Schools can be liable for permitting a “hostile education environment
Schools must address the Warning Signs
At around the same time that students went back to school this year, United States Senior District Court Judge Denis R. Hurley issued a landmark decision about students who are threatened and schools, private or public, that do not act timely and appropriately.
The New York Law Journal, focusing on the characterization by Judge Hurley that this was a “Disturbing Racial Attack,” and “[t]he pictures targeted the student’s race and referenced the KKK, Nazis and suicide, according to copies included with the complaint.” When white students sent pictures of, among other things, a gun to his head, and a lynching noose to an African American/black student, school administrators should have acted but did not.
As counsel for the family, we could not wait until our client was murdered.
From emojis to gun gestures, school administrators know that images convey physical threats and this case was no different. In Virginia v. Black, 538 U.S. 343 (2003), an appeal stemming from cross burning by Ku Klux Klan (“Klan”) members, Justice Clarence Thomas dissented in the striking down of the statute banning cross burning, stating that “cross burning subjects its targets…to extreme emotional distress, and is virtually never viewed merely as ‘unwanted communication,’ but rather, as a physical threat.” This lone dissent is a reminder of what every African American knows upon seeing images of the Ku Klux Klan, Hitler, and a Noose addressed to them— a threat of imminent death if not serious physical harm.
We live in an age where Klan members no longer need wood, matches and gasoline in front of someone’s home to send their message – now all they have to do is click ‘send!’
As Plaintiffs’ counsel in Moore, we argued the position that tolerating and facilitating a racially hostile environment effectively prevents the infant Plaintiffs D.W.M. and D.D.M. from obtaining the Roman Catholic elementary school education their parents contracted for from the Defendant St. Mary School and Defendant Diocese of Rockville Centre. The Plaintiffs in Moore had no other option but to sue in federal Court after exhausting every civil and legal remedy, to obtain relief from these school children.
Unable to obtain an Order of Protection by means of Order to Show Cause, the Plaintiff children had to leave St Mary school to remove themselves from the threats.
Of the claims that survived dismissal, the Hostile Educational Environment claim is extremely important in these unfortunate days of violent turmoil and regularly publicized school shootings. “The Second Circuit has indicated that discrimination claims under Title II are subject to the same analysis as discrimination claims under 42 U.S.C. § 1981.” “[T]he Second Circuit has made clear that there is no state action requirement to invoke the equal benefit clause of the section.” Accordingly, both private and public schools must address threats of racial violence towards their students.
In Moore, Plaintiffs alleged that both the Constitution of the United States and the New York State constitution protect persons against the harm caused by racial threats and intimidation. “[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.” The cyberassault images contained within Exhibits 2 through 9 of Plaintiffs’ Amended Complaint left no doubt that their purpose was intimidation by racial threats and the Court agreed.
“Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” “A child, merely on account of his minority, is not beyond the protection of the Constitution.” “Students in school as well as out of school are ‘persons’ under our Constitution no less than corporations attempting to influence elections through unlimited media campaigns. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.” “[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.”
While Judge Hurley held that the Hostile Educational Environment claim survived, finding that the threats in the complaint shock the conscience, he rejected Plaintiffs’ argument that private actors such as Defendants St. Mary School and the Diocese of Rockville Centre which provide the compulsory schooling required by State legislation act under color of state law. Nevertheless, Judge Hurley did hold that such private actors cannot be said to be entities independent of that high duty to serve as the protectors of our most valuable resources, the safety and education of children. The Due Process Clause affords those protections “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
The import of the decision is profound for students whom the school disregards; to every school that sees the signs and fails to act appropriately. On the heels of the Stoneman Douglas High School shooting and shortly after the Santa Fe High School Shooting in Texas, the Moore Family filed suit against Defendant St. Mary School and Diocese asking the Court to craft a remedy in Equity.
The seriousness of these threats were addressed in a United States District Court, historically the place where racism and violence spawned by the Klan and other white supremacy groups have been addressed.
The message Judge Hurley sent in Moore should resonate among all those responsible for the protection, education and safety of children: indifference and apathy to signs of imminent violence will not be tolerated.