On July 30, 2018, New York Federal Judge Nicholas Garaufis approved the settlement of a class action against New York City's Department of Education for its systemic failure to address bullying. In this case, the plaintiffs consisted of 23 public school students alleged that although the Dept. of Education had regulations in place designed to help them handle violence and other forms of bullying at school, New York City's public schools routinely failed to abide by their own regulations, rendering it all but impossible for these students to have their concerns addressed meaningfully.

What the Plaintiffs' Claims Centered On

More specifically, the complaint focused on three (3) central problems faced by the public school students with regard to the ongoing bullying:

(1) parents' inability to file complaints (and the DOE's inability to properly document and track those complaints);

(2) the DOE's failure to investigate complaints; and, 

(3) the DOE's failure to remediate substantiated cases.

How the Department of Education's (Alleged) Failures Touched on Both Federal & New York State Law

The Court noted that the issues presented in this case dealt with the following statutes and regulations:

  • No Child Left Behind Act -  Under this law, schools systems must enable its students to leave those schools that are unsafe. 
  • Individuals with Disabilities Education Act -  Bullying can, in some circumstances, act to deprive disabled students of the free and adequate public education to which they are entitled by law.
  •  Dignity for All Students Act ("DASA") [N.Y. Educ. Law §§ 10-18] -  In prohibiting bullying and harassment, DASA requires school districts to, among other things, (1) adopt codes of conduct and put in place systems for identifying and remediating bullying; (2) investigate all reported acts of in-school violence; and (3) prevent retaliation against those who report those incidents. In response to this statute, the Chancellor adopted the following regulations:
    • Regulation A-832 - prohibits bullying and harassment and establishes a mandatory reporting system for incidents of bullying;
    • Regulation A-420 - prohibits the use of corporal punishment by DOE staff; 
    • Regulation A-421 - concerns "verbal abuse" of students by teachers and other DOE personnel; and,
    • Regulation A-449 - addresses "safety transfers," by which a parent may choose to transfer a student to a different school if the student is a victim of a violent criminal offense on school property or if it is determined that the student's presence at the school is unsafe for him or her.

Highlights of the Settlement Terms

  • DOE Agrees to Revise Regulation A-832: This is to include an electronic reporting system to enable parents to report bullying electronically, will automatically generate an electronic receipt and tracking number for each complaint, and allow parents to leam when their complaints have been substantiated or resolved. 
  • Timing for Conclusion of Investigations Into Bullying Principals must complete investigations of all bullying complaints within ten school days, except when there are "Extenuating Circumstances." 
  • Approving School Transfers:  DOE must approve any school-transfer request made by a parent whose child was the victim of a Material Incident, except in situations where the bully is another student who (for whatever reason) will no longer attend the victim's school.

Takeaways from the Class Settlement

My initial reaction to this settlement is that some of the provisions are rather promising for families of students that have been subjected to repeated bullying at a particular public school, because the schools now have a Federal Court Order directing them to approve the transfer of those students to other schools, rather than holding up the process.

On the other hand, I am concerned that there is no ready mechanism that penalizes the schools if they fail to comply, other than having to pay the plaintiffs' attorneys additional legal fees, and perhaps some sanctions. And, given the schools' failures to implement its own Chancellor's regulations and abide by DASA in the past, I am not optimistic that this settlement will markedly change their behavior, because it's the same people who failed the first time that will be charged with getting it right the second time.

Finally, I am also concerned that the Department of Education will use these new, expanded procedures to help it "paper over" legitimate bullying problems and complaints, and thereby perhaps worsen the problem beyond its current ambit.

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