Clearly, not all instances of fellow students teasing a child warrants legal action. As a corollary to that rule, there are many instances where you, as a parent, might want to bring some sort of legal action against the school based on the school's failure to prevent harassment or bullying. The question then becomes, at what point can you have a viable legal action against the school under New York law for the continued harassment (assuming there is no significant physical injury) of the student?

Fortunately, New York's courts have provided relatively clear guidance on the subject, stating:

"A hostile education environment, based upon student-on-student racial harassment can give rise to liability on the part of teachers, administrators, and boards of education if their deliberate indifference to racial harassment can be interpreted as discriminatory. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 140-41 (2d Cir.1999). Deliberate indifference to discrimination can be shown from a defendants' actions or inaction in light of known circumstances. Id. The deliberate indifference, "must, at a minimum, cause the student to undergo harassment or make the student vulnerable to it". Davis, 526 U.S. at 645.

A plaintiff must establish that the defendants' actions were so clearly unreasonable that a fact finder could draw the inference that the defendants wanted the discrimination to continue. See Gant, 195 F.3d at 140. To prove deliberate indifference under Title VI, "the plaintiff must set forth facts demonstrating that the school: (1) had actual knowledge of, and (2) was deliberately indifferent to (3) harassment that was so severe, pervasive and objectively offensive that it (4) deprived the victim of access to the educational benefits or opportunities provided by the school." Monroe Woodbury Cent. Sch. Dist., 2012 WL 4477552, at *14 (citations omitted).

Importantly, in order to be actionable, the harassment must be "so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school". Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999); see also Barmore v. Aidala, 2006 WL 1978449, at *7 (N.D.N.Y. 2006).

From the above, and as you might well (and should) surmise, this standard is far stricter than mere negligence, and the school's determinations as to what discipline should be meted out to the offending student(s), if any, will generally be given great deference. Consequently, these cases are particularly tough to win.

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