Friday, June 26, 2009

Court Reconsiders Severity of Single-Incident Harassment

Rarely do courts grants motions to reconsider prior rulings, but a federal judge in New York did so this week in the context of a peer harassment case. CG was a special needs student at a public junior high school in New York City. During computer class, she was assaulted by two male students, one who grabbed her breasts from behind and another pulled her pants down and touched her buttocks. The teacher, Mr. Raskin, was present in the classroom, but was ostensibly helping students at the front of the room during this incident, which took place at the back of the classroom. CG called out for help, but did not call to Mr. Raskin in particular. Eventually her friend pushed through the crowd of students who had gathered around and pulled the boys off of her. CG's friend reported the incident and the boys were suspended and then transferred out of school.

CG's guardian sued the City on her behalf, claiming that the school was liable Mr. Raskin's failure to intercede and stop the assault as it was happening. Last month, however, the judge dismissed this claim. He agreed that the a jury could find that he was aware of the situation and that his failure to act amounted to deliberate indifference, he held that it did not constitute "severe and pervasive" harassment because it only happened one time. In response to the plaintiff's motion to reconsider, however, the judge admitted that he overlooked cases judicial decisions -- as well as topical Department of Education guidance -- holding that a single incident of harassment may render a school district liable if it is "serious enough to have the systemic effect of denying the victim equal access to an educational program or activity." In other words, "severe and pervasive" goes to the effect that the harassment could reasonably be expected to have on the victim. It does not refer to the pattern of the harassing conduct itself. The "deliberate indifferent" element already takes that into account; where a teacher's failure to intercede in an ongoing assault could amount to indifferent, failure to intercede in namecalling may not unless/until that namecalling becomes a pattern.

Applying this standard, the judge reasoned that a jury could find that the assault on CG was serious and caused her emotional harm that impaired her access to education. This is a sensible result, in my view. The court was right to recognize that sexual harassment comes in many forms, and that the courts' concern about making schools liable for single incidents of harassment arises in the context of schoolyard taunts and teasing -- concerns not applicable when the manner of harassment is assault.

Decision is: TZ v. City of New York, 2009 WL 1794702 (E.D.N.Y., June 23, 2009).