In the case Doe v. New York City Department of Education, twenty-three public school students brought claims against the New York City Department of Education for its alleged failure to prevent or adequately address bullying. The plaintiffs claimed that, in doing so, the DOE violated their rights to procedural due process, substantive due process, equal protection rights, and the Individuals with Disabilities in Education Act. While the plaintiffs in this case sought only declaratory and injunctive (not monetary) relief, the terms of the settlement could provide fader for the plaintiff’s bar in its pursuit of negligent supervision claims.

In particular, according to the terms of the settlement, the DOE is required to: (1) introduce an electronic reporting system allowing parents to report bullying electronically; (2) direct school staff members who witness bullying to report the incident to the principal within one day; (3) require principals to log complaints of bullying in electronic databases; (4) mandate schools to include anti-bullying techniques in their annual training sessions for teachers and staff; (5) investigate complaints of bullying within ten days (except in extenuating circumstances); and, (6) approve requests for school-transfer made by a parent whose child was the victim of a Material Incident.

As argued by the Legal Aid Society in their amicus papers (and freely admitted by Judge Garaufis in his Decision), these measures do nothing to address the root cause of bullying. Rather, they dictate what school staff must do once bullying has already occurred. The heightened documentation requirements will make it easier for the plaintiff’s bar to bring such negligent supervision claims as they create more opportunity for concretely establishing notice, not to mention the occurrence itself. While the settlement shields the DOE from “systemic, bullying-related litigation”, claimants are still permitted to request relief in their individual capacity. By resisting the implementation of measures that would prevent bullying itself while, at the same time, making these types of personal injury cases easier to prove, public city schools are vulnerable to an uptick in negligent supervision cases involving bullying.

Even in cases involving private schools, the plaintiff’s bar can offer the settlement terms as evidence of a “standard” for addressing bullying incidents at school. Are private schools required to implement electronic systems to report bullying? Must private school staff report all instances of bullying (which is not defined by the Decision) within one day? A plaintiff’s attorney could point to this settlement, voluntarily entered into by the Department of Education, and argue that failure to accord with these measures constitutes a departure from a standard widely adopted in this region.

Hopefully the legislature will not be as reluctant to address the root cause of this important issue.

Thanks to Kristina Duffy for her contribution to this post. Please email Vito A. Pinto with any questions.