This story is extremely disturbing.

Earlier today, it was reported that in upstate New York, the parents of a six year-old boy with Down Syndrome filed a Notice of Claim against their school district after they learned that their son had been slapped repeatedly by a teacher's aide. (For the uninitiated, before you are allowed to file formal suit (or, in legalese, as a "condition precedent to filing suit") against a school district, a Notice of Claim setting forth the particulars of the claim must, as a general rule, be served upon the school district within 90 days of the occurrence, in accordance with NY Gen. Mun. Law §50-e).

According to the papers filed by the child's parents, the aide, while trying to discipline this child, told a security officer:

“Slap him. That’s what I do.”

The Parents Complain; The School's Response

The day after the parents learned about this - apparently from people who work at the school rather than from the school itself - they requested a meeting at which they were told by the school administration,  "[T]he situation ha[s] been addressed.”

The child's father was left with the following question, however:

“How is it being addressed when the teacher’s aide is still in the classroom with my son?”

The Primary Challenge Posed By This Case

Assuming the truth of the parents' claims, I don't think anyone can credibly argue that the aide's behavior, or the school's response for that matter, is even remotely appropriate. But the child switched out to a different school, and, thankfully, is apparently doing well. That leaves us with a particularly vexing problem:

On the one hand, had the parents not filed the Notice of Claim, it seems fairly unlikely that the school would have done the right thing and effectuated the transfer of this child. Moreover, it appears that the threat of legal action is what was needed to spur the school to transfer that teacher's aide to a different school (which, of course, raises another question: Why on earth would you want such a teacher around any children whatsoever - regardless of their age?).

On the other hand, it also seems rather clear that any damage that may have been sustained by this child as a direct result of the abuse that occurred in this instance is extremely mild and limited in time. Under the circumstances, it does not appear to be a financially viable lawsuit.

In short, while cases like this seem important, and unfortuantely necessary, in order to assure that schools do what they're supposed to do in terms of protecting students from abusive faculty, these cases are also rarely brought because they are simply not cost-effective.


Jonathan Cooper
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Non-Compete, Trade Secret, Unfair Competition and School Negligence Lawyer
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