined no one. (See Defs.’ 56.1 Resp. ¶ 95; Fisch 163.) In addition, Fisch, along with other administrators who actually presided over the school in which the offending student was enrolled, was notified about the bus incident involving T.E. and an older student via email, however, he took no steps to ensure that the offending student was disciplined. From these incidents, a reasonable jury could find Fisch’s response to have been inadequate and that this demonstrated Fisch’s deliberate indifference to the issue. See, e.g., DiStiso, 691 F.3d at 245 (affirming that defendant’s failure to do anything, let alone conduct a full investigation of reported incidents in which children repeatedly called a student “racial epithets, including a reviled racial epithet,” could be found unreasonable); Doe ex rel. Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226, 237 (holding that “a jury could reasonably conclude . . . that the [d]efendant’s
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conduct . . . amounted to deliberate indifference” where the plaintiff testified that the defendant
“did nothing in response to [plaintiff’s and her parents’] complaints about [plaintiff’s] treatment
by her peers . . . [and where] the principal answered their complaints by saying he ‘couldn’t do
anything about it’”).15
With respect to Assistant Principal Winter, both T.E. and O.C. identify incidents where
Winter either failed to respond to reported harassment or where Plaintiffs dispute facts about his
response. They claim that Winter failed to discipline the student on T.E.’s bus who made the
threatening remarks to her. (See Defs.’ 56.1 Resp. ¶¶ 218–21). Plaintiffs dispute whether and to
what extent Winter responded to the incident in which another student called T.E. “crispy” and
said that she should have been burned in the Holocaust, (see id. ¶¶ 168–69), and the instances in
15 Defendants have repeatedly noted that Principal Fisch and Superintendent Steinberg are themselves Jewish. (See, e.g., Defs.’ Mem. 35–36; Defs.’ Reply 26). “Some courts have inferred that it is less likely that a member of a protected group will discriminate against a member of the same group,” at least in the context of employment discrimination. Meder v. City of New York, No. 06-CV-504, 2007 WL 2937362, at *9 (E.D.N.Y. Oct. 9, 2007); see also Hargrove v. N.Y.C. Sch. Const. Auth., No. 11-CV-6344, 2014 WL 3756303, at *5 (E.D.N.Y. May 7, 2014) (noting that “[a] well-acknowledged inference against discrimination exists where the person who participated in the allegedly adverse decision is also a member of the same protected class (internal quotation marks omitted)), adopted by, 2014 WL 3756342 (E.D.N.Y. July 30, 2014); White v. Pacifica Found., 973 F. Supp. 2d 363, 380 (S.D.N.Y. 2013) (“Although [t]he Supreme Court has rejected any conclusive presumption that an employer or, presumably, his agents, will not discriminate against members of their own race or gender[,] . . . the fact that both [plaintiff] and [decision-maker] are African-American undermines any possible inference of discriminatory animus.”) (alterations, citation, and internal quotation marks omitted). However, Defendants did not cite—nor has the Court identified in its research—a case drawing such an inference in the case of an administrator’s deliberate indifference to student-on-student harassment. The Court is not persuaded that the mere fact that several PBCSD officials are Jewish would preclude a reasonable jury from concluding that these individuals were deliberately indifferent to the harassment alleged by Plaintiffs. See Feingold v. New York, 366 F.3d 138, 155 (2d Cir. 2004) (noting that the Supreme Court has rejected the conclusive presumption that an employer or his agents would not discriminate against members of their own race or gender and holding that “[i]t is no more reasonable to presume that individuals will not discriminate against practitioners of their own religious faith”).
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which T.E.’s and O.C.’s desks were defaced with swastikas, (see id. ¶¶ 174–75). They further allege that Winter told them to stop coming to him as frequently with their harassment and graffiti complaints. (See id. ¶¶ 159–60.) They do not dispute that Winter crossed out the swastika that was drawn near O.C.’s picture in a yearbook, but do dispute whether the student responsible was disciplined. (See id. ¶ 253.) Furthermore, in phone calls with Mr. C., Winter stated his intent to handle harassment issues on an individual basis rather than targeting the systemic anti-Semitism at Crispell. (See id. ¶¶ 179–81.) The undisputed facts in this case suggest that Winter did respond to most of these incidents, but a reasonable jury could determine that the alleged failure to investigate racially-biased harassment was unreasonable. See Distiso, 691 F.3d at 245 (denying the individual defendant’s summary judgment motion because he allegedly “did nothing” in response to purported actual knowledge that children “were repeatedly calling a student racial epithets [that] . . . could be found unreasonable”); G.D.S. ex rel. Slade v. Northport-E. Northport Union Free Sch. Dist., 915 F. Supp. 2d 268, 279 (E.D.N.Y. 2012) (noting that, for motion to dismiss purposes, “[g]iven the severe and shockingly offensive nature of the anti-Semitic slurs allegedly being made to the Plaintiff by other students, it appears to this Court that the supposed lack of action by the Defendants to either educate students about the harms of such religious discrimination or investigate and discipline the harassers was an inadequate response and thus, clearly unreasonable”).
With respect to Superintendent Steinberg, Plaintiffs claim that Steinberg also failed to respond to the incident in which T.E. was threatened on the bus, (see Defs.’ 56.1 Resp. ¶¶ 218–21), and the incident in which another student called T.E. “crispy,” (see id. ¶¶ 168–69). His response to Mrs. E.’s complaint about rampant anti-Semitic graffiti is disputed, but Plaintiffs claim that Steinberg told Mrs. E. that when his children had a similar problem, they moved. (See
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id. ¶¶ 201–02.) When T.E., O.C., and their parents approached him about a similar solution, specifically transferring the girls to another middle school with accompanying financial support, Steinberg is alleged to have denied the request. (See id. ¶¶ 235–43.) While this factor may not be sufficient to prove that Steinberg possessed the requisite intent, it is informative to the analysis nonetheless. See Yap, 303 F. Supp. 2d at 295 (explaining that the court considered the district’s refusal to allow the student in question to transfer or skip a grade, “in contravention of a[n] indisputably well-established custom to the contrary,” but noting that the plaintiffs also failed to provide any proffer that either remedy would alleviate the reported problems). Steinberg’s failure to raise the issue of anti-Semitic harassment in any of his many meetings with the PBCSD School Board, (see Steinberg 53), which may have led to a District-wide strategy for combating anti-Semitic harassment, might further lead a jury to conclude that he acted unreasonably to the point of being deliberately indifferent to Plaintiffs’ harassment.
Plaintiffs here have offered more “than a proffer indicating the ultimate inadequacy of preventative and curative measures” undertaken by Fisch, Winter, and Steinberg. Yap, 303 F. Supp. 2d at 294–95. Indeed, they have adduced facts that, if accepted by the jury, could support a jury conclusion that Fisch, Winter, and Steinberg were deliberately indifferent.
2. Qualified Immunity As Plaintiffs’ claims against the individual defendants do not clearly merit Summary Judgment in Defendants’ favor, the Court must consider whether Fisch, Winter, and Steinberg are shielded from liability by the qualified immunity doctrine. Qualified immunity shields a “government official[] from liability for civil damages insofar as [his or her] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Messerschmidt v. Millender, 132 S.Ct. 1235, 1244 (2012) (internal quotation
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marks omitted). When successfully asserted by a defendant, “[q]ualified immunity is an immunity from suit rather than a mere defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (internal quotation marks omitted). To determine whether qualified immunity is appropriate, courts first look to whether the facts, “show the officer’s conduct violated a constitutional right[.]” Id. at 232 (internal quotation marks omitted). Here, the facts adduced by Plaintiffs and in dispute suggest that Plaintiffs’ constitutional rights may have been violated. Thus, the Court must examine “whether the right at issue was clearly established at the time of [the] defendant’s alleged misconduct.” Pearson, 555 U.S. at 232 (internal quotation marks omitted).
For fifteen years—well before Plaintiffs enrolled in PBCSD—the Second Circuit has clearly prohibited the “deliberate indifference of school boards, administrators, and teachers to invidious harassment in the school environment, of a student by other children” on the basis of the student’s race. DiStiso, 691 F.3d at 240–41 (internal quotation marks omitted) (citing Gant, 195 F.3d at 140). Defendants correctly note the absence of a case in the Second Circuit holding an administrator individually liable under § 1983 for anti-Semitic student-on-student harassment, but this is not dispositive. Gant provided administrators with notice of their liability with respect to racial discrimination generally, and courts both within and outside of the Second Circuit have held that anti-Semitic harassment can amount to actionable racial discrimination. See supra § II(B)(1). Furthermore, there are disputed issues of fact as to whether Fisch, Winter, and Steinberg’s responses to the harassment Plaintiffs suffered was reasonable. Accordingly, these Defendants are not entitled to qualified immunity. See DiStiso, 691 F.3d at 245 (noting that the
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factual disputes regarding the reasonableness of the defendants’ response rendered the same defendants “not entitled to judgment on the ground of qualified immunity”).
3. Monell Liability Defendants also seek summary judgment on the issue of whether Plaintiffs’ equal protection claim against the District fails on Monell grounds. It is well-settled that a municipality may not be held liable under § 1983 “by application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986); see also Vassallo v. Lando, 591 F. Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting that “a municipal entity may only be held liable where the entity itself commits a wrong”). Instead, there must be a “direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see also Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (“[A] municipality can be held liable under Section 1983 if the deprivation of Plaintiff’s rights under federal law is caused by a governmental custom, policy, or usage of the municipality.” ). In other words, "to establish municipal liability under § 1983, a plaintiff must prove that action pursuant to official municipal policy caused the alleged constitutional injury." Cash v. Cnty. of Eerie, 654 F.3d 324, 333 (2d Cir. 2011) (internal quotation marks omitted). “A municipal policy may be pronounced or tacit and reflected in either action or inaction.” Id. at 334.
a. Final Policymaking Authority Plaintiffs first contend that the District is liable because “its final policymakers, Steinberg and the principals, are liable.” (Pls.’ Mem. 58). “When an official has final authority
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over significant matters involving the exercise of discretion, the choices he makes represent government policy.” Nagle v. Marron, 663 F.3d 100, 116 (2d Cir. 2011) (internal quotation marks omitted). Accordingly, “‘municipal liability [under § 1983] may be imposed for a single decision by municipal policymakers.’” Id. (quoting Pembaur, 475 U.S. at 480).
Where, as here, Plaintiffs “seek[] to hold a municipality liable for a single decision by a municipal policymaker, [plaintiffs] must show that the official had final policymaking power.” Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (citation and internal quotation marks omitted). “[T]he critical inquiry is not whether an official generally has final policymaking authority; rather, the court must specifically determine whether the government official is a final policymaker with respect to the particular conduct challenged in the lawsuit.” Id.; see also Eldridge v. Rochester City Sch. Dist., 968 F. Supp. 2d 546, 562 (W.D.N.Y. 2013) (“An official may be a final policymaker as to some issues but not as to others.”). “[T]he question of whether a given official is the . . . final policymaking official in a given area is a matter of law to be decided by the court” “before the case is submitted to the jury.” Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (emphasis in original) (internal quotation marks omitted); see also City of Waterbury, 542 F.3d at 37 (“Whether an official has final policymaking authority is a legal question, determined on the basis of state law.”). Further, “[w]here a plaintiff relies not on a formally declared or ratified policy, but rather on the theory that the conduct of a given official represents official policy, it is incumbent on the plaintiff to establish that element as a matter of law.” Jeffes, 208 F.3d 49 at 57.
Plaintiffs argue that Steinberg was a final policymaker within the District, with the authority to “ensure[] students [were] free from harassment and bullying,” and that the principals, including Fisch and Boyle, were final policymakers because the Board delegated
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disciplinary matters to their discretion. (Pls.’ Mem. 58). Under New York law, however, the
Superintendent does not have the authority to “promulgate or otherwise create rules, regulations,
or policies of his own.” Port Washington Teachers’ Ass’n v. Bd. of Educ. of Port Washington
Union Free Sch. District, 478 F.3d 494, 501 (2d Cir. 2007) (quoting N.Y. Educ. Law § 1711)
(emphasis in original). Instead, he has the “power to enforce all provisions of law and all rules
and regulations relating to the management of the schools and other educational, social and
recreational activities under the direction of the board of education.” Id. (first emphasis in
original, second emphasis added) (internal quotation marks omitted). There is nothing, in turn,
to indicate that principals have rule-making or policymaking authority with respect to discipline
under New York law. Rather, New York law provides that the Board of Education “shall have
power, and it shall be its duty . . . [t]o establish such rules and regulations concerning the order
and discipline of the schools . . . as [it] may deem necessary to secure the best educational results.” N.Y. Educ. Law § 1709;16 see also Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp.
2d 135, 145 (N.D.N.Y. 2011) (citing N.Y. Educ. Law § 1709 for school board’s responsibility to,
among other things, “provide adequate training to its employees with respect to discrimination, bullying, or harassment based on sexual orientation or sex”).17 Moreover, although the Board
16 This provision is applicable to central school districts. See N.Y. Educ. Law § 1804(1) ("Each such central school district shall be managed by a board of education consisting of five, seven or nine members, which board shall have the same powers and duties as boards of education in union free school districts as prescribed by this chapter.")
17 Under New York law, a superintendent may be a final policymaker for some purposes. Specifically, the Second Circuit has held that under New York law, “because no potential employee can obtain full school board approval without the superintendent’s recommendation, [the superintendent] may . . . be deemed the final decisionmaker with respect to personnel appointments, because his recommendations are essentially those of the governmental body.” Nagle v. Marron, 663 F.3d 100, 117 (2d Cir. 2011) (internal quotation marks omitted). To reach its conclusion, the court cited New York Education law, which provides that “boards of
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has the power to delegate its authority, Port Washington Teachers’ Ass’n, 478 F.3d at 501 (citing
N.Y. Educ. Law § 1709(33) to support that the board of education had authority to delegate
under New York law), Plaintiffs do not point to any “formally declared or ratified policy” that
supports the Board’s delegation of its rule-making authority to prevent student-on-student
harassment. Jeffes, 208 F.3d 49 at 57.
These principles notwithstanding, courts in the Second Circuit are split as to whether a
principal may qualify as a final policymaker for purposes of Monell liability. See Eldridge, 968
F. Supp. 2d at 562 n.7 (“Some cases may be read to suggest that a split of authority exists within
this Circuit concerning the issue of whether a principal constitutes a final policymaker for the
purposes of alleging municipal liability against a school district.”); Dressler v. N.Y.C. Dep’t of
Educ., No. 10-CV-3769, 2012 WL 1038600, at *18 (S.D.N.Y. Mar. 29, 2012) (noting that
“district court decisions in this Circuit have disagreed on whether a principal is a final
education or trustees of common school districts appoint teachers ‘upon the recommendation of the superintendent of schools, for a probationary period of three years,’ . . . . [the] probationary period ‘may be discontinued at any time on the recommendation of the superintendent of schools, by a majority vote of the board of education or the trustees of a common school district,’ . . . . [and] [a]t the end of the probationary term, ‘the superintendent of schools shall make a written report to the board of education’ recommending the grant or denial of tenure.” Id. at 116 (quoting N.Y. Educ. Law § 3012). “[T]he critical inquiry[,]” however, “is not whether a [superintendent] generally has final policymaking authority[,] [but] rather . . . whether the [superintendent] is a final policymaker with respect to the particular conduct challenged in the lawsuit.” City of Waterbury, 542 F.3d at 37. Here, Plaintiffs challenge the Superintendent’s failure to adequately address and discipline students for harassment and bullying. Unlike the scheme for personnel appointments, the superintendent of a central school district does not have a statutory obligation to make recommendations to the school board with respect to discipline. Rather, the superintendent is bound to “enforce all provisions of law and rules and regulations relating to the management of the schools . . . under the direction of the board of education.” N.Y. Educ. Law § 1711(2)(b). Moreover, although the Board has the authority to “prescribe” the “powers and duties” of the Superintendent, see id. § 1711(3), which makes it possible that a superintendent could have policymaking authority over discipline, here Plaintiffs point to nothing in the record that demonstrates the Superintendent had the power or the duty to make recommendations as to discipline.
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policymaker”). A review of these cases suggest that, under certain circumstances, “a public school principal may be a final policymaker where the ‘harm that befell the plaintiff was under the principal’s control.’” Eldridge, 968 F. Supp. 2d at 562 (quoting Zambrano-Lamhaouhi v. N.Y.C. Bd. of Educ., 866 F. Supp. 2d 147, 175 (E.D.N.Y. 2011)); Marino v. Chester Union Free Sch. Dist., 859 F. Supp. 2d 566, 569 (S.D.N.Y. 2012) (“However, while broad rulemaking authority is vested in the school board by law, policymaking authority may not be so strictly limited. As a practical matter, principals are the highest ranking officials in the school and thus have policymaking authority in the day-to-day operations of the school.”); T.Z. v. City of New York, 635 F. Supp. 2d 152, 179 n.27 (E.D.N.Y. 2009), rev’d in part on other grounds, 634 F. Supp. 2d 263 (E.D.N.Y. 2009) (“A school principal has final policymaking authority in the management of the school and her conduct represents official district policy within the purview of the school.”); Lovell v. Comsewogue Sch. Dist., 214 F. Supp. 2d 319, 324 (E.D.N.Y. 2002) (holding that because the plaintiff contended that defendant principal “was responsible for the investigation into the students’ false sexual harassment complaint and he failed to take action in response to her complaints of sexual harassment” the plaintiff “c[ould] proceed under the theory that [the principal’s] conduct . . . represents official policy” of the school district); Rabideau v. Beekmantown Cent. Sch. Dist., 89 F. Supp. 2d 263, 268 (N.D.N.Y. 2000) (explaining that the New York “legislature did not intend to impose upon the board of education a duty to make and assume direct responsibility of enforcing rules reaching down into each classroom in the school system,” that the principal “was the highest ranking person in the school . . . directly responsible for discipline,” and, therefore, the principal’s “knowledge of her subordinate’s behavior and acquiescence, if not direct participation, in the conduct amounts to a custom or policy attributable to the [d]istrict”).
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Conversely, “[w]here the final authority for a particular matter is not within the principal’s control or is subject to review by another official or entity, the principal is not the final policymaker with respect to that matter.” Eldridge, 968 F. Supp. 2d at 562; see also T.P. ex rel. Patterson v. Elmsford Union Free Sch. Dist., No. 11-CV-5133, 2012 WL 5992748, at *5 (S.D.N.Y. Nov. 27, 2012) (holding that “neither a principal nor vice principal is a final policymaker with respect to decisions to suspend students for more than five days” because “[o]nly a superintendent or designee may suspend a student for more than five days, and that decision is subject to reversal by the board of education”); Dressler, 2012 WL 1038600, at *18 (holding “[b]ecause a principal is not a final policymaker when making an appealable schoollevel decision subject to the chancellor’s regulations, [the p]laintiff has failed to adduce any evidence of a policy that would make [the department of education] liable under Monell”); Meadows v. Lesh, No. 10-CV-223, 2011 WL 4744914, at *4 (W.D.N.Y. Oct. 6, 2011) (holding that under New York State law charter school principal does not have final policymaking authority); Shapiro v. N.Y.C. Dep’t of Educ., 561 F. Supp. 2d 413, 420-21 (S.D.N.Y. 2008) (dismissing ADA claims against defendant school district based on the principal’s conduct because “under New York law, New York City school principals do not have final policy making authority over employment decision[s] concerning teachers in their schools”). Therefore, “whether a principal is a final policymaker will depend upon state law and on the particular facts of the case.” Eldridge, 968 F. Supp. 2d at 562. Similar principles apply to whether a superintendent may be a policymaker for Monell purposes. See Tekula v. BayportBlue Point Sch. Dist., 295 F. Supp. 2d 224, 234 (E.D.N.Y. 2003) (denying the defendant’s motion to dismiss Section 1983 claim against the school district because it was plausible that “the superintendent has final policy making activity attributable to the [s]chool [d]istrict”);
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McDonald v. Bd. of Educ. of City of New York, No. 01-CV-1991, 2003 WL 21782685, at *4 (S.D.N.Y. July 31, 2003) (holding that the superintendent’s power to discharge employees “is circumscribed by the [c]hancellor and the [b]oard’s authority to overrule the superintendent,” and, accordingly, “the superintendent cannot be said to be the final policymaker”).
To support their claim that Steinberg and the principals are final policymakers with respect to how and when to impose discipline or address bullying and harassment in their schools, Plaintiffs rely on Steinberg’s testimony that he was the “person that’s in charge of most of the daily operations of the district.” (Steinberg 27; see Pls.’ Mem. 58). Further, Fisch testified that he had authority to decide what discipline was appropriate for certain misconduct. (See Fisch 256–57). Some courts in the Second Circuit have held that similar evidence was enough to suggest that principals have final policymaking authority for Monell purposes. See Marino, 859 F. Supp. 2d at 570 (denying the defendant school district’s motion for summary judgment because principal could be deemed a policymaker under Monell based on deposition testimony that “everything inside that school[,] okay, is under control of the school and the leaders in there” (internal quotation marks omitted)); Solomon v. Southampton U.F.S.D., No. 08CV-4822, 2010 WL 3780696, at *5 (E.D.N.Y. June 24, 2010) (testimony that principal was “responsible for hiring and staffing the intermediate school and for supervision of the staff at the school” was sufficient for a claim to survive a motion to dismiss a Title VII action on Monell grounds (internal quotation marks omitted)).
This Court concludes, however, that here Plaintiffs have failed to establish, “as a matter of law,” that Steinberg or the principals are “final policymakers” with respect to ensuring that students are free from anti-Semitism and bullying. Jeffes, 208 F.3d at 57. Instead, evidence in the record reveals that Steinberg and the principals had discretion to determine when to
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investigate bullying and harassment and how to respond to the behavior. The Second Circuit has “explicitly rejected the view that mere exercise of discretion [is] sufficient to establish municipal liability.” Anthony v. City of New York, 339 F.3d 129, 140 (2d Cir. 2003) (citing Jeffes, 208 F.3d at 57)). Moreover, the record here confirms that the Board had final policymaking authority with respect to discipline. (See Steinberg 25, 38–39; Carbone 9; Fisch 68; Boyle 42; Peters 336; Hopmayer 52). Cf. McDonald, 2003 WL 21782685, at *4 (explaining because the superintendent’s power was “circumscribed by . . . the Board’s authority to overrule the superintendent, . . . the superintendent cannot be said to be the final policymaker”). Specifically, Steinberg testified that the “Board of Education makes policy for the [D]istrict.” (Steinberg 27; Pls.’ Mem. 33). Furthermore, Plaintiffs acknowledge that although Steinberg and the principals helped draft or review the District’s Code of Conduct, it was ultimately “approved by the Board.” (Pls.’ Mem. 36). Accordingly, because New York Law provides that the Board, not Steinberg or the principals, has the power to “establish . . . rules and regulations concerning the order and discipline of the schools,” N.Y. Educ. Law § 1709, Plaintiffs point to no formal delegation of the Board’s policymaking authority to Steinberg or the principals, and the record demonstrates that the Board has policymaking and oversight authority with respect to the District’s disciplinary policies, the Court concludes that Plaintiffs have failed to carry their burden to establish that Steinberg and the principals are “final policymakers” as a matter of law. See Port Washington Teachers’ Ass’n, 478 F.3d at 500 (holding that school superintendent had “no rule-making authority” in regard to student discipline, as New York law had assigned that role to the Board.); Jeffes, 208 F.3d at 57–58 (“Where a plaintiff relies not on a formally
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declared or ratified policy, but rather on the theory that the conduct of a given official represents official policy, it is incumbent on the plaintiff to establish that element as a matter of law.”).
b. Deliberately Indifferent Policies and Practices Plaintiffs next contend that the District may be liable under § 1983 for its deliberately indifferent policies and practices. (Pls.’ Mem. 59). The Court agrees. “To establish deliberate indifference[,] a plaintiff must show that a policymaking official was aware of constitutional injury, or the risk of constitutional injury, but failed to take appropriate action to prevent or sanction violations of constitutional rights.” Jones, 691 F.3d at 81. “[D]eliberate indifference is a stringent standard of fault, and necessarily depends on a careful assessment of the facts at issue in a particular case.” Cash, 654 F.3d at 334 (internal citations and quotation marks omitted). “The operative inquiry,” in turn, “is whether those facts demonstrate that the policymaker's inaction was the result of conscious choice and not mere negligence.” Id (internal quotation marks omitted); see also Jones, 691 F.3d at 81 (“[D]emonstration of deliberate indifference requires a showing that the official made a conscious choice, and was not merely negligent.”). Accordingly, a jury may infer deliberate indifference “where the need to protect against constitutional violations was obvious, but the policymaker failed to make meaningful efforts to address the risk of harm to plaintiffs.” Cash, 654 F.3d at 334 (internal citations and quotation marks omitted). “A school district may be held liable for inadequate training, supervision[,] or hiring where the failure to train, hire[,] or supervise amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact.” Bliss v. Putnam Valley Cent.
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Sch. Dist., No. 06-CV-15509, 2011 WL 1079944, at *8 (S.D.N.Y. Mar. 24, 2011). The Second Circuit has identified three requirements to determine whether a “failure to train or supervise constitutes deliberate indifference.” Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007). The plaintiff must show “[1] that [the] policymaker knows to a moral certainty that her employees will confront a given situation . . . . [2] that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation . . . . [and] [3] that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights.” Id. (internal citations and quotation marks omitted). “A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (internal quotation marks omitted). “Policymakers’ continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action—the deliberate indifference—necessary to trigger municipal liability.” Id. (internal quotation marks omitted); see also City of Canton, 489 U.S. at 389 (explaining that a city may be liable under Section 1983 “[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality”). Moreover, “at the summary judgment stage, plaintiffs must identify a specific deficiency in the city's training program and establish that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation.” Jenkins, 478 F.3d at 94 (internal quotation marks omitted).
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Here, Plaintiffs have proffered sufficient evidence to survive summary judgment on Monell grounds based on the District’s response, or lack thereof, to anti-Semitic harassment. As discussed, there are issues of material fact as to whether the District had actual knowledge of the harassment that Plaintiffs allege. See supra § II(B)(2)(c). Moreover, there is specific evidence in the record that the Board had actual notice that school administrators were confronting numerous instances of anti-Semitic bullying. Cf. Jenkins, 478 F.3d at 94 (explaining that a plaintiff must show that “the policymaker knows to a moral certainty that her employees will confront a given situation” (internal quotation marks omitted)). Mrs. E. copied at least one member of the PBCSD School Board on four emails informing administrators that the harassment of her daughter for three years “escalated every year to the point that [T.E.] . . . beg[ged] [her] to not have to return to . . . school,” (Defs.’ 56.1 Resp. ¶¶ 211–12; Maazel Decl. Ex. 22; Winter 182), that Winter’s response to swastikas throughout the school was inadequate, (see Defs.’ 56.1 Resp. ¶ 216; Maazel Decl. Ex 24), that T.E. witnessed one student draw a picture on his stomach and say “it is a Hasidic Jew, so let’s shove pennies in his mouth,” (Defs.’ 56.1 Resp. ¶ 213; Maazel Decl. Ex. 25), and that T.E. suffered harassment on her bus from a high school student who had a history of “chanting white power and pro[-]Hitler statements” and threatened T.E. in the future, (Defs.’ 56.1 Resp. ¶ 218; Maazel Decl. Ex. 26). Further, Board member Greer was present at Mrs. E. and Mr. C.’s meeting with Steinberg on June 7, 2011, during which the parents discussed multiple incidents of anti-Semitic harassment that T.E. and O.C. suffered and asked administrators to take steps to address the problem. (See Defs.’ 56.1 Resp. ¶¶ 228–29, 234; Steinberg 268; Mr. C. 42–43, 46, 60). From this evidence, a
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reasonable jury could conclude that “there were circumstances putting [the District] on notice of [a] pattern of violations” of students’ rights. E.N. v. Susquehanna Tp. Sch. Dist., No. 09-CV1727, 2011 WL 3608544, at *7 (M.D. Pa. July 5, 2011) (finding that one specific instance of inappropriate sexual behavior by a teacher and the school district’s knowledge that the teacher had violated the school’s policies in the past put defendants “on notice of [a] pattern of violations” by the teacher); Karlen v. Westport Bd. of Educ., No. 07-CV-309, 2010 WL 3925961, at *11 (D. Conn. Sept. 30, 2010) (holding that parents’ complaints to district superintendent and school principals were sufficient to put school board on actual notice about peer-to-peer racial harassment).
Moreover, the emails and the meeting provided the Board with information that antiSemitic harassment presented administrators and teachers with “difficult choice[s]” concerning discipline and prevention, there was a pattern of school personnel “mishandling the[se] situation[s],” and that those choices had “cause[d] the deprivation of [students’] rights” to be free from harassment and bullying based on their race. Jenkins, 478 F.3d at 94; see L.C. ex rel C.P.C. v. William Penn Sch. Dist., No. 05-CV-997, 2005 WL 2396922, at *5 (E.D. Pa. Sept. 28, 2005) (holding that “[p]laintiffs may establish that the alleged failure to train” employees on how to handle student-on-student violence “amounted to deliberate indifference because: (1) the [s]chool [d]istrict . . . knew that their employees would confront violent students . . . who attacked innocent students; (2) such situations would involve difficult questions of discipline and punishment, or such situations resulted in the school employees’ failure to deal appropriately with violent students; and (3) the wrong choice by the school employee, i.e.[,] failure to handle
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student-on-student violence, will frequently cause deprivation of other students’ constitutional rights because the violent students would continue their attacks on innocents”). The Court also notes that Defendants have not presented any evidence nor do they make any claim that Meier or Greer or the Board in general took steps to address harassment, monitor the administrators’ response to anti-Semitism or bullying in general, or independently investigate Plaintiffs’ claims after the emails or the June 2011 meeting. See Ware v. Unified Sch. Dist. No. 492, Butler Cnty., State of Kan., 902 F.2d 815, 820 (10th Cir. 1990) (holding that there was sufficient evidence “to create a jury question on whether the [school] board acted with deliberate indifference to” a teacher’s First Amendment rights by approving an administrator’s recommendation “[n]otwithstanding . . . indications that the board knew [the] recommendation was in retaliation for [the plaintiff’s] position . . . [and] made no independent investigation.”).
Plaintiffs also “identify . . . specific deficienc[ies] in the [District’s] training program” and have presented enough evidence for a jury to determine whether “th[ose] deficienc[ies] [are] closely related to the ultimate injury, such that [they] actually caused the constitutional deprivation.” Jenkins, 478 F.3d at 94 (internal quotation marks omitted). Specifically, Plaintiffs allege that the District (i) failed to train employees to maintain files of harassers before middle school, (see Steinberg 104; Winter 54–55, 57); (ii) had no policy or training requiring school personnel to document, report, or address anti-Semitic graffiti in school, (see Carbone 55–57, 65–66); (iii) had no policy requiring the investigation of harassment in school, (see id. at 342); (iv) had no requirement for staff or teachers to report anti-Semitic or bias-related harassment, (see id. at 152–54, 176–77; Winter 375; Boyle 124–25); (v) had no tracking system for
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harassment and bias incidents, (see Carbone 252); and (vi) had no policy or guidelines for how to complete a Violent and Disruptive Incident Report (“VADIR”) under New York State law, (see Steinberg 346; Carbone 197). See E.N., 2011 WL 3608544, at *7 (holding that a school district’s failure “to formally investigate and make a record of sexual assault complaints could be arguably . . . viewed as increasing the likelihood that sexual harassment would go unchecked and possibly become recurrent and predictable so as to suggest that a failure to train reflects deliberate indifference”); see also Hill v. Hood, No. 04-CV-678, 2006 WL 39092, at *4 (S.D. Ill. Jan. 6, 2006) (allowing the plaintiff to proceed on a failure to train theory against the school district because, among other things, even though the district had a policy for searches and seizures at school in place and the superintendent testified that “copies of the policy were distributed to all principals and assistant principals in the [d]istrict,” and “that they were supposed to share and review the policy with their staffs[,] . . . no specific followup was done to be sure such information was shared”).
In light of evidence of the Board’s knowledge of anti-Semitic harassment and its failure to respond in any reasonable way, including through training of school administrators and teachers, a jury could find that the facts demonstrate the District’s “inaction was the result of conscious choice and not mere negligence.” Cash, 654 F.3d at 334 (internal quotation marks omitted). Accordingly, Defendants are not entitled to Summary Judgment under Monell.
D. Plaintiffs’ Official Capacity And State Law Claims Defendants also move to dismiss Plaintiffs’ claims against Defendants in their official capacity, as such allegations are redundant, given Plaintiffs’ argument that the District is liable
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under Monell. See Schubert v. City of Rye, 775 F. Supp. 2d 689, 699 (S.D.N.Y. 2011) (noting that “where the governmental entity can itself be held liable for damages as a result of its official policy, a suit naming the legislators in their official capacity is redundant”). As Plaintiffs “do not press the[ir] official capacity claims,” (Pls.’ Mem. 60), the Court will grant Defendants’ request that they be dismissed.
Finally, the claims asserted by Plaintiffs under the provisions of New York Civil Rights Law are governed by similar standards as Plaintiffs’ § 1983 claims. See Lorenz v. Managing Dir., St. Luke’s Hosp., No. 09-CV-8898, 2010 WL 4922267, at *9 (S.D.N.Y. Nov. 5, 2010) (noting that federal courts interpreting New York state civil rights law have looked to federal law as a guide to their analysis of discrimination claims), adopted by, 2010 WL 4922541 (S.D.N.Y. Dec. 2, 2010). Accordingly, for the reasons discussed above, the Court denies Defendants’ Motion with respect to Plaintiffs’ state law claims against the District and T.E. and O.C.’s claims against Fisch and Winter in their individual capacities.
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III. CONCLUSION For the reasons stated above, Defendants' Motion for Summary Judgment is granted in
part and denied in part. In particular, the Court grants the motion to dismiss Plaintiffs' claims
against the individual defendants in their official capacity as redundant with Plaintiffs' claims against the District. The remainder of Defendants' Motion is denied. The Clerk of the Court is respectfully requested to terminate the pending motion. (See Dkt. No. 50.) SO ORDERED. Dated : November 3, 2014
White Plains, New York KE ETH M. KARAS UNITED STATES DISTRICT JUDGE
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Exhibit A

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Exhibit 1

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I. Introduction
The District will take action, in accordance with Title VI, its implementing regulations, and the United States Department of Education Office of Civil Rights (“OCR”) Guidance, to eliminate and prevent future instances of anti-Semitic harassment in its education programs and activities. To accomplish this, the District agrees to make all necessary and appropriate revisions to its harassment policies, appropriately and immediately respond to all conduct that may constitute antiSemitic harassment, ensure it fully investigates reported and observed conduct that may constitute anti-Semitic harassment, escalate remedial efforts by instituting additional measures when students are harassed on a repeated basis, and mitigate the effects of harassment that occurs. The District will also take proactive measures to address anti-Semitic incidents and issues in the school climate that have arisen or may arise from and/or contribute to a hostile educational environment.
II. District Policies and Procedures
A. By January 1, 2016, the District will review and revise its policies regarding discrimination, bullying and anti-harassment to ensure that the District’s polices cover anti-Semitic harassment. The policies to be reviewed will include: Policy 3420 – Non-discrimination and Anti-harassment Policy in School District; Policy 7552 – Bullying, Peer Abuse in the Schools and Policy 7554 – Dignity for All Students Act; and the District’s Code of Conduct. See Attachment A for current policies.
B. In reviewing its policies regarding discrimination, bullying and anti-harassment, the District will ensure that the policies include the following:
1. specify that all harassment, including anti-Semitic harassment, is prohibited in the District;
2. include examples of the types of harassment prohibited by the District’s policies, including specific examples of prohibited anti-Semitic harassment;
3. include a zero indifference provision to address name-calling and bullying;
4. include a provision regarding the No Place for Hate Committee (See Section III);
5. require that District personnel promptly and thoroughly investigate, address and respond appropriately to harassment incidents in accordance with Title VI, its implementing regulations, and OCR Guidance, whether reported, observed, or brought to the District personnel’s attention by any other means. (See Section VI);
6. require that District personnel promptly photograph and completely remove

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all anti-Semitic graffiti located on any school property;
7. publicize to students and families the job description, contact information, including address, phone number and e-mail, for the District’s Title VI Coordinator (See Section VII);
8. notify the parent(s)/guardian(s) of the harassed student(s) and the harassing student(s) of all incidents of anti-Semitic harassment reported to or observed by District personnel in the middle schools and high school;
9. provide for the establishment and enforcement of meaningful, consistent, minimum consequences for all anti-Semitic and other forms of harassment and for consequences to increase in severity for repeated harassment, such that the minimum consequence is an age-appropriate detention and an educational component (essay, apology, etc.);
10. require that the District report and track all harassment incidents in accordance with VADIR and OCR/CRDC requirements;
11. provide that the District implement a system for reporting and maintaining records of complaints, records of investigations and responses to allegations of harassment, including providing a code for anti-Semitic harassment, requiring that each act of anti-Semitic harassment be reported as such, and tracking and keeping annual statistics of the total number of anti-Semitic incidents occurring each school year, by school and grade;
12. require professional development regarding the policies listed in Section II; and
13. provide, at the beginning of each school year, for the dissemination of a letter to the parents of all District students explaining that bullying and harassment, including anti-Semitic harassment, will not be tolerated in the District and explaining the applicable guidelines and minimum and maximum disciplinary consequences (up to and including long-term out of school suspension) for such conduct.
III. No Place for Hate Committee
A. Establishment of No Place for Hate Committee
During the 2013-14 school year, the District established the No Place for Hate Committee which continued to meet in the 2014-15 school year. The Committee will continue to operate for the 2015-16 school year and the No Place for Hate Committee or a similar committee will continue to operate in subsequent school years. The purpose of the No Place for Hate Committee is to assist the Pine Bush school community in developing: a deeper understanding

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of how the District is addressing bias, discrimination, bullying, intimidation and harassment and the skills, knowledge and awareness regarding prejudice and bias that are necessary to promote and sustain a culture of understanding and respect among students, staff, parents and community in our school district.
B. Membership of No Place for Hate Committee
The District solicited membership for the No Place for Hate Committee from all of the buildings in the District and from the community. The Committee is led by the Superintendent or designee and is composed of a Board member, teachers and administrators from all schools in the District and a community member.
C. Development of Annual Plan
During the 2013-14 school year, the No Place for Hate Committee developed a plan to be implemented during the 2015-16 school year. See Attachment B. The plan is considered a “living document” that can be revised and updated during the 2015-16 school year and in subsequent school years. The plan has 3 key goals:
• Student Goal: “To develop a comprehensive, consistent and coordinated student education plan that will promote diversity and prevent bullying for all students within the seven schools of the Pine Bush Central School District.”
• Staff/Teacher Goal: “To help all adults within the Pine Bush Central School District community recognize bias and the harm it inflicts on individuals and society; explore the value of diversity; improve intergroup relations; and combat racism, anti-Semitism and all forms of prejudice and bigotry.”
• Pine Bush Central School District Community Goal: “To engage the Pine Bush Central School District community in a collaborative approach to prepare our students to live and work successfully in a diverse society.”
D. Review of Implementation of Annual Plan
1. The No Place for Hate Committee shall review the implementation of the plan annually and shall provide a written annual report to the Superintendent regarding the results of its review of the plan. The Superintendent shall provide the annual report to the Board in an open meeting.
2. Based on the annual review, the No Place for Hate Committee shall develop a plan for the following school year.

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IV. Curriculum
As explained in the annual plan, the District will continue to implement a curriculum for all students at the District level and at each school to promote diversity and prevent bullying, as set forth in Attachment C.
V. Professional Development
A. As required by the annual plan in Section III, the District will continue to require professional development for all staff and teachers at the District level and at each school, as well as all students at each District school. See Attachment B.
B. The District will provide mandatory professional development on the policies regarding harassment, discrimination or bullying provided in Section II of this Settlement Agreement. This shall include how to recognize and report anti-Semitic graffiti, name-calling, insults, Holocaust “jokes,” and other forms of anti-Semitic harassment such as change-throwing. It also shall include professional development regarding complaint and grievance procedures and the procedures for reporting and investigating alleged bullying, discrimination and harassment, including alleged anti-Semitic harassment. The District will take additional and appropriate action for any District staff or teacher who does not follow the policies and procedures set forth in Section II of this Settlement Agreement, including discipline and professional development, to the extent consistent with applicable laws and collective bargaining agreements.
C. Annually, the District will review the effectiveness of the professional development plan, and based on this review, the District will revise its professional development plan if necessary, consistent with best practices, for all students, District employees, and others who regularly interact with students in the District (e.g., bus drivers, substitute teachers, and volunteers).
VI. Reporting and Investigations
Annually, the District will review and revise its complaint and grievance procedures and its procedures for reporting and investigating alleged bullying, discrimination and harassment, including alleged anti-Semitic harassment. In reviewing its procedures, the District will ensure that investigations include speaking privately with each of the students who are alleged to have been the victim(s) and perpetrator(s) of the harassment, interviewing other staff and students who may have witnessed the harassment, and gathering and preserving any relevant physical evidence (e.g. text messages, textbooks, photos of graffiti, etc.). In addition, the District shall ensure that the procedures require that, following the completion of any investigation, regardless

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of the outcome, the District follows up with the alleged victims to inform the victims of the results of the investigation, to offer counseling services, and to inquire whether there has been new or additional harassment. Finally, the District’s procedures will require that the District maintain clear records documenting the complaint, the investigation undertaken, and the results of such investigation and that the District maintain records in such a way that the District can easily locate, review, and report on the total number of anti-Semitic and other forms of harassment, as well as the outcome in such cases.
VII. Title VI Coordinator
A. Role and Selection of Title VI Coordinator
The District will designate at least one employee to serve as its Title VI Coordinator and will prepare a job description that clearly describes the role and responsibilities. The Title VI Coordinator’s responsibilities will include investigation of any allegations covered by Title VI. The District will ensure that the Title VI Coordinator has appropriate qualifications, training, and professional development to carry out the role of the Title VI Coordinator.
B. Notice for staff, parents and students
The District shall disseminate the name, job description, and contact information for the person designated as the Title VI Coordinator through a variety of means so that students, Pine Bush staff and the Pine Bush community are aware of the person designated as the Title VI Coordinator.
VIII. Anti-Bullying Survey
Beginning in the 2015-16 school year and for the next three school years, the District will develop and administer an anonymous Anti-Bullying Survey (Survey”) for all students starting in 6th grade. The District will ensure that the Survey includes specific questions about anti-Semitic harassment, for example, whether students have heard anti-Semitic slurs, Holocaust “jokes,” the word “Jew” in a pejorative sense, or white power chants and whether students have seen Hitler salutes, people rolling or throwing pennies in conjunction with anti-Semitic epithets, or observed swastikas. A section of the Survey will include the opportunity to answer in narrative form with specific examples. The District will consult with the Anti-Defamation League (“ADL”), the Wiesenthal Center, or the Rockland County Holocaust Center for Education and Tolerance in developing the Survey to determine its effectiveness in assessing the presence and impact of harassment at each middle and high school in the District and in reviewing, analyzing and making recommendations regarding necessary changes to the District’s policies and procedures.
IX. Consultants/Partners and OCR
A. The District has established partnerships at the national and local levels to assist

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with addressing harassment and bullying. These include the ADL, the Wiesenthal Center, and March for the Living, the Orange County Greater Jewish Foundation, Rockland County Holocaust Center for Education and Tolerance and the New York State Center for School Safety. The District shall continue to work with some or all of these consultants and partners.
B. For the duration of this settlement agreement, the District will consult with the ADL, the Wiesenthal Center, or the Rockland County Holocaust Center for Education and Tolerance regarding implementation of this Settlement Agreement, including addressing, preventing and responding to anti-Semitic harassment in District schools. The District will be responsible for any costs associated with the retention of the consultants.
C. On an annual basis, for the duration of this Settlement Agreement, the District will seek technical assistance from OCR regarding the policies and procedures, professional development, and curriculum set forth in this Settlement Agreement. In consultation with OCR, the District will revise its relevant policies and procedures, professional development, and curriculum in accordance with the recommendations of OCR, unless otherwise prohibited by laws or collective bargaining agreements.
X. Mental Health Needs of Students
The District agrees that a counselor or other professional qualified to assist students with mental health concerns will be available to assist students who have mental health concerns as a result of or in connection with harassment or bullying. The District’s Mental Health Committee, in consultation with the ADL, the Wiesenthal Center, or the Rockland County Holocaust Center for Education and Tolerance, will review and assess current practices in the District with regard to assisting middle and high school students who are targets of harassment, including students who may be at risk for mental health problems that include, but are not limited to, depression, anxiety, cutting and other self-injurious behaviors, and/or suicidal ideation or suicide attempts. In consultation with the ADL, the Wiesenthal Center, or the Rockland County Holocaust Center for Education and Tolerance, the District’s Mental Health Committee will develop and implement a plan to effectively address, assist and respond to middle and high school students who are targets of harassment.
XI. Reporting to Plaintiffs
In July 2016 and July 2018, defendants will report in writing to plaintiffs (c/o Emery Celli) setting forth the steps they have taken to comply with this Exhibit 1 to the Settlement Agreement. The reports will be kept confidential.

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Attachment A

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2013

3420 5 of 5

Community Relations

SUBJECT: NON-DISCRIMINATION AND ANTI-HARASSMENT IN THE SCHOOL DISTRICT (Cont'd.)
address any unresolved complaints and/or unsatisfactory prior determinations by the applicable Compliance Officer(s). Such regulations will be developed in accordance with federal and state law as well as any applicable collective bargaining agreement(s).
The Superintendent/designee(s) will affirmatively discuss the topic of harassment with all employees and students, express the District's condemnation of such conduct, and explain the sanctions for such harassment. Appropriate training and/or "awareness" programs will be established for staff and students to help ensure knowledge of and familiarity with the issues pertaining to harassment in the schools, and to disseminate preventative measures to help reduce such incidents of prohibited conduct. Furthermore, special training will be provided for designated supervisors and managerial employees, as may be necessary, for the investigation of harassment complaints.
A copy of this policy and its accompanying regulations will be available upon request and may be posted at various locations in each school building. The District's policy and regulations on antiharassment will be published in appropriate school publications such as teacher/employee handbooks, student handbooks, and/or school calendars.
This policy should not be read to abrogate other District policies and/or regulations or the District Code of Conduct prohibiting other forms of unlawful discrimination, inappropriate behavior, and/or hate crimes within this District. It is the intent of the District that all such policies and/or regulations be read consistently to provide the highest level of protection from unlawful discrimination in the provision of employment/educational services and opportunities. However, different treatment of any member of the above named group which has a legitimate, legal and nondiscriminatory reason shall not be considered a violation of District policy.
Age Discrimination in Employment Act, 29 USC Section 621 Americans With Disabilities Act, 42 USC Section 12101 et seq. Section 504 of the Rehabilitation Act of 1973, 29 USC Section 794 et seq. Title VI of the Civil Rights Act of 1964, 42 USC Section 2000d et seq. Title VII of the Civil Rights Act of 1964, 42 USC Section 2000e et seq. Title IX of the Education Amendments of 1972, 20 USC Section 1681 et seq. Civil Rights Law Section 40-c Civil Service Law Section 75-B Education Law Section 2801(1) Executive Law Section 290 et seq. Military Law Sections 242 and 243
NOTE: Refer also to Policies #6121 -- Sexual Harassment of District Personnel #7551 -- Sexual Harassment of Students
Adopted: 2011 Revised: 9/24/12; 10/8/13

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Attachment B

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Attachment C

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Exhibit 2

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JOINT STATEMENT OF THE PARTIES ON SETTLEMENT OF THE T.E. v. PINE BUSH CENTRAL SCHOOL DISTRICT ET AL LITIGATION
The Pine Bush Central School District and five former or current students today jointly announced the settlement of a federal civil rights action filed in March of 2012.
After several years of investigation, the parties came together to reach a resolution based on a comprehensive plan to address anti-Semitic harassment allegations in the school system and the District’s commitment to continue its efforts at strengthening tolerance and anti-bullying initiatives.
Anti-Semitic harassment is wrong. The District will never condone anti-Semitic slurs or graffiti, Holocaust ‘jokes,’ or physical violence. No family should have to experience the hurt and pain that bullying and name-calling can cause children to endure because of their religious, national or cultural identity.
In recent years, the District has undertaken a number of steps to supplement its anti-harassment and tolerance programs including working with the Anti-Defamation League to enhance its curriculum on tolerance. As part of the settlement, the District announced that it would further its initiatives to address anti-Semitism in the schools.
The District has committed to reforming its policies and procedures to improve monitoring, addressing and responding to anti-Semitic harassment. In addition, the District will continue to develop a thorough curriculum for students and faculty that promotes a better understanding of the roots of intolerance. The District will clarify the role and responsibility of the Title VI coordinator and work closely with families to ensure that affected students will receive appropriate supports.
Protecting its students from acts of bullying, harassment, intimidation and threats, is one of the School District’s highest priorities. With vigilant and consistent education and training, the School District can continue to provide students with a safe learning environment and the necessary tools to prepare them to be productive members of an increasingly global and diverse society.

 
 Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 1 of 27
U.S. District Court Southern District of New York (White Plains) CIVIL DOCKET FOR CASE #: 7:12−cv−02303−KMK

CLOSED,ECF

Eccleston et al v. Pine Bush Central School District Assigned to: Judge Kenneth M. Karas Cause: 42:1981 Equal Rights Under the Law
Plaintiff

Date Filed: 03/28/2012 Date Terminated: 07/10/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

T.E. by her next friend and parent, Sherri Eccleston

represented by Michael David Meth Meth Law Offices, P.C. 10 Moffatt Lane Suite Two Chester, NY 10918 (845)−469−9529 Fax: (845)−469−9989 Email: michael@methlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adele Phyllis Kimmel Public Justice 1825 K Street, Nw Suite 200 Washington, DC 20006 (202)−797−8600 Fax: (202)−232−7203 Email: akimmel@publicjustice.net PRO HAC VICE ATTORNEY TO BE NOTICED

Ilann M. Maazel Emery Celli Brinckerhoff &Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212−763−5000 Fax: 212−763−5001 Email: imaazel@ecbalaw.com ATTORNEY TO BE NOTICED

Ogilvie Andrew Fraser Wilson Emery Celli Brinckerhoff &Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 (212)763−5000 Fax: (212)763−5001 Email: awilson@ecbalaw.com ATTORNEY TO BE NOTICED

Zoe Antonia Salzman Emery Celli Brinckerhoff &Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 (212)−763−5000 Fax: (212)−763−5001 Email: zsalzman@ecbalaw.com ATTORNEY TO BE NOTICED

Plaintiff
O.C. and D.C by their next friend and parent, David

represented by Michael David Meth (See above for address)

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 2 of 27

Cohen

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adele Phyllis Kimmel (See above for address) ATTORNEY TO BE NOTICED

Ilann M. Maazel (See above for address) ATTORNEY TO BE NOTICED

Ogilvie Andrew Fraser Wilson (See above for address) ATTORNEY TO BE NOTICED

Zoe Antonia Salzman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
A.R. and D.R. by their next friend and parent, Jerrold Rosen

represented by Michael David Meth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adele Phyllis Kimmel (See above for address) ATTORNEY TO BE NOTICED

Ilann M. Maazel (See above for address) ATTORNEY TO BE NOTICED

Ogilvie Andrew Fraser Wilson (See above for address) ATTORNEY TO BE NOTICED

Zoe Antonia Salzman (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Pine Bush Central School District

represented by Laura Wong−Pan Thomas Drohan Waxman Petigrow &Mayle LLP 2517 Route 52 Hopewell Junction, NY 12533 (845) 592−7024 Fax: (845) 592−7020 Email: lwong−pan@tdwpm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aron Zwi Karabel Gleason, Marrinan &Mazzola Mardon, P.C. 26 Broadway New York, NY 10004 (518)−432−7511 Fax: (518)−432−5221 Email: akarabel@tdwpm.com

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 3 of 27

TERMINATED: 01/10/2013

Daniel Petigrow Thomas, Drohan, Waxman, Petigrow &Mayle, LLP 2517 Route 52 Hopewell Junction, NY 12533 845 592−7000 Fax: 845 592−7020 Email: dpetigrow@tdwpm.com ATTORNEY TO BE NOTICED

Joan M. Gilbride Kaufman, Borgeest &Ryan, LLP (NYC) 120 Broadway, 14th Floor New york, NY 10271 (212)980−9600 Fax: (212) 980−9291 Email: jgilbride@kbrlaw.com ATTORNEY TO BE NOTICED

Maree Sneed Hogan Lovells Us LLP 555 13th Street, Nw Washington, DC 20004 (202)−637−6416 Fax: (202)−637−5910 Email: maree.sneed@hoganlovells.com PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Pine Bush Central School District Board of Education

represented by Laura Wong−Pan (See above for address) LEAD ATTORNEY

Daniel Petigrow (See above for address) ATTORNEY TO BE NOTICED

Joan M. Gilbride (See above for address) ATTORNEY TO BE NOTICED

Maree Sneed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Philip G. Steinberg Superintendent of Pine Bush Central School District, in his official and individual capacities

represented by Laura Wong−Pan (See above for address) LEAD ATTORNEY
Daniel Petigrow (See above for address) ATTORNEY TO BE NOTICED

Joan M. Gilbride (See above for address) ATTORNEY TO BE NOTICED

Maree Sneed (See above for address)

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 4 of 27

PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
John Boyle Principal of Crispell Middle School, in his official capacity

represented by Laura Wong−Pan (See above for address) LEAD ATTORNEY

Joan M. Gilbride (See above for address) ATTORNEY TO BE NOTICED

Maree Sneed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Eric Winter Principal of Pine Bush Elementary School and former Assistant Principal of Crispell Middle School

represented by Laura Wong−Pan (See above for address) LEAD ATTORNEY
Daniel Petigrow (See above for address) ATTORNEY TO BE NOTICED

Joan M. Gilbride (See above for address) ATTORNEY TO BE NOTICED

Maree Sneed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Steve Fisch former Principal of Pine Bush Elementary School, in his individual capacity

represented by Laura Wong−Pan (See above for address) LEAD ATTORNEY
Daniel Petigrow (See above for address) ATTORNEY TO BE NOTICED

Joan M. Gilbride (See above for address) ATTORNEY TO BE NOTICED

Maree Sneed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Robert Peters former Assistant Principal of Crispell Middle School, in his individual capacity

represented by Laura Wong−Pan (See above for address) LEAD ATTORNEY

Daniel Petigrow (See above for address) ATTORNEY TO BE NOTICED

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 5 of 27

Joan M. Gilbride (See above for address) ATTORNEY TO BE NOTICED

Maree Sneed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Aaron Hopmayer Principal of Pine Bush High School, in his official capacity

represented by Laura Wong−Pan (See above for address) LEAD ATTORNEY

Joan M. Gilbride (See above for address) ATTORNEY TO BE NOTICED

Maree Sneed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Interested Party
United States of America Department of Justice

Date Filed 03/28/2012 03/28/2012 03/28/2012 03/28/2012 04/10/2012 04/10/2012
04/16/2012
06/18/2012 07/20/2012

# Docket Text
1 COMPLAINT against Pine Bush Central School District. (Filing Fee $ 350.00, Receipt Number 465407002969) Document filed by Sherri Eccleston, David Cohen, Jerold Rosen. (mml) (Entered: 03/30/2012)
SUMMONS ISSUED as to Pine Bush Central School District. (mml) (Entered: 03/30/2012)
Case Designated ECF. (mml) (Entered: 03/30/2012)
Magistrate Judge Paul E. Davison is so designated. (mml) (Entered: 03/30/2012)
2 AFFIDAVIT OF SERVICE of Summons and Complaint. All Defendants. Service was accepted by Deborah June District Clerk. Document filed by Sherri Eccleston, David Cohen, Jerold Rosen. (Meth, Michael) (Entered: 04/10/2012)
3 SUMMONS RETURNED EXECUTED Summons and Complaint served. All Defendants. Service was accepted by Deborah June District Clerk. Document filed by Sherri Eccleston, David Cohen, Jerold Rosen. (Meth, Michael) (Entered: 04/10/2012)
4 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Aron Z. Karabel dated 4/16/2012 re: Defendants respectfully request that, upon consent of Plaintiff's counsel, the Court extend Defendant's time to serve its Answer to Plaintiffs' complaint by no later than Monday, June 18, 2012. ENDORSEMENT: Granted. (Signed by Judge Kenneth M. Karas on 4/16/2012) (rj) (Entered: 04/16/2012)
5 ANSWER to 1 Complaint. Document filed by Pine Bush Central School District.(Karabel, Aron) (Entered: 06/18/2012)
6 CALENDAR NOTICE: Please take notice that the above captioned matter has been scheduled for: Rule (16) conference before the Honorable Kenneth M. Karas, United States District Judge, on Monday, August 6, 2012 at 11:15 a.m. in Courtroom 521, U. S. District Court, 300 Quarropas Street, White Plains, New York 10601. Any scheduling difficulties must be brought to the attention of the Court in writing, at least five business days beforehand. Initial Conference set for

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09/18/2012 09/18/2012 09/19/2012 10/05/2012 10/10/2012
10/19/2012 10/26/2012 11/01/2012 11/01/2012

8/6/2012 at 11:15 AM in Courtroom 521, 300 Quarropas Street, White Plains, NY 10601 before Judge Kenneth M. Karas. (Signed by Judge Kenneth M. Karas on 7/20/2012) (lnl) (Entered: 07/20/2012)
7 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge Paul E. Davison. (Signed by Judge Kenneth M. Karas on 9/18/2012) (mml) (Entered: 09/18/2012)
8 ORDER:In order to facilitate the progress of pre−trial discovery of this litigation in a just, speedy and inexpensive manner, to insure compliance with the case management plan, and to prevent the accumulation of unresolved discovery issues, the following procedures will be followed for the resolution of discovery disputes as set forth in this order. (Signed by Magistrate Judge Paul E. Davison on 9/18/2012) (rj) (Entered: 09/19/2012)
9 SCHEDULING ORDER:The matter has been scheduled before the Honorable Paul E. Davison, United States Magistrate Judge, for a telephone conference on October 5, 2012 at 9:30 am. Plaintiffs counsel will be responsible for placing the conference call. Please have all parties on the line when calling chambers. Telephone Conference set for 10/5/2012 at 09:30 AM before Magistrate Judge Paul E. Davison. (Signed by Magistrate Judge Paul E. Davison on 9/19/2012) (rj) (Entered: 09/20/2012)
Minute Entry for proceedings held before Magistrate Judge Paul E. Davison: Telephone Conference held on 10/5/2012. Next conference by phone: 12/3/12 at 10:00 am. ( Telephone Conference set for 12/3/2012 at 10:00 AM before Magistrate Judge Paul E. Davison.). (fk) (Entered: 10/05/2012)
10 ENDORSED LETTER addressed to Magistrate Judge Paul E. Davison from Aron Z Karabel dated 10/9/2012 re: Defense counsel submits this letter in response to plaintiffs' request to amend their complaint to (1) modify their Section 1983 and Title VI claims; (2) add state law claims; (3) modify the relief requested; and (4) name additional defendants in their individual capacities. ENDORSEMENT: Counsel for Defendants having provided "written consent" to certain aspects of Plaintiffs' proposal to amend their complaint, see Rule 15(a)(2), Fed. R. Civ. P., but having withheld consent as to other aspects of the proposed pleading, it is hereby ORDERED, that to the extent that Plaintiffs seek leave to amend their complaint to name additional defendants in their additional capacities, they shall file a motion seeking that relief on or before October 19, 2012. The motion shall be accompanied by a copy of the entire proposed amended pleading, but Plaintiffs shall confine their argument to the portions of the pleading to which defendants have not consented. Defendants shall reply to the motion on or before October 26, 2012, and any further response from Plaintiffs shall be filed by October 31, 2012., ( Motions due by 10/19/2012., Responses due by 10/31/2012, Replies due by 10/26/2012.) (Signed by Magistrate Judge Paul E. Davison on 10/10/2012) (rj) (Entered: 10/10/2012)
11 FIRST MOTION to Amend/Correct Complaint. Document filed by David Cohen, Sherri Eccleston, Jerold Rosen. (Attachments: # 1 Exhibit First Amended Complaint, # 2 Exhibit Letter dated October 9, 2012)(Meth, Michael) (Entered: 10/19/2012)
12 MEMORANDUM OF LAW in Opposition re: 11 FIRST MOTION to Amend/Correct Complaint.. Document filed by Pine Bush Central School District. (Karabel, Aron) (Entered: 10/26/2012)
13 ENDORSED LETTER addressed to Magistrate Judge Paul E. Davison from Michael D. Meth dated 10/31/2012 re: respectfully requesting a one week adjournment on the return date of plaintiff's motion so that we may have the opportunity to reply to the defendant's opposition papers. ENDORSEMENT: Reply papers due 11/7/2012., (Signed by Magistrate Judge Paul E. Davison on 10/31/2012) (lb) (Entered: 11/01/2012)
14 RULE 16(b) SCHEDULING ORDER: If necessary, Plaintiffs shall file the motion for leave to amend complaint by 10/19/2012. Response due by 10/26/2012. Reply

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11/07/2012 11/26/2012 11/27/2012 11/28/2012 11/29/2012 12/03/2012
12/06/2012
12/26/2012 01/04/2013 01/07/2013 01/07/2013 01/08/2013

due by 10/31/2012. All Discovery due by 2/1/2013. (Signed by Magistrate Judge Paul E. Davison on 10/26/2012) (lb) (Entered: 11/01/2012)
15 FIRST REPLY MEMORANDUM OF LAW in Support re: 11 FIRST MOTION to Amend/Correct Complaint.. Document filed by David Cohen, Sherri Eccleston, Jerold Rosen. (Meth, Michael) (Entered: 11/07/2012)
16 MOTION for Adele P. Kimmel to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8004908. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by David Cohen, Sherri Eccleston, Jerold Rosen.(Kimmel, Adele) (Entered: 11/26/2012)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 16 MOTION for Adele P. Kimmel to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8004908. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 11/27/2012)
17 ORDER granting 16 Motion for Adele P. Kimmel to Appear Pro Hac Vice (HEREBY ORDERED by Magistrate Judge Paul E. Davison)(Text Only Order) (Davison, Paul) (Entered: 11/28/2012)
18 NOTICE of Substitution of Attorney. Old Attorney: Aron Karabel, New Attorney: Laura Wong−Pan, Address: Thomas, Drohan, Waxman, Petigrow &Mayle LLP, 2517 Route 52, Hopewell Junction, NY, USA 12533, 845−592−7000. Document filed by Pine Bush Central School District. (Wong−Pan, Laura) (Entered: 11/29/2012)
Minute Entry for proceedings held before Magistrate Judge Paul E. Davison: Telephone conference held. The deadline for the completion of all discovery is extended to 3/1/13. Next conference by phone: 1/8/13 at 9:30 am.Telephone Conference held on 12/3/2012, ( Discovery due by 3/1/2013.), ( Telephone Conference set for 1/8/2013 at 09:30 AM before Magistrate Judge Paul E. Davison.). (rj) (Entered: 12/03/2012)
19 MEMORANDUM AND ORDER: For the reasons set forth above, Plaintiffs motion to amend is GRANTED IN PART AND DENIED IN PART. To the extent Plaintiffs wish to seek leave to further amend their pleading to address defects identified herein, they shall do so within 30 days. The Clerk is respectfully directed to terminate the motion. (Dkt. 11.) (Signed by Magistrate Judge Paul E. Davison on 12/6/2012) (rj) (Entered: 12/06/2012)
20 FIRST MOTION to Amend/Correct Memorandum and Order dated December 6, 2012. Document filed by David Cohen, Sherri Eccleston, Jerold Rosen. Return Date set for 1/17/2013 at 09:30 AM. (Attachments: # 1 Exhibit Memorandum and Order dated December 6, 2012, # 2 Exhibit First Proposed Amended Complaint)(Meth, Michael) (Entered: 12/26/2012)
21 MEMORANDUM OF LAW in Opposition re: 20 FIRST MOTION to Amend/Correct Memorandum and Order dated December 6, 2012.. Document filed by Pine Bush Central School District. (Wong−Pan, Laura) (Entered: 01/04/2013)
25 AMENDED COMPLAINT amending 1 Complaint against John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter with JURY DEMAND. Document filed by O.C. and D.C, T.E., A.R. and D.R. Related document: 1 Complaint. (mml) (Entered: 01/14/2013)
AMENDED SUMMONS ISSUED as to John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Entered: 01/14/2013)
Minute Entry for proceedings held before Magistrate Judge Paul E. Davison: Telephone conference held. Next conference by phone: 2/7/13 at 9:30 am.Telephone Conference held on 1/8/2013, ( Telephone Conference set for 2/7/2013 at 09:30 AM before Magistrate Judge Paul E. Davison.). (rj) (Entered:

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01/08/2013 01/10/2013
01/10/2013 01/23/2013

01/08/2013)
22 AMENDED MEMORANDUM ORDER granting in part and denying in part 20 Motion to Amend/Correct. For the reasons set forth above, Plaintiffs' motion to amend is GRANTED IN PART AND DENIED IN PART. The Clerk is directed to terminate the currently pending motion(Dkt. 20). (Signed by Magistrate Judge Paul E. Davison on 1/8/2013) (rj) (Entered: 01/08/2013)
23 ORDER: In order that defendant Pine Bush Central School District (Defendant) may comply with its discovery obligations pursuant to the Federal Rules of Civil Procedure, the Court hereby ORDERS Defendants to release to Plaintiffs certain educational records as defined and governed by the Family Education Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g. The records, which concern students who are not parties to this action and shall be produced without redaction of personal identification information, include disciplinary referrals and incident reports related to the allegations made and/or defenses raised in this action; handwritten notes containing information about non−parties that are related to the allegations made and/or defense raised; andrecords maintained through the CrossPointe Schools online electronic system, with redaction of events identified on the documents that are unrelated to the allegations made and/or the defense raised. FERPA provides for the release of educational records. including student records. without parental consent under limited circumstances. including issuance of a judicial order. § 1232g(b)(2)(B).To ensure compliance with FERPA, and as a condition precedent to the release of these records to Plaintiffs. Defendants are ORDERED to notify either (a) the parent/guardian of the student, or (b) if the student is either 18 years old or attending an institution of post secondary education, the student, of defendants intention to release student records. Such notification shallbe accompanied by a copy of this Order. No records shall be disclosed to Plaintiffs earlier than five (5) days after the notice ordered herein has been served. It is further ORDERED that no student records shall be disclosed until a protective order covering the records has been entered by the Court. Counsel are directed to confer and thereafter submit a mutually agreeable proposed protective order. (Signed by Magistrate Judge Paul E. Davison on 1/10/2013) (rj) (Entered: 01/11/2013)
24 ENDORSED LETTER addressed to Magistrate Judge Paul E. Davison from Laura Wong−Pan dated 1/10/2013 re: We request an Order under Local Rule 1.4 directing that Aron Karabel, Esq. be relieved as counsel for the Pine Bush Central School District, and substituting the undersigned in his stead. The reason for the request is that Mr. Karabel is no longer with this office. At this point, since Mr. Karabel is named as attorney of record for this defendant, we are not receiving ECF notices. ENDORSEMENT: So Ordered. (Signed by Magistrate Judge Paul E. Davison on 1/10/2013) (rj) (Entered: 01/11/2013)
26 ADDENDUM ORDER: This Addendum Order is an integral part of an Order entered today governing the confidential treatment of documents and/or information.Notwithstanding any other provision of the Order, no document may be filed under seal with the Clerk of the Court without a further Order of this Court entered upon an application addressed to the specific document(s) sought to be sealed. Any such application must include a showing that the standards for sealing have been met. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119−20 (2d Cir. 2006). Any party that wishes to file a motion or other pleading containing document(s) or information for which confidential treatment is sought shall file a redacted pleading with the Clerk and submit the unredacted pleading directly to the Court along with the sealing application described in the preceding paragraph. on CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER: "Confidential Information as used herein means documents and information consisting of educational records and documents maintained by the Pine Bush Central School District concerning students who are not a party to this action. Such Confidential Information shall not be used for any purposes by plaintiffs other than in connection with this litigation and shall not be disclosed to any person or entity except as provided herein as set forth in this Order. (Signed by Magistrate Judge Paul E. Davison on 1/23/2013) (rj) (Entered: 01/23/2013)

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 9 of 27

01/29/2013 01/29/2013 01/30/2013 02/05/2013 02/05/2013 02/05/2013 02/07/2013 02/13/2013
02/15/2013
02/22/2013 02/26/2013
03/26/2013

27 SUMMONS RETURNED EXECUTED Summons and Amended Complaint, served. All Defendants. Service was accepted by Laura Wong−Pan, Esq.. Service was made by Mail. Document filed by O.C. and D.C, T.E., A.R. and D.R.. (Meth, Michael) (Entered: 01/29/2013)
28 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,. All Defendants. Service was accepted by Laura Wong−Pan, Esq.. Service was made by Mail. Document filed by O.C. and D.C, T.E., A.R. and D.R.. (Meth, Michael) (Entered: 01/29/2013)
29 ANSWER to 25 Amended Complaint,. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter.(Wong−Pan, Laura) (Entered: 01/30/2013)
30 NOTICE OF APPEARANCE by Ogilvie Andrew Fraser Wilson on behalf of A.R. and D.R., O.C. and D.C, T.E. (Wilson, Ogilvie) (Entered: 02/05/2013)
31 NOTICE OF APPEARANCE by Ilann M. Maazel on behalf of A.R. and D.R., O.C. and D.C, T.E. (Maazel, Ilann) (Entered: 02/05/2013)
32 NOTICE OF APPEARANCE by Zoe Antonia Salzman on behalf of A.R. and D.R., O.C. and D.C, T.E. (Salzman, Zoe) (Entered: 02/05/2013)
Minute Entry for proceedings held before Magistrate Judge Paul E. Davison: Telephone conference held. Next conference by phone: 3/26/13 at 9:30 am.Telephone Conference held on 2/7/2013, ( Status Conference set for 3/26/2013 at 09:30 AM before Magistrate Judge Paul E. Davison.). (rj) (Entered: 02/07/2013)
33 ENDORSED LETTER addressed to Magistrate Judge Paul E. Davison from Zoe Salzman dated 2/13/2013 re: We write on behalf of all parties, pursuant to Your Honor's direction at the status conference held on February 7, 2013, to propose the following new discovery schedule; Close of all fact discovery May 1, 2013, Plaintiffs' expert disclosures May 15, 2013, Defendants' expert disclosures June 14, 2013, Close of all expert discovery July 15, 2013. ENDORSEMENT: So Ordered., ( Expert Discovery due by 7/15/2013., Fact Discovery due by 5/1/2013.) (Signed by Magistrate Judge Paul E. Davison on 2/13/2013) (rj) (Entered: 02/14/2013)
34 STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...Now Therefore IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for Plaintiffs and Defendants as follows As used herein,"Confidential Materials" shall mean medical or psychiatric records for medical and/or psychiatric treatment of Plaintiffs, and the information contained therein, and any records provided by any medical or psychiatric provider pursuant to the releases requested by Defendants for medical and/or psychiatric records as set forth in this order. (Signed by Magistrate Judge Paul E. Davison on 2/15/2013) (rj) (Entered: 02/15/2013)
35 NOTICE OF APPEARANCE by Joan M. Gilbride on behalf of John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg (Gilbride, Joan) (Entered: 02/22/2013)
36 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Zoe Salzman dated 2/13/2013 re: We write on behalf of all parties to propose that that the Court adjourn the pre−motion conference currently scheduled for March 15 to after July 15, 2013. ENDORSEMENT: The Court will hold a status conference on July 26, 2013, at 2:00. This conference will not be adjourned at the Parties' request. SO ORDERED. (Status Conference set for 7/26/2013 at 02:00 PM before Judge Kenneth M. Karas.) (Signed by Judge Kenneth M. Karas on 2/24/2013) (mml) (Entered: 02/26/2013)
Minute Entry for proceedings held before Magistrate Judge Paul E. Davison: Telephone Conference held on 3/26/2013. Next conference (in person): 4/1/13 at 2:00 pm. (Conference set for 4/1/2013 at 02:00 PM before Magistrate Judge Paul E. Davison.) (mml) (Entered: 03/26/2013)

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 10 of 27

04/01/2013
04/05/2013 04/12/2013 05/02/2013 06/10/2013 06/11/2013 07/16/2013
07/16/2013
07/17/2013
07/19/2013 07/19/2013 09/10/2013

Minute Entry for proceedings held before Magistrate Judge Paul E. Davison: Conference held to address discovery disputes. Disputes resolved on the record. Defendants aregranted leave to file an amended answer as discussed on the record. Next conference by phone: 5/2/13 at 2:00 pm.Discovery Hearing held on 4/1/2013, ( Telephone Conference set for 5/2/2013 at 02:00 PM before Magistrate Judge Paul E. Davison.). (rj) (Entered: 04/02/2013)
37 AMENDED ANSWER to 25 Amended Complaint,. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Wong−Pan, Laura) (Entered: 04/05/2013)
Minute Entry for proceedings held before Magistrate Judge Paul E. Davison: Telephone Conference held on 4/12/2013. Telephone conference held to address discovery issues. Issues resolved. The telephone conference currently scheduled for 5/2/13 at 2:00 pm shall proceed. (lnl) (Entered: 04/12/2013)
Minute Entry for proceedings held before Magistrate Judge Paul E. Davison: Telephone conference held. Next conference by phone: 6/10/13 at 9:30 am.Telephone Conference held on 5/2/2013, ( Telephone Conference set for 6/10/2013 at 09:30 AM before Magistrate Judge Paul E. Davison.). (rj) (Entered: 05/02/2013)
Minute Entry for proceedings held before Magistrate Judge Paul E. Davison: Telephone Conference held on 6/10/2013. Telephone Conference set for 7/19/2013 at 10:00 AM before Magistrate Judge Paul E. Davison. (rj) (Entered: 06/10/2013)
38 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Laura Wong−Pan dated 6/10/2013 re: Counsel requests a June 28, 2013 deadline for submission of pre−motion conference letters, and a July 12, 2013 deadline for the submission of responses. ENDORSEMENT: Granted. SO ORDERED. (Signed by Judge Kenneth M. Karas on 6/11/2013) (mml) (Entered: 06/11/2013)
39 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Laura Wong−Pan dated 6/28/2013 re: Defendants request a pre−motion conference prior to filing their respective Rule 56 motions for summary judgment. ENDORSEMENT: The Court will hold a pre−motion conference on September 10, 2013, at 3:00. SO ORDERED. (Pre−Motion Conference set for 9/10/2013 at 03:00 PM before Judge Kenneth M. Karas.) (Signed by Judge Kenneth M. Karas on 7/15/2013) (mml) (Entered: 07/16/2013)
41 ORDER: Accordingly, the Court ORDERS that the letter (Dkt. No. 40) be removed immediately from the public docket and placed under seal. The Court also ORDERS that Plaintiffs fax to the Court another letter that complies with the privacy protections contained in Federal Rule of Civil Procedure 5.2. SO ORDERED. (Signed by Judge Kenneth M. Karas on 7/16/2013) (mml) (Entered: 07/17/2013)
42 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Ilann Maazel dated 7/12/2013 re: Were a motion' filed, plaintiff could continue this litany for 31 pages, showing the anti−Semitism in school was "severe and discriminatory," defendants had "actual knowledge" of the harassment, and they exhibited "deliberate indifference" in response. ENDORSEMENT: The Clerk of the Court is respectfully requested to docket this letter. SO ORDERED. (Signed by Judge Kenneth M. Karas on 7/17/2013) (mml) (Entered: 07/18/2013)
43 NOTICE OF CHANGE OF ADDRESS by Laura Wong−Pan on behalf of All Defendants. New Address:. (Wong−Pan, Laura) (Entered: 07/19/2013)
Minute Entry for proceedings held before Magistrate Judge Paul E. Davison: Telephone Conference held on 7/19/2013.Telephone conference held. Reference closed for magistrate purposes. (jty) (Entered: 07/19/2013)
Minute Entry for proceedings held before Judge Kenneth M. Karas: Pre−Motion Conference held on 9/10/2013. Ilann Maazel and Michael Meth for Plaintiffs. Laura Wong−Pan for Defendants. The Court held a pre−motion conference and set a briefing schedule. See scheduling order. Court reporter, Mary. (mml) (Entered: 09/11/2013)

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 11 of 27

09/11/2013
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12/06/2013 12/06/2013

44 SCHEDULING ORDER: Defendants must file and serve a motion for summary judgment, along with an accompanying memorandum of law and other supporting materials, by November 22, 2013. The memorandum of law shall not exceed fifty pages without prior permission of the Court. Plaintiffs must file and serve their opposition, which shall also not exceed 50 pages, by January 24, 2014. Defendants must file and serve their reply, which shall not exceed 25 pages, by March 3, 2013. No sur−reply will be permitted without prior permission of the Court. Any pending deadlines found in the Federal Rules of Civil Procedure or in any applicable statute are hereby stayed until the date the motion is due. Oral argument may be scheduled by the Court at a later date. (Motions due by 11/22/2013. Responses due by 1/24/2014. Replies due by 3/3/2014.) (Signed by Judge Kenneth M. Karas on 9/11/2013) (mml) (Entered: 09/12/2013)
45 LETTER addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated 11/18/2013 re: an Extension of their time to move for summary judgment, and proposing to modify the briefing schedule. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Maazel, Ilann) (Entered: 11/18/2013)
46 MEMO ENDORSEMENT on 45 LETTER addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated 11/18/2013 re: an Extension of their time to move for summary judgment, and proposing to modify the briefing schedule. ENDORSEMENT: The revised schedule is as follows: Moving Brief: 12/6/2013. Opposition Brief: 1/17/2014. Reply Brief: 2/7/2014. No more extensions will be granted. So Ordered. (Motions due by 12/6/2013. Responses due by 1/17/2014. Replies due by 2/7/2014.) (Signed by Judge Kenneth M. Karas on 11/19/2013) (lnl) (Entered: 11/19/2013)
47 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Maree Sneed to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit Certificates of Good Standing, # 2 Text of Proposed Order)(Wong−Pan, Laura) Modified on 11/19/2013 (bcu). (Entered: 11/19/2013)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice regarding Document No. 47 MOTION for Maree Sneed to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff.. The filing is deficient for the following reason(s): Filing fee not paid. Pay the filing fee by selecting the Pro Hac Vice Fee Payment event from the Other Documents menu item. (bcu) (Entered: 11/19/2013)
Pro Hac Vice Fee Payment: for 47 MOTION for Maree Sneed to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff.. Filing fee $ 200.00, receipt number 0208−9095982.(Wong−Pan, Laura) (Entered: 11/19/2013)
48 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Joan Gilbride, dated 11/15/2013, re: Counsel for defendant Pine Bush Central School District writes to request an extension of time to file its motion for summary judgment. Under the Court's September 10, 2013 Scheduling Order, Pine Bush's motion for summary judgment is due November 22, 2013. Pine Bush requests an extension of three weeks, to December 13, 2013, to file the motion for summary judgment. ENDORSEMENT: The Clerk of the Court is respectfully requested to docket this letter. So Ordered. (Signed by Judge Kenneth M. Karas on 11/21/2013) (lnl) (Entered: 11/22/2013)
49 FILING ERROR − DEFICIENT DOCKET ENTRY (See 50 MOTION)− MOTION for Summary Judgment. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. Responses due by 1/17/2013 Return Date set for 2/7/2014 at 11:59 PM.(Wong−Pan, Laura) Modified on 12/9/2013 (db). (Entered: 12/06/2013)
50 MOTION for Partial Summary Judgment. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. Responses

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due by 1/17/2014 Return Date set for 2/7/2014 at 11:59 PM.(Wong−Pan, Laura) (Entered: 12/06/2013)
51 AFFIDAVIT of Joan Carbone in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit A −, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F Part 1, # 7 Exhibit F Part 2, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K)(Wong−Pan, Laura) (Entered: 12/06/2013)
52 DECLARATION of Maree Sneed in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E (Part 1), # 6 Exhibit E (Part 1), # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K (Part 1), # 13 Exhibit K (Part 2), # 14 Exhibit L (part 1), # 15 Exhibit L (part 2), # 16 Exhibit L (part 3), # 17 Exhibit M, # 18 Exhibit N, # 19 Exhibit O 2005 Code of Conduct, # 20 Exhibit P 2007 Code of COnduct, # 21 Exhibit 2012 Code of Conduct, # 22 Exhibit R, # 23 Exhibit S, # 24 Exhibit T, # 25 Exhibit U, # 26 Exhibit V, # 27 Exhibit W, # 28 Exhibit X, # 29 Exhibit Y, # 30 Exhibit Z, # 31 Exhibit AA, # 32 Exhibit BB, # 33 Exhibit CC, # 34 Exhibit DD, # 35 Exhibit EE, # 36 Exhibit FF Police Report 12−2011, # 37 Exhibit GG, # 38 Exhibit HH, # 39 Exhibit II Police Report 1−2012, # 40 Exhibit JJ)(Wong−Pan, Laura) (Entered: 12/06/2013)
53 AFFIDAVIT of John Boyle in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Wong−Pan, Laura) (Entered: 12/06/2013)
54 AFFIDAVIT of Christopher Mummery in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit A, # 2 Exhibit B (PART 1), # 3 Exhibit B (PART 2), # 4 Exhibit B (PART 3), # 5 Exhibit C, # 6 Exhibit D, # 7 Errata E)(Wong−Pan, Laura) (Entered: 12/06/2013)
55 AFFIDAVIT of Deborha Brush in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Wong−Pan, Laura) (Entered: 12/06/2013)
56 RULE 56.1 STATEMENT. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Wong−Pan, Laura) (Entered: 12/06/2013)
57 MEMORANDUM OF LAW in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Wong−Pan, Laura) (Entered: 12/06/2013)
58 ORDER GRANTING MOTION FOR ADMISSION OF ATTORNEY MAREE SNEED PRO HAC VICE: IT IS HEREBY ORDERED that Attorney Maree Sneed is admitted to practice Pro Hac Vice in the above−captioned action in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Judge Kenneth M. Karas on 12/9/2013) (lnl) (Entered: 12/10/2013)
59 ENDORSED LETTER addressed to Judge Kenneth M. Karas from O. Andrew F. Wilson, dated 1/2/2014, re: Counsel writes on behalf of the plaintiffs to request an

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 13 of 27

01/14/2014 01/14/2014 01/16/2014
01/21/2014 01/21/2014
01/21/2014

additional twenty pates (for a total of seventy) for their consolidated brief in opposition to defendants' summary judgment motion. ENDORSEMENT: Plaintiffs are given ten additional pages (on top of the already given 25 additional pages) in the summary judgment opposition. So Ordered. (Signed by Judge Kenneth M. Karas on 1/6/2014) (ENDORSEMENT verified with KMK Chambers) (lnl) (Entered: 01/07/2014)
60 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Ilann M. Maazel, dated 1/10/2014, re: Counsel for the plaintiffs writes to request an additional four days over the holiday weekend from (1/17/14 − 1/21/14) to finalize their papers in opposition to summary judgment. Defendants consent to this request, provided that they are given a similar weekend extension from February 7 to February 11. ENDORSEMENT: Granted. So Ordered. (Signed by Judge Kenneth M. Karas on 1/14/2014) (lnl) (Entered: 01/14/2014)
Set/Reset Deadlines: Responses due by 1/21/2014. Replies due by 2/11/2014. (lnl) (Entered: 01/14/2014)
61 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Michael J. Byars dated 1/15/2014 re: Counsel for the United States writes: The United States respectfully requests leave to file a Statement of Interest in the above−referenced civil rights action. Specifically, the United States anticipates that its Statement of Interest will address the legal standards under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. ("Title VI"), and the United States Department of Education's implementing regulations, 34 C.F.R. §§ 100.1 et seq. The United States also respectfully requests that, if the above request is granted, the briefing schedule for defendants' summary judgment motion be extended by an additional three days. Thus, the United States would file its statement of interest on January 24,2014 (i.e., three days after the plaintiffs' opposition brief is due), and defendants would file their reply on February 14, 2014. The current date for defendants' reply submission is February 11, 2014. While the United States had hoped to submit its Statement of interest on the same day that plaintiffs' submission is due, January 21, 2014, the additional time is needed for our Office to coordinate with other governmental components. ENDORSEMENT: This requests is granted, but there will be no more extensions. So Ordered. (Signed by Judge Kenneth M. Karas on 1/16/2014) (lnl) (Entered: 01/17/2014)
62 MEMORANDUM OF LAW in Opposition re: 50 MOTION for Partial Summary Judgment.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) (Entered: 01/21/2014)
63 DECLARATION of Ilann M. Maazel in Opposition re: 50 MOTION for Partial Summary Judgment.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4 (Part 1), # 5 Exhibit 4 (Part 2), # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7 (Part 1), # 9 Exhibit 7 (Part 2), # 10 Exhibit 8 (Part 1), # 11 Exhibit 8 (Part 2), # 12 Exhibit 8 (Part 3), # 13 Exhibit 9, # 14 Exhibit 10, # 15 Exhibit 11, # 16 Exhibit 12, # 17 Exhibit 13, # 18 Exhibit 14, # 19 Exhibit 15, # 20 Exhibit 16, # 21 Exhibit 17, # 22 Exhibit 18, # 23 Exhibit 19, # 24 Exhibit 20, # 25 Exhibit 21, # 26 Exhibit 22, # 27 Exhibit 23, # 28 Exhibit 24, # 29 Exhibit 25, # 30 Exhibit 26, # 31 Exhibit 27, # 32 Exhibit 28, # 33 Exhibit 29, # 34 Exhibit 30, # 35 Exhibit 31, # 36 Exhibit 32, # 37 Exhibit 33, # 38 Exhibit 34, # 39 Exhibit 35, # 40 Exhibit 36, # 41 Exhibit 37, # 42 Exhibit 38, # 43 Exhibit 39, # 44 Exhibit 40, # 45 Exhibit 41, # 46 Exhibit 42, # 47 Exhibit 43, # 48 Exhibit 44, # 49 Exhibit 45, # 50 Exhibit 46, # 51 Exhibit 47, # 52 Exhibit 48, # 53 Exhibit 49, # 54 Exhibit 50, # 55 Exhibit 51, # 56 Exhibit 52 (Part 1), # 57 Exhibit 52 (Part 2), # 58 Exhibit 53, # 59 Exhibit 54, # 60 Exhibit 55, # 61 Exhibit 56, # 62 Exhibit 57, # 63 Exhibit 58, # 64 Exhibit 59, # 65 Exhibit 60, # 66 Exhibit 61, # 67 Exhibit 62, # 68 Exhibit 63, # 69 Exhibit 64, # 70 Exhibit 65, # 71 Exhibit 66, # 72 Exhibit 67, # 73 Exhibit 68, # 74 Exhibit 69, # 75 Exhibit 70, # 76 Exhibit 71, # 77 Exhibit 72, # 78 Exhibit 73, # 79 Exhibit 74)(Maazel, Ilann) (Entered: 01/21/2014)
64 DECLARATION of O. Andrew F. Wilson in Opposition re: 50 MOTION for Partial Summary Judgment.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10,

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# 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16)(Maazel, Ilann) (Entered: 01/21/2014)
65 DECLARATION of O. Andrew F. Wilson in Opposition re: 50 MOTION for Partial Summary Judgment.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Attachments: # 1 Exhibit 3 (Part 1))(Maazel, Ilann) (Entered: 01/21/2014)
66 RULE 56.1 STATEMENT. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) (Entered: 01/21/2014)
67 BRIEF re: 50 MOTION for Partial Summary Judgment. Statement of Interest of the United States. Document filed by United States of America Department of Justice.(Kennedy, David) (Entered: 01/24/2014)
68 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Laura Wong−Pan, dated 1/29/2014, re: Counsel for the Defendants writes to the Court to request a brief telephone conference regarding an issue related to the redactions made in several of the documents that were docketed. And for leave for an enlargement of Defendant's Reply Memorandum of Law, from 10 to 30 pages. ENDORSEMENT: Defendants may seek permission to remove the errantly filed documents and to replace them with properly redacted filings. Also, Defendants may file their 30−page reply, especially given the very recent involvement of the US Attorney's Office. So Ordered. (Signed by Judge Kenneth M. Karas on 1/30/2014) (lnl) (Entered: 01/31/2014)
69 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Laura Wong−Pan, dated 1/30/2014, re: Counsel writes to request an Order removing Documents numbered 52 through 57 from the public docket and will file replacement documents. It is also counsel's position that Plaintiffs' Exhibit 4 of Document 65 (Transcript of Steven Fisch), their Memorandum of Law and Rule 56.1 (Documents 65 and 66 require additional redactions to remove personally indentifiable information concerning a non−party minor. Plaintiff's attorneys advise that "as a courtesy (without conceding confidentiality)" they consent to the additional redactions to Document 65, by have not responded to a message concerning similar redactions to Document 62 and 66. ENDORSEMENT: Granted. All proposal replacements may be filed. So Ordered. (Signed by Judge Kenneth M. Karas on 1/30/2014) (lnl) (Entered: 01/31/2014)
70 MEMORANDUM OF LAW in Opposition re: 50 MOTION for Partial Summary Judgment. (Replacing Dkt. No. 62). Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) (Entered: 01/31/2014)
71 RULE 56.1 STATEMENT. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) (Entered: 01/31/2014)
72 MEMORANDUM OF LAW in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Wong−Pan, Laura) (Entered: 01/31/2014)
73 AFFIDAVIT of John Boyle in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Wong−Pan, Laura) (Entered: 01/31/2014)
74 AFFIDAVIT of Deborha Brush in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit Email, # 2 Exhibit Email, # 3 Exhibit Email, # 4 Exhibit Email)(Wong−Pan, Laura) (Entered: 01/31/2014)
75 AFFIDAVIT of Christopher Mummery in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 15 of 27

01/31/2014 01/31/2014
02/03/2014 02/03/2014 02/12/2014 02/21/2014 02/21/2014

Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit Photograph, # 2 Exhibit Discipline, # 3 Exhibit Notes, # 4 Exhibit Discipline, # 5 Exhibit Discipline)(Wong−Pan, Laura) (Entered: 01/31/2014)
76 RULE 56.1 STATEMENT. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Wong−Pan, Laura) (Entered: 01/31/2014)
77 DECLARATION of Maree Sneed in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit Amended Complaint, # 2 Exhibit Answer, # 3 Exhibit Amended Answer, # 4 Exhibit Transcript, # 5 Exhibit Transcript (Part 1), # 6 Exhibit Transcript (Part 2), # 7 Exhibit Transcript, # 8 Exhibit Transcript, # 9 Exhibit Transcript (part 2), # 10 Exhibit Transcript, # 11 Exhibit Transcript, # 12 Exhibit Transcript, # 13 Exhibit Transcript, # 14 Exhibit Transcript (Hopmayer), # 15 Exhibit Transcript (Hopmayer), # 16 Exhibit Transcript (Hopmayer), # 17 Exhibit Transcript (Steinberg), # 18 Exhibit Transcript (Carbone), # 19 Exhibit 2005 Code of COnduct, # 20 Exhibit 2007 Code of Conduct, # 21 Exhibit 2012 Code of Conduct, # 22 Exhibit Anti−Bullying Policies, # 23 Exhibit Elementary School COnduct and Disc. Handbook, # 24 Exhibit Discipline, # 25 Exhibit Work Order May 5, 2009, # 26 Exhibit Letter to Parents May 2009, # 27 Exhibit Discipline, # 28 Exhibit Detention, # 29 Exhibit Discipline, # 30 Exhibit Letter to US DOJ, # 31 Exhibit Letter to NYPD, # 32 Exhibit Email, # 33 Exhibit Email, # 34 Exhibit Emails, # 35 Exhibit Discipline, # 36 Exhibit Police Report 12−2011, # 37 Exhibit NYSED Document, # 38 Exhibit Discipline−related documents, # 39 Exhibit Police Report 1−2012, # 40 Exhibit Email)(Wong−Pan, Laura) (Entered: 01/31/2014)
78 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Laura Wong−Pan, dated 1/31/2014, re: Counsel writes: Plaintiffs have contacted us this afternoon, and indicated that Exhibit 4 to the Declaration of O. Andrew F. Wilson (Document 64) should be removed from the docket rather than Document 65. As earlier stated, both parties consent to the filing of replacement documents with full redactions. ENDORSEMENT: Granted, but Plaintiff is to re−file document #65. Document 64 is to be removed from the docket, so it can be refiled with appropriate redacting. So Ordered. (Signed by Judge Kenneth M. Karas on 2/3/2014) (lnl) (Entered: 02/03/2014)
79 DECLARATION of O. Andrew F. Wilson (replacing Dkt. No. 64 &65) in Opposition re: 50 MOTION for Partial Summary Judgment.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3 (Part 1 of 2), # 4 Exhibit 3 (Part 2 of 2), # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16)(Wilson, Ogilvie) (Entered: 02/03/2014)
80 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Laura Wong−Pan dated 2/11/2014 re: Counsel requests an extension of time to submit a reply memorandum. ENDORSEMENT: Granted. SO ORDERED. (Signed by Judge Kenneth M. Karas on 2/11/2014) (mml) (Entered: 02/14/2014)
81 COUNTER STATEMENT TO 76 Rule 56.1 Statement., RULE 56.1 STATEMENT. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Wong−Pan, Laura) (Entered: 02/21/2014)
82 AFFIDAVIT of Kelly King in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Wong−Pan, Laura) (Entered: 02/21/2014)

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 16 of 27

02/21/2014 02/21/2014 04/10/2014 06/02/2014 06/03/2014
06/18/2014 07/17/2014

83 DECLARATION of Maree Sneed in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit Transcript fo 4−1−13 proceeding, # 2 Exhibit Notice of Objections, # 3 Exhibit NSBA Letter, # 4 Exhibit USDOE Letter, # 5 Exhibit NYSED Commr. Decision, # 6 Exhibit NYSED Commr. Decision, # 7 Exhibit NYSED Commr. Decision, # 8 Exhibit VADIR Form)(Wong−Pan, Laura) (Entered: 02/21/2014)
84 REPLY MEMORANDUM OF LAW in Support re: 50 MOTION for Partial Summary Judgment.. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Wong−Pan, Laura) (Entered: 02/21/2014)
85 LETTER MOTION for Conference of oral argument on partial summary judgment motion addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated 4/10/2014. Document filed by A.R. and D.R., T.E..(Maazel, Ilann) (Entered: 04/10/2014)
86 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Zoe Salzman, dated 5/30/2014, re: Counsel for the plaintiffs writes to request an Order directing that Dkt. No. 63, and all exhibits attached thereto, be removed from the public docket and that they be permitted to file a replacement document. Counsel for Defendants consent to this request. ENDORSEMENT: Granted. So Ordered. (Signed by Judge Kenneth M. Karas on 5/30/2014) (lnl) (Entered: 06/02/2014)
87 DECLARATION of Ilann M. Maazel in Opposition re: 50 MOTION for Partial Summary Judgment.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, Part 1, # 5 Exhibit 4, Part 2, # 6 Exhibit 4, Part 3, # 7 Exhibit 5, # 8 Exhibit 6, Part 1, # 9 Exhibit 6, Part 2, # 10 Exhibit 7, Part 1, # 11 Exhibit 7, Part 2, # 12 Exhibit 8, Part 1, # 13 Exhibit 8, Part 2, # 14 Exhibit 8, Part 3, # 15 Exhibit 9, # 16 Exhibit 10, # 17 Exhibit 11, # 18 Exhibit 12, # 19 Exhibit 13, # 20 Exhibit 14, # 21 Exhibit 15, # 22 Exhibit 16, # 23 Exhibit 17, # 24 Exhibit 18, # 25 Exhibit 19, # 26 Exhibit 20, # 27 Exhibit 21, # 28 Exhibit 22, # 29 Exhibit 23, # 30 Exhibit 24, # 31 Exhibit 25, # 32 Exhibit 26, # 33 Exhibit 27, # 34 Exhibit 28, # 35 Exhibit 29, # 36 Exhibit 30, # 37 Exhibit 31, # 38 Exhibit 32, # 39 Exhibit 33, # 40 Exhibit 34, # 41 Exhibit 35, # 42 Exhibit 36, # 43 Exhibit 37, # 44 Exhibit 38, # 45 Exhibit 39, # 46 Exhibit 40, # 47 Exhibit 41, # 48 Exhibit 42, # 49 Exhibit 43, # 50 Exhibit 44, # 51 Exhibit 45, # 52 Exhibit 46, Part 1, # 53 Exhibit 46, Part 2, # 54 Exhibit 46, Part 3, # 55 Exhibit 47, # 56 Exhibit 48, # 57 Exhibit 49, # 58 Exhibit 50, # 59 Exhibit 51, # 60 Exhibit 52, Part 1, # 61 Exhibit 52, Part 2, # 62 Exhibit 53, # 63 Exhibit 54, # 64 Exhibit 55, # 65 Exhibit 56, # 66 Exhibit 57, # 67 Exhibit 58, # 68 Exhibit 59, # 69 Exhibit 60, # 70 Exhibit 61, # 71 Exhibit 62, # 72 Exhibit 63, # 73 Exhibit 64, # 74 Exhibit 65, # 75 Exhibit 66, # 76 Exhibit 67, # 77 Exhibit 68, # 78 Exhibit 69, Part 1, # 79 Exhibit 69, Part 2, # 80 Exhibit 69, Part 3, # 81 Exhibit 70, # 82 Exhibit 71, # 83 Exhibit 72, # 84 Exhibit 73, # 85 Exhibit 74)(Maazel, Ilann) (Entered: 06/03/2014)
88 CALENDAR NOTICE re: 85 LETTER MOTION for Conference of oral argument on partial summary judgment motion addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated 4/10/2014 filed by T.E., A.R. and D.R., 50 MOTION for Partial Summary Judgment filed by Steve Fisch, Philip G. Steinberg, Eric Winter, John Boyle, Pine Bush Central School District Board of Education, Pine Bush Central School District, Aaron Hopmayer. This action has been scheduled for Oral Argument on all pending motions before the Honorable Kenneth M. Karas, United States District Judge, on 7/17/2014 at 10:00 AM in Courtroom 521, 300 Quarropas Street, White Plains, NY 10601 before Judge Kenneth M. Karas. (Signed by Judge Kenneth M. Karas on 6/18/2014) (tro) (Entered: 06/19/2014)
Minute Entry for proceedings held before Judge Kenneth M. Karas: Oral Argument held on 7/17/2014. O. Andrew F. Wilson and Michael Meth for Plaintiffs. Joan Gilbride for Defendants. The Court heard oral argument from the Parties' counsel on Defendants' Motion for Summary Judgment. (Court Reporter Christina Arends−Dieck) (lnl) (Entered: 09/11/2014)

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 17 of 27

07/23/2014 08/01/2014 08/01/2014 10/14/2014 11/04/2014
11/10/2014
11/12/2014 11/13/2014
11/13/2014 11/14/2014 11/14/2014 11/20/2014

89 NOTICE OF CHANGE OF ADDRESS by Ilann M. Maazel on behalf of All Plaintiffs. New Address: Emery Celli Brinckerhoff &Abady LLP, 600 Fifth Avenue, 10th Floor, New York, New York, U.S.A. 10020, 212−763−5000. (Maazel, Ilann) (Entered: 07/23/2014)
90 NOTICE OF CHANGE OF ADDRESS by Zoe Antonia Salzman on behalf of A.R. and D.R., O.C. and D.C, T.E.. New Address: Emery Celli Brinckerhoff &Abady LLP, 600 Fifth Avenue, 10th Floor, New York, NY−New York, 10020, 2127635000. (Salzman, Zoe) (Entered: 08/01/2014)
91 NOTICE OF CHANGE OF ADDRESS by Ogilvie Andrew Fraser Wilson on behalf of A.R. and D.R., O.C. and D.C, T.E.. New Address: Emery Celli Brinckerhoff &Abady LLP, 600 Fifth Avenue, 10th Floor, New York, NY−New York, 10020, 2127635000. (Wilson, Ogilvie) (Entered: 08/01/2014)
92 LETTER addressed to Judge Kenneth M. Karas from Zoe Salzman dated October 14, 2014 re: Subpoena. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Salzman, Zoe) (Entered: 10/14/2014)
93 OPINION AND ORDER: Defendants' Motion for Summary Judgment is granted in part and denied in part. In particular, the Court grants the motion to dismiss Plaintiffs' claims against the individual defendants in their official capacity as redundant with Plaintiffs' claims against the District. The remainder of Defendants' Motion is denied. The Clerk of the Court is respectfully requested to terminate the pending motion. (See Dkt. No. 50.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 11/3/2014) (lnl) (Entered: 11/04/2014)
94 CALENDAR NOTICE: Please take notice that the above captioned matter has been scheduled for a Status Conference before the Honorable Kenneth M. Karas, United States District Judge, on Wednesday, December 3, 2014 at 10:30 a.m. in Courtroom 521, U.S. District Court, 300 Quarropas Street, White Plains, New York 10601. Any scheduling difficulties must be brought to the attention of the Court in writing, at least three business days beforehand. So Ordered. Status Conference set for 12/3/2014 at 10:30 AM in Courtroom 521, 300 Quarropas Street, White Plains, NY 10601 before Judge Kenneth M. Karas. (Signed by Judge Kenneth M. Karas on 11/10/2014) (lnl) (Entered: 11/10/2014)
95 LETTER MOTION to Adjourn Conference addressed to Judge Kenneth M. Karas from Laura Wong−Pan dated November 12, 2014. Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter.(Wong−Pan, Laura) (Entered: 11/12/2014)
96 MEMO ENDORSEMENT on re: 95 LETTER MOTION to Adjourn Conference addressed to Judge Kenneth M. Karas from Laura Wong−Pan dated November 12, 2014. filed by Steve Fisch, Philip G. Steinberg, Eric Winter, Pine Bush Central School District Board of Education, Robert Peters, Pine Bush Central School District. ENDORSEMENT: The December 3 conference is adjourned to December 16, 2014, at 10:00. Counsel may pick up the remaining CD's from plaintiff's counsel. (Signed by Judge Kenneth M. Karas on 11/12/2014) (rj) (Entered: 11/13/2014)
Set/Reset Hearings: Status Conference set for 12/16/2014 at 10:00 AM before Judge Kenneth M. Karas. (rj) (Entered: 11/13/2014)
97 LETTER MOTION to Adjourn Conference addressed to Judge Kenneth M. Karas from O. Andrew F. Wilson dated 11/14/2014. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Wilson, Ogilvie) (Entered: 11/14/2014)
98 MEMO ENDORSED ORDER granting 97 Letter Motion to Adjourn Conference. ENDORSEMENT: Granted. Status Conference set for 12/5/2014 at 12:00 PM before Judge Kenneth M. Karas. (Signed by Judge Kenneth M. Karas on 11/14/2014) (rj) (Entered: 11/14/2014)
99 NOTICE OF APPEARANCE by Daniel Petigrow on behalf of John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Petigrow, Daniel) (Entered: 11/20/2014)

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 18 of 27

11/24/2014 11/24/2014 11/24/2014 11/24/2014 12/03/2014 12/05/2014
12/05/2014
01/16/2015 01/16/2015 01/16/2015 01/30/2015 02/03/2015

100 NOTICE OF INTERLOCUTORY APPEAL from 93 Memorandum &Opinion,,. Document filed by Steve Fisch, Philip G. Steinberg, Eric Winter. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Wong−Pan, Laura) (Entered: 11/24/2014)
Appeal Fee Due: for 100 Notice of Interlocutory Appeal. $505.00 Appeal fee due by 12/8/2014. (nd) (Entered: 11/24/2014)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 100 Notice of Interlocutory Appeal. (nd) (Entered: 11/24/2014)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 100 Notice of Interlocutory Appeal filed by Steve Fisch, Philip G. Steinberg, Eric Winter were transmitted to the U.S. Court of Appeals. (nd) (Entered: 11/24/2014)
USCA Appeal Fees received $505.00 receipt number 4654070010084 on 12/3/2014 re: 100 Notice of Interlocutory Appeal filed by Steve Fisch, Philip G. Steinberg, Eric Winter. (lnl) (Entered: 12/03/2014)
Minute Entry for proceedings held before Judge Kenneth M. Karas: Status Conference held on 12/5/2014. Ilann Maazel, Zoe Salzman, and Michael Meth for Plaintiffs. Joan Gilbride, Maree Sneed, and Laura Wong−Pan for Defendants. Christina Arends−Diack served as court reporter. The Court from the Parties' as to the status of the case pending appeal. The Court set a briefing schedule on Defendants' motion to the stay pending appeal. See Order. (Court Reporter Christina Arends−Dieck) (lnl) (Entered: 12/05/2014)
101 MOTION SCHEDULING ORDER: At the Scheduling Conference held before the Court on December 5, 2014, the Court adopted the following scheduling order: Defendants shall file their motion to stay by no later than January 16, 2015. Plaintiffs shall file opposition papers by no later than January 30, 2015. Defendants shall file their replies in support of their motion by no later than February 13, 2015. Sur−reply papers will not be accepted unless prior permission of the Court is given. Counsel are reminded that there is a strict page limit, which will be extended only in extreme circumstances. Any pending deadlines found in the Federal Rules of Civil Procedure or in any applicable statute are hereby stayed until the date the motions are due. Courtesy copies are to be served upon counsel by the assigned date. One courtesy copy of all papers also shall be sent to the Court at the time they are served upon opposing counsel. If oral argument is requested, it may be scheduled by the Court. Please wait to hear from the Court to schedule argument. SO ORDERED. Motions due by 1/16/2015. Responses due by 1/30/2015. Replies due by 2/13/2015. (Signed by Judge Kenneth M. Karas on 12/5/2014) (lnl) (Entered: 12/08/2014)
102 MOTION to Stay . Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. Return Date set for 2/13/2015 at 11:59 PM.(Wong−Pan, Laura) (Entered: 01/16/2015)
103 DECLARATION of Laura Wong−Pan in Support re: 102 MOTION to Stay .. Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit A)(Wong−Pan, Laura) (Entered: 01/16/2015)
104 MEMORANDUM OF LAW in Support re: 102 MOTION to Stay . . Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Wong−Pan, Laura) (Entered: 01/16/2015)
105 MEMORANDUM OF LAW in Opposition re: 102 MOTION to Stay . . Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Salzman, Zoe) (Entered: 01/30/2015)
106 LETTER addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated February 3, 2015 re: request for telephone conference to set trial date in light of Second Circuit dismissal of the appeal. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Attachments: # 1 Exhibit Second Circuit dismissal of appeal)(Maazel, Ilann) (Entered: 02/03/2015)

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 19 of 27

02/04/2015 02/11/2015 02/13/2015 03/10/2015 03/10/2015
05/01/2015
05/13/2015 05/13/2015

107 MEMO ENDORSEMENT on 106 LETTER addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated February 3, 2015 re: request for telephone conference to set trial date in light of Second Circuit dismissal of the appeal. ENDORSEMENT: The Court will hold a conference on March 3, 2015, at 10:30. In light of the Second Circuit's dismissal of Defendants' partial appeal, the motion to stay is denied as moot. The Clerk is directed to terminate the motion (Doc. #102). So Ordered. (Status Conference set for 3/3/2015 at 10:30 AM before Judge Kenneth M. Karas) (Motions terminated: 102 MOTION to Stay) (Signed by Judge Kenneth M. Karas on 2/4/2015) (lnl) (Entered: 02/04/2015)
108 LETTER MOTION to Adjourn Conference addressed to Judge Kenneth M. Karas from Laura Wong−Pan dated February 11, 2015. Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter.(Wong−Pan, Laura) (Entered: 02/11/2015)
109 MEMO ENDORSEMETN granting 108 LETTER MOTION to Adjourn Conference addressed to Judge Kenneth M. Karas from Laura Wong−Pan dated February 11, 2015. ENDORSEMENT: Granted. The March 3 conference is adjourned to March 10, 2015, at 10:00. So Ordered. Status Conference set for 3/10/2015 at 10:00 AM before Judge Kenneth M. Karas. (Signed by Judge Kenneth M. Karas on 2/13/2015) (lnl) (Entered: 02/13/2015)
Minute Entry for proceedings held before Judge Kenneth M. Karas: Status Conference held on 3/10/2015. Ilann Maazel, Andrew Wilson, and Michael Meth for Plaintiffs. Joan Gilbride and Laura Wong−Pan for Defendants. Plaintiffs are to turn over all relevant medical records by April 10, 2015. The Court set a Trial Scheduling Order. See Order. The Parties estimate that the trial will last approximately 2 weeks. (Court Reporter Albi Gorn) (lnl) (Entered: 03/10/2015)
110 TRIAL SCHEDULING ORDER: At the Conference held before the Court on March 10, 2015, the Court adopted the following scheduling order: Jury selection will begin on July 13, 2015, at 10:00 a.m. During the trial, the Court will sit from 9:30 a.m. until 2:00 p.m., five days a week. The Parties will file a pre−trial order, which will include any motions in limine, requests to charge, and proposed voir dire by May 29, 2015. Responses must be submitted by June 12, 2015. The Parties are to turn over all exhibits and witness lists no later than May 29, 2015. The Final Pre−Trial Conference will be held on June 30, 2015 at 10:00 a.m. SO ORDERED. (Jury Selection set for 7/13/2015 at 10:00AM before Judge Kenneth M. Karas. Pretrial Order due by 5/29/2015. Motions due by 5/29/2015. Responses due by 6/12/2015. Final Pretrial Conference set for 6/30/2015 at 10:00 AM before Judge Kenneth M. Karas.) (Signed by Judge Kenneth M. Karas on 3/10/2015) (lnl) (Entered: 03/10/2015)
111 MANDATE of USCA (Certified Copy) as to 100 Notice of Interlocutory Appeal filed by Steve Fisch, Philip G. Steinberg, Eric Winter. USCA Case Number 14−4373. Appellees move to dismiss the appeal. Upon due consideration, it is hereby ORDERED that Appellees' motion is GRANTED and the appeal is DISMISSED. This Court has determined that it lacks jurisdiction over this appeal because a final order has not been issued by the district court as contemplated by 28 U.S.C. § 1291, see Coopers &Lybrand v. Livesay, 437 U.S. 463, 467 (1978), and the order being appealed does not fall within the collateral order doctrine, see Bolmer v. Oliveira, 594 F.3d 134, 140 (2d Cir. 2010); Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003).Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 05/01/2015. (nd) (Entered: 05/04/2015)
112 LETTER MOTION for Conference addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated May 13, 2015. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Maazel, Ilann) (Entered: 05/13/2015)
113 LETTER addressed to Judge Kenneth M. Karas from Joan M. Gilbride dated May 13, 2015 re: Plaintiffs' counsel's letter dated May 13, 2015. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter.(Gilbride, Joan) (Entered: 05/13/2015)

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 20 of 27

05/13/2015 05/14/2015 05/19/2015
05/19/2015 05/20/2015 05/28/2015 05/29/2015 05/29/2015
05/29/2015 05/29/2015

Minute Entry for proceedings held before Judge Kenneth M. Karas: Telephone Conference held on 5/13/2015. Ilann Maazel, Andrew Wilson, Michael Meth, and Zoe Salzman appeared on behalf of Plaintiffs. Joan Gilbride and Daniel Petigrow appeared on behalf of Defendants. Defendants will draft a letter requesting parental consent before they speak with any students in connection with the lawsuit. Defendants will review the letter with counsel for Plaintiffs before sending it to the relevant parents. (Court Reporter Anglea O'Donnell) (AM) (Entered: 05/13/2015)
114 LETTER addressed to Judge Kenneth M. Karas from O. Andrew F. Wilson dated 5/14/2015 re: Opposition to Defendants' 5/11/2015 Letter Request to "Reopen Discovery". Document filed by A.R. and D.R., O.C. and D.C, T.E..(Wilson, Ogilvie) (Entered: 05/14/2015)
115 CALENDAR NOTICE: Please take notice that the above captioned matter has been scheduled for a Pre−trial Conference before the Honorable Kenneth M. Karas, United States District Judge, on Tuesday, May 26, 2015 at 3:00 p.m. in Courtroom 521, U. S. District Court, 300 Quarropas Street, White Plains, New York 10601. Any scheduling difficulties must be brought to the attention of the Court in writing, at least five business days beforehand. So Ordered. (Pretrial Conference set for 5/26/2015 at 03:00 PM in Courtroom 521, 300 Quarropas Street, White Plains, NY 10601 before Judge Kenneth M. Karas) (Signed by Judge Kenneth M. Karas on 5/19/2015) (lnl) (Entered: 05/19/2015)
116 LETTER MOTION to Adjourn Conference addressed to Judge Kenneth M. Karas from Joan M. Gilbride dated May 19, 2015. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg.(Gilbride, Joan) (Entered: 05/19/2015)
117 MEMO ENDORSEMENT granting 116 LETTER MOTION to Adjourn Conference addressed to Judge Kenneth M. Karas from Joan M. Gilbride dated May 19, 2015. ENDORSEMENT: The May 26 conference is moved to June 2, 2015, at 3 pm. (Pretrial Conference set for 6/2/2015 at 03:00 PM before Judge Kenneth M. Karas) (Signed by Judge Kenneth M. Karas on 5/20/2015) (lnl) (Entered: 05/20/2015)
118 LETTER MOTION to Reopen Case for discovery purposes addressed to Judge Kenneth M. Karas from Joan M. Gilbride dated May 28, 2015. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter.(Gilbride, Joan) (Entered: 05/28/2015)
119 MEMO ENDORSEMENT on 118 LETTER MOTION to Reopen Case for discovery purposes addressed to Judge Kenneth M. Karas from Joan M. Gilbride dated May 28, 2015. ENDORSEMENT: Plaintiffs are to respond to this letter by 5 pm on June 1, 2015. So Ordered. (Signed by Judge Kenneth M. Karas on 5/29/2015) (lnl) (Entered: 05/29/2015)
120 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION for Sanctions for Spoliation of Evidence., MOTION Sanctions for Spoliation of Evidence . Document filed by A.R. and D.R.. (Attachments: # 1 Notice of Motion, # 2 1st Am. Compl. in this Action, # 3 Decl. in Support of Motion, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit)(Kimmel, Adele) Modified on 6/1/2015 (db). (Entered: 05/29/2015)
121 MOTION in Limine . Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. Return Date set for 6/12/2015 at 11:59 PM.(Gilbride, Joan) (Entered: 05/29/2015)
122 MEMORANDUM OF LAW in Support re: 121 MOTION in Limine . . Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Gilbride, Joan) (Entered: 05/29/2015)

Case: 7:12-cv-2303 As of: 03/07/2016 11:28 AM EST 21 of 27

05/29/2015 05/29/2015 05/29/2015
05/29/2015 05/29/2015 05/29/2015 05/29/2015 05/29/2015 05/29/2015 05/29/2015 06/01/2015 06/01/2015

123 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION in Limine . Document filed by A.R. and D.R., O.C. and D.C, T.E. (Salzman, Zoe) Modified on 6/1/2015 (db). (Entered: 05/29/2015)
124 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Zoe Salzman in Support re: 123 MOTION in Limine . Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Salzman, Zoe) Modified on 6/1/2015 (db). (Entered: 05/29/2015)
125 DECLARATION of Joan Gilbride in Support re: 121 MOTION in Limine .. Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit PL−30 redacted, # 2 Exhibit PL−32 redacted, # 3 Exhibit PL−42 redacted, # 4 Exhibit PL−50 redacted, # 5 Exhibit PL−53 redacted, # 6 Exhibit PL−58 redacted, # 7 Exhibit PL−59 part 1, # 8 Exhibit PL−59 part 2, # 9 Exhibit PL−59 part 3, # 10 Exhibit PL−59 part 4, # 11 Exhibit PL−69 redacted, # 12 Exhibit PL−77 redacted, # 13 Exhibit PL−78 redacted, # 14 Exhibit PL−79 redacted, # 15 Exhibit PL−80 redacted, # 16 Exhibit PL−81 redacted, # 17 Exhibit PL−82 redacted, # 18 Exhibit PL−84 redacted, # 19 Exhibit PL−87 redacted, # 20 Exhibit PL−89 redacted, # 21 Exhibit PL−90 redacted, # 22 Exhibit PL−100 redacted, # 23 Exhibit PL−103 redacted, # 24 Exhibit PL−104 redacted, # 25 Exhibit PL−106 part 1, # 26 Exhibit PL−106 part 2, # 27 Exhibit PL−106 part 3, # 28 Exhibit PL−106 part 4, # 29 Exhibit PL−106 part 5, # 30 Exhibit PL−106 part 6, # 31 Exhibit PL−107 part 1, # 32 Exhibit PL−107 part 2, # 33 Exhibit PL−107 part 3, # 34 Exhibit PL−107 part 4, # 35 Exhibit PL−108 part 1, # 36 Exhibit PL−108 part 2, # 37 Exhibit PL−108 part 3, # 38 Exhibit PL−108 part 4, # 39 Exhibit PL−127, # 40 Exhibit PL−135 portion, # 41 Exhibit Deposition excerpts, # 42 Exhibit Deposition excerpts, # 43 Exhibit M. Shucker Affidavit, # 44 Exhibit PL−93, PL−112, PL−113, # 45 Exhibit Misc. PART1, # 46 Exhibit Misc. PART 2, # 47 Exhibit Misc. PART 3, # 48 Exhibit Misc. PART 4, # 49 Exhibit Misc. PART 5)(Gilbride, Joan) (Entered: 05/29/2015)
126 PROPOSED JURY INSTRUCTIONS. Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter.(Gilbride, Joan) (Entered: 05/29/2015)
127 PROPOSED VOIR DIRE QUESTIONS. Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter.(Gilbride, Joan) (Entered: 05/29/2015)
128 JOINT PRETRIAL STATEMENT /Joint Pretrial Order. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Salzman, Zoe) (Entered: 05/29/2015)
129 REQUEST TO CHARGE. Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter.(Gilbride, Joan) (Entered: 05/29/2015)
130 PROPOSED JURY INSTRUCTIONS. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Salzman, Zoe) (Entered: 05/29/2015)
131 PROPOSED VOIR DIRE QUESTIONS. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Salzman, Zoe) (Entered: 05/29/2015)
132 REQUEST TO CHARGE. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Salzman, Zoe) (Entered: 05/29/2015)
133 LETTER MOTION to Adjourn Conference addressed to Judge Kenneth M. Karas from Joan M. Gilbride dated June 1, 2015. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter.(Gilbride, Joan) (Entered: 06/01/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Notice to Attorney Adele Phyllis Kimmel to RE−FILE Document 120 MOTION for Sanctions for Spoliation of Evidence. MOTION Sanctions for Spoliation of Evidence . (1) Use the event type Memorandum in Support of

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Motion found under the event list Replies, Opposition and Supporting Documents. (2) Refile the attached Notice AS THE MOTION for Sanctions. (3) File all other Supporting Documents separately each to receive their own document #. Supporting Documents are found under the Event Type − Replies, Opposition and Supporting Documents. (db) (Entered: 06/01/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Notice to Attorney Zoe Antonia Salzman to RE−FILE Document 123 MOTION in Limine . Use the event type Memorandum in Support of Motion found under the event list Replies, Opposition and Supporting Documents. ***REMINDER*** − Motion WAS NOT FILED. First file Motion, then file and link any supporting documents. (db) (Entered: 06/01/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Zoe Antonia Salzman to RE−FILE Document 124 Declaration in Support of Motion. ERROR(S): Document linked to filing error. (db) (Entered: 06/01/2015)
134 MOTION for Sanctions for Spoliation of Evidence. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Kimmel, Adele) (Entered: 06/01/2015)
135 MEMORANDUM OF LAW in Support re: 134 MOTION for Sanctions for Spoliation of Evidence. . Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Kimmel, Adele) (Entered: 06/01/2015)
136 LETTER RESPONSE in Opposition to Motion addressed to Judge Kenneth M. Karas from Zoe Salzman dated June 1, 2015 re: 118 LETTER MOTION to Reopen Case for discovery purposes addressed to Judge Kenneth M. Karas from Joan M. Gilbride dated May 28, 2015. . Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Salzman, Zoe) (Entered: 06/01/2015)
137 DECLARATION of Adele Kimmel in Support re: 134 MOTION for Sanctions for Spoliation of Evidence.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Attachments: # 1 Copy of Complaint per Judge's Rules, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit)(Kimmel, Adele) (Entered: 06/01/2015)
138 MOTION in Limine . Document filed by A.R. and D.R., O.C. and D.C, T.E..(Salzman, Zoe) (Entered: 06/01/2015)
139 MEMORANDUM OF LAW in Support re: 138 MOTION in Limine . . Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Salzman, Zoe) (Entered: 06/01/2015)
140 DECLARATION of Zoe Salzman in Support re: 138 MOTION in Limine .. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Salzman, Zoe) (Entered: 06/01/2015)
141 MEMO ENDORSEMENT denying 133 LETTER MOTION to Adjourn Conference addressed to Judge Kenneth M. Karas from Joan M. Gilbride dated June 1, 2015. ENDORSEMENT: Applications are denied. The issues to be discussed at the June 2 conference should be resolved as quickly as possible, otherwise the trial date might slip. So Ordered. (Signed by Judge Kenneth M. Karas on 6/1/2015) (lnl) (Entered: 06/02/2015)
Minute Entry for proceedings held before Judge Kenneth M. Karas: Interim Pretrial Conference held on 6/2/2015. Ilann Maazel, Andrew Wilson, and Zoe Salzman appeared for Plaintiffs. Joan Gilbride and Daniel Petigrow appeared on behalf of Defendants. The Court granted in part and denied in part Defendants' Motion to reopen discovery for the reasons stated on the record. Defendants are to provide Plaintiffs with the name of the five individuals to be deposed by end of business day on June 4, 2015. The next conference is scheduled on June 10, 2015 at 3:45pm. (Court Reporter Albi Gorn) (AM) (Entered: 06/02/2015)
142 ORDER granting in part and denying in part 118 LETTER MOTION to Reopen Case for discovery purposes: the Conference held before the Court on June 2, 2015, the Court granted in part and denied in part Defendants' request to reopen

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discovery for the reasons stated on the record. The Clerk of the Court is respectfully requested to terminate the pending Motion. (See Dkt. Nos. 114, 118.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 6/3/2015) (lnl) (Entered: 06/03/2015)
143 MEMORANDUM OF LAW in Opposition re: 134 MOTION for Sanctions for Spoliation of Evidence. . Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Gilbride, Joan) (Entered: 06/09/2015)
144 DECLARATION of Joan Gilbride in Opposition re: 134 MOTION for Sanctions for Spoliation of Evidence.. Document filed by Steve Fisch, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Attachments: # 1 Exhibit Deposition Transcript, # 2 Exhibit Deposition Transcript, # 3 Exhibit Deposition Transcript, # 4 Exhibit DIsciplinary Referral, # 5 Exhibit Deposition Transcript, # 6 Exhibit Disciplinary Referral, # 7 Exhibit Deposition Transcript, # 8 Exhibit Deposition Transcript, # 9 Exhibit Disciplinary Referrals, # 10 Exhibit Deposition Transcript, # 11 Exhibit Deposition Transcript, # 12 Exhibit Deposition Transcript, # 13 Exhibit VADIR Overview, # 14 Exhibit NYSED Schedule, # 15 Exhibit VADIR Q# 16 Exhibit CRDC Overview, # 17 Exhibit CRDC Survey 2009−10, # 18 Exhibit CRDC Data Notes)(Gilbride, Joan) (Entered: 06/09/2015)
145 FIRST LETTER MOTION to Adjourn Conference scheduled for June 10, 2015 addressed to Judge Kenneth M. Karas from Ilann Maazel on behalf of all parties dated June 9, 2015. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Maazel, Ilann) (Entered: 06/09/2015)
146 MEMO ENDORSEMENT granting 145 FIRST LETTER MOTION to Adjourn Conference scheduled for June 10, 2015 addressed to Judge Kenneth M. Karas from Ilann Maazel on behalf of all parties dated June 9, 2015. ENDORSEMENT: All requests are granted. So Ordered. (Deadlines Terminated) (Brief in Opposition due by 6/19/2015) (Signed by Judge Kenneth M. Karas on 6/10/2015) (lnl) (Entered: 06/10/2015)
Set/Reset Deadlines: Brief in Opposition due by 6/19/2015. (lnl) (Entered: 06/10/2015)
147 LETTER addressed to Judge Kenneth M. Karas from Ilann Maazel dated June 15, 2015 re: Settlement agreement. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Maazel, Ilann) (Entered: 06/15/2015)
148 MEMO ENDORSEMENT on 147 LETTER addressed to Judge Kenneth M. Karas from Ilann Maazel dated June 15, 2015 re: Settlement agreement. ENDORSEMENT: The infant compromise hearing will go forward at 9:30 am on June 30, 2015. So Ordered. (Infant Compromise Hearing set for 6/30/2015 at 09:30 AM before Judge Kenneth M. Karas) (Signed by Judge Kenneth M. Karas on 6/16/2015) (lnl) (Entered: 06/16/2015)
149 LETTER addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated June 29, 2015 re: Settlement and Infant Compromise. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Attachments: # 1 Affidavit Declaration of Ilann M. Maazel in Support of Settlement and Infant Compromise, # 2 Exhibit Exhibit A: Settlement Agreement, # 3 Exhibit Exhibit B: Proposed Order, # 4 Exhibit Exhibit C: Board of Education Minutes, # 5 Exhibit Exhibit D: Summary of Costs, # 6 Affidavit Declaration of S.E., # 7 Exhibit Exhibit A to Declaration of S.E., # 8 Affidavit Declaration of D.C., # 9 Exhibit Exhibit A to Declaration of D.C.)(Maazel, Ilann) (Entered: 06/29/2015)
150 ORDER: In light of Plaintiffs' 205−page submission filed today, June 29, 2015, (see Dkt. No. 149), the hearing scheduled for tomorrow, June 30, 2015, is hereby rescheduled for July 9, 2015 at 3:30p.m. SO ORDERED. (Signed by Judge Kenneth M. Karas on 6/29/2015) (mml) (Entered: 06/29/2015)
151 ORDER: On June 29, 2015, Plaintiffs submitted a letter from Ilann M. Maazel to the Court concerning the Settlement Agreement and the infant compromise hearing, now scheduled for July 9, 2015. (Dkt. No. 149.) Attached to the letter,

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Plaintiffs submitted a Declaration of Ilann M. Maazel, a copy of the Settlement Agreement, a proposed order approving the Settlement Agreement, the minutes of the Pine Bush Central School District Board for June 9, 2015, a summary of costs incurred by Plaintiffs in this case, an Affidavit Declaration of S.E. and an accompanying exhibit, and an Affidavit Declaration of D.C. and an accompanying exhibit. (Id.) "Under Rule 83.2(a)(l) of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, [a]n action by or on behalf of an infant or incompetent shall not be settled or compromised, or voluntarily discontinued, dismissed or terminated, without leave of the Court embodied in an order, judgment or decree.'" Camac v. Long Beach City Sch. Dist., No. 09−CV−5309, 2013 WL 991355, at *2 (E.D.N.Y. Mar. 13, 2013) (quoting Local Civ. R. 83.2(a)(l)). In particular, "[i]n this judicial district, a proposed settlement involving a claim made by an infant must be reviewed by a judicial officer, who must determine whether: (1) the best interests of the infant are protected by the terms and conditions of the proposed settlement; and (2) the proposed settlement, including any legal fees and expenses to be paid, as part of the proposal, are fair and reasonable." Martegani v. Cirrus Design Corp., 687 F. Supp. 2d 373, 377 (S.D.N.Y. 2010); see also Mateo v. United States, No. 06−CV−2647, 2008 WL 3166974, at *2 (S.D.N.Y. Aug. 6, 2008) (same). "[A] strong presumption exists that a settlement is fair and reasonable where (i) the settlement is not collusive but was reached after arm's length negotiation; (ii) the proponents have counsel experienced in similar cases; and (iii) there has been sufficient discovery to enable counsel to act intelligently." Camac, 2013 WL 991355, at *2 (alterations and internal quotation marks omitted). "An attorney for a minor child must establish that a proposed settlement for the minor is fair and reasonable, and that includes, necessarily, any proposed attorney compensation." Martegani, 687 F. Supp. 2d at 378 (citing N.Y. C.P.L.R. § 1208(b); N.Y. Jud. Law§ 474). "The burden is on counsel to keep and present records from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required; where adequate contemporaneous records have not been kept the court should not award the full amount requested." Id. (alteration and internal quotation marks omitted). This is so even where the guardian of a child has entered into a contingency fee agreement. See id.; see also Johnson v. City of New York, No. 08−CV−3673, 2010 WL 5818290, at *4 (E.D.N.Y. Dec. 13, 2010) (explaining that "[t]he Court must ensure that the allocation of attorney's fees from the settlement proceeds represents suitable compensation for the attorney for his services, notwithstanding contingency agreements with a party" (quoting N.Y. Jud. Law § 474)). "[T]o determine whether a proposed attorney fee is reasonable, a court should evaluate what a reasonable paying client would be willing to pay for the legal services, in other words, the appropriate market rate for counsel over the course of the number of hours appropriately worked." Martegani, 687 F. Supp. 2d at 378. Indeed, "the United States Supreme Court has stated that 'the party seeking an award of fees should submit evidence supporting the hours worked and the rates claimed."' Id. (quoting Hensley v. Eckerhart, 461 U.S. 424,433 (1983) (alterations omitted)). Moreover, in the context of an infant compromise hearing, "[w]hen multiple attorneys are involved in [an inquiry into whether fees are fair and reasonable], fee splitting agreements offer no more than non−mandatory guidance because the court is under a duty to evaluate the quantity and quality of the representation by each attorney in order to ensure that the fees are appropriate." Wagner &Wagner. LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd &Carwile, P.C., 596 F.3d 84, 90 (2d Cir. 2010). Accordingly, it is appropriate for the Court to "inquire as to the roles played and services provided by each firm."Id. Finally, "[a] party's request for costs is generally governed by Local Civil Rule 54.1," which requires, among other things, that "the party must include as part of the request an affidavit that the costs claimed are allowable by law, are correctly stated and were necessarily incurred"' and "[b]ills for the costs claimed must be attached as exhibits." D.J. ex. rel. Roberts v. City of New York, No. 11−CV−5458, 2012 WL 5431034, at *9 (S.D.N.Y. Oct. 16, 2012) (quoting Local Civ. R. 54.1)). In light of these considerations, Plaintiffs are to supplement the record by providing the Court with the following information: (1) the experience of each law firm and/or lawyer in representing plaintiffs in similar cases; (2) evidence supporting the hours that each attorney and/or law firm worked and the rates that they claim; (3) a copy of the retainer agreement between Plaintiffs and counsel (see Decl. of Ilann M. Maazel in Support of Proposed Order of Compromise ("Maazel

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Decl.") paragraph 23 (Dkt. No. 149−1).); (4) a copy of the co−counsel agreement (see id. paragraph 28 n.1); and (5) a request for costs in accordance with the requirements of Local Civil Rule 54.1, by no later than July 7, 2015. SO ORDERED. (Signed by Judge Kenneth M. Karas on 7/6/2015) (lnl) (Entered: 07/07/2015)
152 LETTER MOTION for Extension of Time until July 8, 2015 addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated July 7, 2015. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Maazel, Ilann) (Entered: 07/07/2015)
153 MEMO ENDORSEMENT granting 152 LETTER MOTION for Extension of Time until July 8, 2015 addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated July 7, 2015. ENDORSEMENT: Granted. So Ordered. (Signed by Judge Kenneth M. Karas on 7/7/2015) (lnl) (Entered: 07/08/2015)
154 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − LETTER MOTION for Conference in further support of Infant Compromise Order addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated July 8, 2015. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Maazel, Ilann) Modified on 7/9/2015 (db). (Entered: 07/08/2015)
155 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − DECLARATION of Ilann M. Maazel in Support re: 154 LETTER MOTION for Conference in further support of Infant Compromise Order addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated July 8, 2015.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Attachments: # 1 Exhibit ECBA Time Records, # 2 Exhibit Retainer Agreement, # 3 Exhibit Co−Counsel Agreement, # 4 Exhibit Biography of Ilann M. Maazel, # 5 Exhibit Biography of Andrew Wilson, # 6 Exhibit Biography of Zoe Salzman)(Maazel, Ilann) Modified on 7/9/2015 (db). (Entered: 07/08/2015)
156 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − DECLARATION of Sherri Eccleston in Support re: 154 LETTER MOTION for Conference in further support of Infant Compromise Order addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated July 8, 2015.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) Modified on 7/9/2015 (db). (Entered: 07/08/2015)
157 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − DECLARATION of David Cohen in Support re: 154 LETTER MOTION for Conference in further support of Infant Compromise Order addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated July 8, 2015.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) Modified on 7/9/2015 (db). (Entered: 07/08/2015)
158 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − DECLARATION of Adele P. Kimmel in Support re: 154 LETTER MOTION for Conference in further support of Infant Compromise Order addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated July 8, 2015.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) Modified on 7/9/2015 (db). (Entered: 07/08/2015)
159 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − DECLARATION of Michael D. Meth in Support re: 154 LETTER MOTION for Conference in further support of Infant Compromise Order addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated July 8, 2015.. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) Modified on 7/9/2015 (db). (Entered: 07/08/2015)
160 DECLARATION of Joan M. Gilbride in Support. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter. (Gilbride, Joan) Modified on 7/9/2015 (db). (Entered: 07/08/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Notice to Attorney Ilann M. Maazel to RE−FILE Document 154 LETTER MOTION for Conference in further support of Infant Compromise

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Order addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated July 8, 2015. Use the event type Letter found under the event list Other Documents. (db) (Entered: 07/09/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Notice to Attorney Ilann M. Maazel to RE−FILE Document 159 Declaration in Support of Motion, 156 Declaration in Support of Motion, 158 Declaration in Support of Motion, 157 Declaration in Support of Motion, 155 Declaration in Support of Motion. Use the event type Declaration in Support (non−motion) found under the event list Other Answers. (db) (Entered: 07/09/2015)
161 LETTER addressed to Judge Kenneth M. Karas from Ilann M. Maazel dated July 8, 2015 re: Ilann M. Maazel's Letter to Judge Karas in Response to Your Honor's Order, dkt. #151. Document filed by A.R. and D.R., O.C. and D.C, T.E..(Maazel, Ilann) (Entered: 07/09/2015)
162 LETTER addressed to Judge Kenneth M. Karas from Joan M. Gilbride dated July 8. 2015 re: support of settlement agreement and infant's compromise order. Document filed by John Boyle, Steve Fisch, Aaron Hopmayer, Robert Peters, Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter.(Gilbride, Joan) (Entered: 07/09/2015)
163 DECLARATION of Ilann M. Maazel in Support. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Attachments: # 1 Exhibit ECBA Time Records, # 2 Exhibit Retainer Agreement, # 3 Exhibit Co−Counsel Agreement, # 4 Exhibit Biography of Ilann M. Maazel, # 5 Exhibit Biography of Andrew Wilson, # 6 Exhibit Biography of Zoe Salzman)(Maazel, Ilann) (Entered: 07/09/2015)
164 DECLARATION of Sherri Eccleston in Support. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) (Entered: 07/09/2015)
165 DECLARATION of David Cohen in Support. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) (Entered: 07/09/2015)
166 DECLARATION of Adele P. Kimmel in Support. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) (Entered: 07/09/2015)
167 DECLARATION of Michael D. Meth in Support. Document filed by A.R. and D.R., O.C. and D.C, T.E.. (Maazel, Ilann) (Entered: 07/09/2015)
Minute Entry for proceedings held before Judge Kenneth M. Karas: Infant Compromise Hearing held on 7/9/2015. Ilann Maazel and Michael Meth appeared on behalf of Plaintiffs. Joan Gilbride and Daniel Petigrow appeared on behalf of Defendants. The Court approved the Settlement for the reasons stated on the record. See Order. (Court Reporter Angela O'Donnell) (AM) (Entered: 07/09/2015)
168 ORDER: NOW, THEREFORE, IT IS HEREBY ORDERED, as follows: 1. The Settlement and General Release, attached as Exhibit A to the Declaration of Ilann M. Maazel dated June 29, 2015, is approved. 2. The proposed trusts for the infant Plaintiffs T.E. and O.C. are approved. 3. Attorneys' fees of $1,493,333 and disbursements of $77,648 are approved, which together amount to a total payment of $1,570,981 to Plaintiffs' counsel. The Clerk of the Court is respectfully directed to close this case. The Court will retain jurisdiction as per the terms of the Settlement Agreement. SO ORDERED. (Signed by Judge Kenneth M. Karas on 7/10/2015) (lnl) (Entered: 07/10/2015)
169 TRANSCRIPT of Proceedings re: conference held on 9/10/2013 before Judge Kenneth M. Karas. Court Reporter/Transcriber: Mary Staten, (914) 390−4027. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/29/2016. Redacted Transcript Deadline set for 2/8/2016. Release of Transcript Restriction set for 4/7/2016.(Staten, Mary) (Entered: 01/05/2016)
170 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 09/10/2013 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have

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seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Staten, Mary) (Entered: 01/05/2016)