Just over a year ago, I wrote about whether a school can be held liable for bullying under New York law. At the time, I  noted my skepticism about the prospects of success for a bullying claim that was predicated on a violation of the victim's constitutional rights. And now, in last week's New York Law Journal, Illann Maazel, Esq. published an excellent article discussing that particular issue in depth.

In his article entitled Bullying, Schools and the Constitution, Maazel notes that the Due Process Clause actually affords very little, if any, protection to victims of bullying. Indeed, one Supreme Court justice has stated that "[I]t is perhaps odd that the state's in loco parentis role permits schools to restrain the constitutional rights of children in the name of safety, without imposing any minimal constitutional duty to keep students safe."

In fact, Maazel asserts, "In many circuits, it is apparently constitutionally permissible for a public school teacher to do nothing while a child is beaten in class by another student on a daily basis, at least so long as the bullying is not motivated by race or another specific category strictly scrutinized under the Equal Protection Clause."

That is scary indeed.

Presently, the following appears to be the law in the Second Circuit (where New York is located): unless the victim is subjected to harrassment due to his or her belonging to a constitutionally protected class, such as race, these claims will fail.  The challenges to such a claim don't even end there; the plaintiff will have to show that

"[T]he defendant's indifference was such that the defendant intended the discrimination to occur…. [D]eliberate indifference can be found when the defendant's response to known discrimination is clearly unreasonable in light of the known circumstances." Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 140-41 (2d Cir. 1999).

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