Oftentimes, when a child is suffering as a victim of harassment or bullying at school, a parent’s automatic reaction is to attack and seek legal ramifications when possible. However, it is not a simple task to sue a school district for bullying or harassment as each case differs based on the facts and circumstances. Moreover, there are time sensitive and specific procedures to follow when suing a public entity that the average person is not aware of.
Sometimes, the best outcome for your child may be to work with the school to remedy the situation first and use legal ramifications as a last resort. Below are a couple options available when dealing with school bullying, harassment, or discrimination.
What is the Dignity for All Students Act (DASA)?
The Dignity for All Students Act is a state law commonly known as DASA that was created to “afford all students in public schools an environment free of discrimination and harassment,” (Ed Law § 12) “through the appropriate training of personnel, mandatory instruction for students on civility and tolerance, and reporting requirements” (Ed Law § 13). See, DASA.
DASA also prohibits the school from subjecting students or applicants to harassment, bullying or discrimination based on a student or applicant’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function. (Ed Law § 12) AA v. Hammondsport Cent. Sch. Dist., 527 F. Supp. 3d 501, 513 (W.D.N.Y. 2021).
Unfortunately, there is no private right of action to sue a school district for violating DASA or to sue under its parallel statute under N.Y. Educ. Law § 3201-a for sexual harassment. See, T.J. ex rel. B.W. v. Bd. of Educ., 2019 U.S. Dist. LEXIS 171583 at *65-*66 (S.D.N.Y. 2019) (no private right of action under N.Y. Educ. Law § 3201-a); Terrill v. Windham-Ashland-Jewett Cent. Sch. Dist., 176 F. Supp. 3d 101, 108 (N.D.N.Y. 2016) (DASA does not create a private right of action); Benacquista v. Spratt, 217 F. Supp. 3d 588, 603 (N.D.N.Y. 2016) (same); C.T., 201 F. Supp. 3d 307 at 327 (same).
Recent cases showed that there was no legislative intent to allow parents to sue the schools through DASA. Instead, DASA was intended solely to implement policies and procedures at schools to prevent bullying and harassment. This does not mean that there are no ramifications against schools who ignore DASA complaints. Schools tend to take DASA complaints very seriously, but it is important to draft such complaints in writing to create a paper trail for evidence purposes.
- The Appeals Process Through DASA
Your child’s school district should have a procedure for you to follow when reporting bullying, harassment, or discrimination. Such procedures differ by district but are typically posted on the district website. If you complete a DASA complaint form, follow the proper procedure, but receive no corrective action, then you may need to file an Appeal to the NYS Commissioner of Education under Education Law § 310 within 30 days of the decision or action complained of as the final step in the process. See, Education Law Section 310.
Human Rights Law Amendments Allows Students to Sue Schools
Due to some recent amendments to the New York Human Rights Law, students now have a legal course of action that allows them to sue a school district or the Boards of Cooperative Educational Services (BOCES) response to allegations of harassment through the New York State Division of Human Rights. The New York Human Rights Law was amended a few years ago to include discrimination, retaliation, and harassment claims filed by students against a public school district and BOCES.
The amended Human Rights Law prohibits educational institutions from discriminating against, or permitting the harassment of any student or applicant, “by reason of race, color, religion, disability, national origin, sexual orientation, military status, sex, age, or marital status.” Educational institution is defined to include “any public school, including any school district, board of cooperative educational services, public college, or public university.” (Executive Law § 290 et seq.).
- What Educational Institutions can be Sued under the Human Rights Law?
Previously, students could only bring discrimination and harassment claims against private not-for-profit educational institutions. The list is now extended to cover educational institutions such as:
- Public school districts (pre-kindergarten through high school, and continuing education)
- Charter schools
- Boards of Cooperative Educational Services (BOCES)
- Public colleges and universities
- Universal Pre-K, Head Start or other publicly funded pre-kindergarten programs
- Private schools at all education levels (excluding those which are by a religious organization)
- For-profit non-sectarian colleges, universities, licensed career schools, or certified English as a
- second language schools
Why are the Amendments to the Human Rights Law Important?
Since students and parents cannot sue for damages under DASA, the amendment to the New York Human Rights Law is a significant development in Education Law since it allows for damages for valid claims of bullying, harassment, and discrimination.
If you or your child are discriminated against at one of the educational institutions described above, then you may file a complaint with the New York State Division of Human Rights within one year of the alleged discriminatory act. For more information on how to file a complaint, See: DHR Complaint Process.
Although you do not need an attorney to file a DASA form or complaint with the Division of Human Rights, you may want to discuss your case with a school attorney at the initial stage in order to determine the best course of action to take.
This article is intended for general information and educational purposes only and should not be considered legal advice or counsel. No attorney-client relationship is created by the distribution of this article. The substance of this article is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2022 Law Office of Regina Sarkis, PLLC.