The Usual Manner of Recovering Damages for Bullying Under New York Law

At the outset, it's important to emphasize that the primary means of winning a lawsuit against a school or school district - at least in New York - is under a common-law negligence theory, i.e., that the school acted negligently in failing to address and remedy the ongoing bullying in a timely and appropriate manner, and as a result, the student was harmed.

The (Rare) Times When You Can Recover Damages Pursuant to Statute

As noted in "One Way to Recover Damages for Bullying at School Under New York Law," there are certain laws on the books that will allow students, under certain limited circumstances, to recover damages they sustain as the result of bullying that go beyond those afforded by New York's common (i.e., non-statutory) law.

The primary option here is if the civil rights of the student who is being bullied have been violated. Typically, that means that the student must be the subject of harassment that revolves around his race, religion or sexual orientation.

In order to lend greater clarity to the issue, here is what the Second Circuit Court of Appeals held that a plaintiff must prove in order to prevail on such a claim:

"[T]o succeed on a §1983 equal protection claim of deliberate indifference to student-on-student racial harassment, well established law requires a plaintiff to prove (1) that the child in question was in fact harassed by other students based on his race; (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. In identifying these elements, Gant emphasized that deliberate indifference is not a mere reasonableness standard that transforms every school disciplinary decision into a jury question. Rather, consistent with the well-established requirement that an equal protection violation be intentional or purposive, the Gant 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."

A word of caution is in order, however: these are not easy claims to prove.

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