Daly et al v. Miller Place Union Free School District et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------x
CLAIRE DALY, by and through their
mother and general guardian, DANIELLE
DALY,
Plaintiffs,
v.
MILLER PLACE UNION FREE SCHOOL
DISTRICT, CHRISTOPHER
HERRSCHAFT individually, JOSEPH
ZITO individually, NICOLE FARLEY
individually, and LISA BRAY individually,
Defendants.
----------------------------------------------------x
MEMORANDUM AND ORDER
2:23-cv-8601 (AMD) (SIL)
ANN M. DONNELLY, United States District Judge:1
C.D., by and through her mother Danielle Daly, alleges that Miller Place Union Free
School District, superintendent Christopher Herrschaft, principal Joseph Zito, assistant principal
Nicole Farley, and teacher Lisa Bray deliberately ignored a pattern of sexual harassment and
bullying in violation of Title IX and Section 1983. Before the Court is the defendants’ motion to
dismiss the complaint. As explained below, the motion is granted in part and denied in part.
BACKGROUND2
From 2017 to 2023, the plaintiff attended public schools operated by Miller Place. 	She
started in kindergarten at Andrew Muller Primary School in 2017. (ECF No. 51 ¶ 39.) She alleges
1 This case, originally assigned to the Honorable Rachel Kovner, was reassigned to this Court on October
21, 2025.
2 The facts are drawn from the allegations in the complaint. The Court draws all reasonable inferences in
the plaintiffs’ favor, and accepts the factual allegations in the amended complaint as true for purposes of
this motion. See Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012).
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that another child, Q.C., routinely bullied her. 	(Id. ¶ 40.) 	Once, he pushed her up against the
school bus and kissed her. (Id.) Another time, he sat on top of her, punched her in the face, and
said, “I want to marry you.” (Id. ¶ 41.) The school principal assigned an aide to watch Q.C. and
gave the plaintiff a “card to put in her pencil box” so that she could signal the teacher if she felt
“unsafe.” 	(Id. ¶¶ 43–46.) 	That measure did not work. The plaintiff’s mother “continued to
receive” phone calls about Q.C.’s troubling behavior. (Id. ¶¶ 44, 47.)
Q.C. transferred schools for first grade, but other students started to bully the plaintiff.
(See id. ¶ 51.) At the school carnival, A.M. and A.T. told the plaintiff to “leave their table because
they didn’t want her there.” 	(Id.) 	At some point, the plaintiff told her parents that she had
“thoughts about hurting herself or others with her uncle’s gun.” (Id. ¶ 52.)
Another student, C.F., also started bullying the plaintiff in second grade. He called her a
“nerd” because she did her homework on the bus. 	(Id. ¶ 55.) 	By the time the plaintiff started
fourth grade at Laddie Decker Sound Beach Elementary School (id. ¶¶ 4, 64), the bullying took a
sexual turn. C.F. “moan[ed] sexually in” the plaintiff’s ear and made “sexual comments” in class.
(Id. ¶¶ 66, 69.) The plaintiff was afraid that “C.F. would come to the house,” and “was scared to
get on the bus.” (Id. ¶ 67.) After her parents alerted the school, then–assistant principal Joseph
Zito talked to C.F., and his teacher “allegedly disciplined” him, but C.F. “did not stop.” (Id. ¶¶ 68–
69.)
In January 2022, the plaintiff confided to a classmate, A.M., that she “liked girls”; A.M.
responded, “Ewww. Why are you gay?” (Id. ¶ 75.) A.M. told her friends what the plaintiff said,
and they teased the plaintiff about her sexual orientation. 	(See id. ¶¶ 75–76.) 	Other students
accused the plaintiff of lying to them by “declaring she was not straight.” (Id. ¶¶ 77.) A group of
students spread other rumors—that the plaintiff was “weird” and “picks her nose,” was “blind,”
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and “two-faced,” and “doesn’t wipe her butt crack.” (Id. ¶¶ 81–82.) A.M. warned students that
“if [the plaintiff] hugs you that means she likes you, so don’t let her.” (Id. ¶¶ 81–82.)
Students made these remarks “in full view of staff,” including fourth-grade teacher Jessica
Warren. (Id. ¶ 84.) When the plaintiff’s parents complained to Warren, she did not discipline the
students and instead told the parents that “it was just ‘girl drama.’” (Id. ¶ 90.) After some students
told counselors that they did not want the plaintiff to hug them, the counselors told the plaintiff
“not to hug the other girls because physical contact[] ‘was not allowed at school.’” 	(Id. ¶ 93.)
However, physical contact was allowed between other students—for instance, staff members
prompted students to hug “when posing for class pictures.” 	(Id. ¶¶ 100, 378.) 	At the school’s
“family awards ceremony,” a teacher gave one of the bullies the “Good Friendship Award,” but
gave the plaintiff the “Most Likely to go to Broadway Award,” because the plaintiff was the “girl
who brings all the drama to the class.” (Id. ¶ 94.) The plaintiff objected to the teacher’s comments,
and the principal disciplined the teacher. (See id.)
The plaintiff’s parents contacted Zito about the awards ceremony incident, and asked him
to separate the bullies and the plaintiff. 	They also asked Zito to make a complaint under New
York’s Dignity for All Students Act (“DASA”).3 (Id. ¶¶ 13–15, 101–103.) Zito refused to file a
DASA complaint. 	He explained that the plaintiff could not hug other students because of the
school’s “no contact policy.” 	(See id. ¶ 99.) 	He did, however, add the plaintiff’s name to a
“healthy separations” list for the next year. (Id. ¶ 103.) After the plaintiff’s parents filed a DASA
3 The New York Education Law mandates that school districts receive, investigate, and address reports of
harassment, bullying, and discrimination in New York schools. 	N.Y. Educ. Law § 13. 	Under Miller
Place’s Student Harassment and Bullying Policy, parents may file harassment reports to designated
coordinators in each school. (ECF No. 51 ¶ 13.) The coordinator must investigate complaints, determine
whether the complaint is founded, and address whether the school must deploy accommodations to ensure
student safety. (Id. ¶¶ 15–17.) Complainants may appeal the coordinator’s determination to the school
district and request an informal hearing. (Id. ¶ 15.)
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complaint on June 24, 2022 (see id. ¶¶ 101–05), Christopher Herrschaft, who was the principal at
the time, “deemed the complaint regarding A.M.’s comments ‘unfounded’” (id. ¶ 106). When the
plaintiff’s parents suggested that they might move her to private school, administrators promised
to give the plaintiff an “open door” to report bullying directly to Zito. (Id. ¶¶ 113, 117.)
At one point, the plaintiff told her mother that “she did not want to live anymore.” 	(Id.
¶ 80.) She had “panic attacks,” “increased anxiety, sleep difficulties, self-esteem issues and body
image disturbances.” (Id. ¶¶ 92, 101.) She avoided school, and her grades dropped. (Id. ¶ 97.) A
doctor diagnosed her with anxiety and depression. (Id. ¶ 111.)
Students continued to bully the plaintiff in the fifth grade. Some students commented about
the plaintiff’s sexuality and intelligence. They called her “fat,” “ugly,” “motherfucker,” a “piece
of shit,” “bitch,” “whore,” and told her to kill herself because her life was “pointless anyway.” (Id.
¶¶ 125–29.) Another fifth grader, O.D., mocked the plaintiff’s hair, teeth, and face. (Id. ¶ 139.)
Teacher Lisa Bray and two social workers told O.D. to “stay away” from the plaintiff, but in
December 2022, Bray seated the plaintiff next to O.D. and refused to let her change seats. 	(Id.
¶¶ 139, 144.) Two students, who were “a few feet away” from Bray and another teacher, Jordan
Beth Fiore, said it was “disgusting” that the plaintiff was gay. (Id. ¶¶ 127, 132.) Another time,
when the plaintiff was on the bus, three students made fun of her clothes. (Id. ¶ 137.) C.V. called
the plaintiff a “retarted [sic] faggot” said on Snapchat that the plaintiff looked like a character with
facial deformities, and threatened that he and other students would “hunt” her. (Id. ¶¶ 140, 143.)
C.V. also banged on the bathroom door while the plaintiff was inside. (Id. ¶ 203.) In the fall, three
students “cornered” the plaintiff, in view of the lunch aides, even though school staff had instructed
the students “not to interact” with the plaintiff. (Id. ¶ 134.) Other students told the plaintiff about
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the “[C.D.] Touch” rumor—that touching the plaintiff would “turn” them gay—but stopped after
Farley spoke to them. (Id. ¶ 189.)
Some of the bullying was more sexual in nature. On the bus, C.F. took the plaintiff’s phone
and played “sexual videos/songs,” which he asked the plaintiff to watch. 	(Id. ¶¶ 122–23.) 	He
repeatedly asked plaintiff to watch pornography, even though she said it made her uncomfortable.
(Id. ¶ 123.)
Zito, now the principal (id. ¶ 110), addressed some of the plaintiff’s concerns. He told the
plaintiff’s mother that he would remind lunch aides “not to encourage interactions” between the
plaintiff and the bullies. (Id. ¶ 135.) Zito said that the boys who made fun of plaintiff’s clothing
were “good kids” and described the teasing as “an isolated incident.” (Id. ¶ 138.) In addition, the
school rescheduled the plaintiff’s lunch period, so that she would not have to eat with the girls
“who were ostracizing” her. (Id. ¶ 219.) On the other hand, Zito told plaintiff’s parents not to be
concerned about C.F. (Id. ¶ 146.) He did not discipline C.F., even though the plaintiff reported
“daily sexual harassment . . . right after she got off the bus.” 	(Id. ¶ 145.) 	The school did not
address the plaintiff’s report that C.V. called her a “retarted faggot.” (See id. ¶¶ 140–41.) The day
after the plaintiff’s parents complained about C.V.’s Snapchat comment, social worker Nicole
Werner pulled the plaintiff aside and said, “We don’t say ‘gay’ here.” (Id. ¶ 142.)
When Zito took medical leave from January to March 2023, Bray and Fiore did not let the
plaintiff leave during class to report bullying. 	(Id. ¶¶ 171–73.) 	Students commented on the
plaintiff’s sexual orientation with increasing frequency. 	(Id. ¶ 171.) 	One student, G.L., asked
plaintiff why she was not heterosexual, and called her a “fat pig.” 	(Id. ¶¶ 172, 192.) 	Bray
disciplined G.L. and told the bullies that “it wasn’t okay to talk about someone’s sexual orientation
that way.” 	(Id. ¶ 172.) 	Privately, however, she warned the plaintiff not to discuss her sexual
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orientation in school. (Id.) In February 2023, the plaintiff told her mother that O.D. and another
student “smacked” her. (Id. ¶ 155.) The plaintiff’s parents reported the incident to Farley, who
responded that it was “okay because it was ‘Smack Your Friend in the Face Day.’” (Id. ¶ 159.)
C.F. continued to show the plaintiff sexual videos and make sexual comments. When the
plaintiff told him to stop, he and another student responded, “It doesn’t matter because you are
gay.” (Id. ¶¶ 161–62.) Interim administrator Tom Meehan, who was filling in for Zito, told the
plaintiff’s parents that he would assign a behavioral counselor to walk the plaintiff to the bus pick-
up area. He also said that he would give C.F. a punishment when he returned from a break. (Id.
¶¶ 153, 167.) The bus driver assigned C.F. a seat in the front of the bus, and the plaintiff in the
rear (id. ¶ 169), but C.F. “stalked” the plaintiff until the bus driver told him to stay in his seat (id.
¶ 187). 	C.F. wanted his friend “to communicate with [the plaintiff] on [C.F.’s] behalf,” so he
texted the friend that the plaintiff was a “bitch,” “too white,” and “ugly.” (See id. ¶¶ 169, 187.)
On March 11, 2023, C.F. forwarded “all texts between himself and” the plaintiff to his friend. (Id.
¶ 185.) Counselor Nicole Lazar saw the texts on C.F.’s phone and deleted them. (Id.)
After Zito returned, Bray and Fiore still refused to let the plaintiff leave class to see him.
(Id. ¶ 174.) School officials viewed her complaints with skepticism. When the plaintiff reported
that another student was “mean” to her, Bray accused her of lying. (Id. ¶ 175.) Another time, at
recess, C.F. tried to trip the plaintiff by throwing basketballs at her. He stopped when the plaintiff
called for Zito, who concluded that C.F. “had done nothing wrong.” (Id. ¶¶ 219–21.) When the
plaintiff’s parents reported that O.D. was encouraging students to yell at the plaintiff, Zito and
Farley told them that they had “done all they can.” (Id. ¶¶ 176–77.) The plaintiff tried to draw
attention to bullying by “yelling loudly,” but Bray disciplined her. (Id. ¶ 180.) She also told Bray
that other students said that they thought the plaintiff “was a terrible singer.” (Id. ¶ 201.) Bray
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gave her a “behavior check point” and reprimanded her for “telling” on her peers. (Id.) The gym
teacher told the plaintiff to “suck it up” when G.L. kicked her in front of two other students. (Id.
¶ 180.) Farley, too, rejected the plaintiff’s accusations, and said “that G.L. could not have kicked
[the plaintiff] in the back during gym because Lazar went down to the gym and Zito had also
stopped in.” (Id. ¶ 196.)
C.F.’s behavior got worse. He and another student told the plaintiff every day for weeks
that “Rape Day is coming,” which was “a TikTok joke but not really.” (Id. ¶ 200.) In April 2023,
he snuck up to the plaintiff on the bus, grabbed her by her thighs, pulled her onto his lap, and tried
to kiss her. (Id. ¶ 223.)
The plaintiff saw a therapist, took depression medication, and tried to avoid school
functions. (Id. ¶ 166.) She withdrew from the school chorus to avoid O.D. and C.F. (id. ¶ 148),
and was not going to audition for the school musical, until Farley urged her to audition (id. ¶¶ 216–
18).
On April 11, 2023, the plaintiff’s parents filed an internal DASA complaint. (Id. ¶ 205.)
They objected to eight incidents: (1) C.V. calling the plaintiff a “fucking retart” on Snapchat,
(2) O.D. and another student smacking the plaintiff, (3) C.F.’s comments on the bus, (4) C.F.
following the plaintiff on the bus and forwarding her texts to another student, (5) G.L. kicking the
plaintiff and asking her why she was gay, (6) other students “ostracizing” the plaintiff at lunch and
calling her a “fat pig,” (7) students mocking the “musical theater performances” the plaintiff posted
on TikTok, and (8) C.V.’s and G.L.’s “specific ongoing comments” about the plaintiff’s sexuality.
(Id. ¶¶ 206–13.) 	Zito, the DASA coordinator, responded. 	He found that the first, third, fourth,
seventh (as to two students), and eighth (as to G.L.) claims constituted bullying. (Id. ¶¶ 226, 228–
29, 232–33.) He concluded that the rest were either unfounded or were not bullying. (Id. ¶¶ 227–
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33.) Zito determined that the bullying was “addressed at the building level,” declined to institute
additional accommodations, and refused to move the plaintiff to a different classroom. 	(Id.
¶¶ 225–27, 234–35.)
The plaintiff’s parents appealed the “unfounded” determinations to Seth Lipshie, district
superintendent. (Id. ¶ 246.) Herrschaft, now the deputy superintendent, discouraged the plaintiff’s
parents from filing a complaint about C.F.’s April 2023 attack on the bus, claiming that the buses
did not have cameras. (Id. ¶ 259.) He did not respond when the plaintiff’s mother told him that
the plaintiff’s friend saw camera footage from the school bus in connection with a separate
incident. 	(Id.) 	The plaintiff’s parents filed a separate complaint about the April assault, which
Zito ultimately dismissed as “unfounded.” (Id. ¶ 262.)
Herrschaft advised the plaintiff’s parents of his determination of their appeal by letter. (Id.
¶ 266.) He maintained that the smacking incident was “unfounded” because “there was no intent
by either student to cause physical or emotional harm to Claire, as the students were following an
(albeit inappropriate) social trend of ‘slap your friend day.’” (Id. ¶ 267.) He upheld Zito’s findings
that the “fat pig” complaint was not credible because the plaintiff “changed her story” about
whether the student mouthed the comment or yelled it across the cafeteria. (Id. ¶ 268.) He also
found that plaintiff’s claims that G.L. and C.V. commented about her sexuality were not credible
because she “retracted her story” and changed the facts over time. 	(Id. ¶ 270.) 	The plaintiff
maintains that she did not change or retract either account. (Id. ¶¶ 269, 271.)
By this point, plaintiff was attending school from home “due to her anxiety and depression
over the bullying.” (Id. ¶ 249.) Although students who attend school from home must have five
hours of online tutoring a week, the plaintiff claims that she got only three hours. (Id. ¶¶ 250–52.)
Once, C.F. circled the plaintiff’s block for an hour, which the plaintiff reported to her parents; her
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parents complained to Zito, called the police and filed a report. (Id. ¶¶ 257, 263–64.) C.F.’s father
confronted them angrily, challenged the plaintiff’s father to a fight, and called the plaintiff’s
mother a “fucking cunt.” (Id. ¶ 272.)
The plaintiff ultimately transferred to a private school. 	Shortly thereafter, Lazar and
Herrschaft asked the plaintiff’s sister about the plaintiff. (Id. ¶¶ 261, 306.)
The plaintiff sued Miller Place, Herrschaft, Zito, Farley, and Bray. The second amended
complaint includes six counts.4 	Count One alleges that Miller Place violated Title IX by
deliberately ignoring the plaintiff’s reports of harassment based on her sex and sexual orientation,
and by treating her differently than heterosexual students. 	(Id. ¶¶ 326–50.) 	Count Two alleges
that Miller Place violated Title IX by “forc[ing the plaintiff] to endure a hostile environment.” (Id.
¶¶ 351–57.) Count Three alleges that Miller Place retaliated against the plaintiffs because she and
her parents complained. (Id. ¶¶ 358–71.) Count Four alleges that Miller Place, Herrschaft, Zito,
and Farley violated her rights to equal protection under Section 1983 because they did not
adequately resolve her complaints, and told her not to hug other students or discuss her sexuality.
(Id. ¶¶ 372–88.) Count Five alleges that all the defendants retaliated against the plaintiff for filing
DASA complaints, in violation of her First Amendment rights. (Id. ¶¶ 389–96.) Count Six alleges
that Miller Place, Zito, and Bray violated her free-speech rights by saying she could not discuss
her sexuality at school. (Id. ¶¶ 406–11.)
The defendants move to dismiss the complaint.
4 Although the original complaint includes claims by A.D., the Second Amended Complaint includes
onlythe plaintiff’s claims. Because an amended complaint supersedes the pleading it modifies, Laza v.
Reish, 84 F.3d 578, 581 (2d Cir. 1996), the Clerk of Court is respectfully directed to amend the caption in
this case to remove A.D.
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STANDARD OF REVIEW
A 	complaint 	will 	survive 	a 	motion 	to 	dismiss 	under 	Federal 	Rule 	of 	Civil
Procedure 12(b)(6) only when it alleges “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A court evaluating a Rule 12(b)(6)
motion “accept[s] all factual allegations in the complaint as true and draw[s] all reasonable
inferences in favor of the plaintiff.” 	Olson v. Major League Baseball, 29 F.4th 59, 71 (2d Cir.
2022). But “threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to survive a motion to dismiss. Mastafa v. Chevron Corp., 770 F.3d
170, 177 (2d Cir. 2014) (citation omitted); see Twombly, 550 U.S. at 555 (“While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
(quotation marks, brackets, and citations omitted)).5
DISCUSSION6
I. 	Title IX Claims
Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The
5 The plaintiff’s motion (ECF No. 64) to convert the defendants’ motion into a summary judgment motion
is denied. While the defendants attached exhibits to their motion, they did not rely on them, and the Court
does not consider them. Nor will the Court deny the defendants’ motion because they did not timely file
a cover letter in accordance with Judge Kovner’s Individual Practice Rules.
6 Although the plaintiff sought injunctive and declaratory relief in the second amended complaint, she has
advised the Court that “[i]njunctive relief is no longer at issue” because “it was dropped.” (ECF No. 64).
Even if she were seeking such relief, she does not have standing, because injunctive and declaratory
relief—–for example, requiring Miller Place to update its policies—would not redress her injuries, which
occurred in the past. She is “thriv[ing]” at the private school she currently attends, and does not suggest
that she intends to return to the defendants’ school system. (ECF No. 18 ¶ 308.)
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statute operates “much in the nature of a contract: in return for federal funds, the States agree to
comply with federally imposed conditions.” 	Pennhurst State Sch. & Hosp. v. Halderman, 451
U.S. 1, 17 (1981). At issue here is Title IX’s implied right to sue for damages for certain violations.
See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).
The plaintiff argues four theories of Title IX liability: (1) that the school acted with
deliberate indifference to the harassment the plaintiff suffered at the hands of other students (ECF
No. 51 ¶¶ 332–40); (2) that the school created a hostile environment based on sex (id. ¶¶ 351–57);
(3) that the school district discriminated against her on the basis of her sexual orientation (id.
¶¶ 341–50); and (4) that the school retaliated against her for attempting to assert her statutory rights
under Title IX (id. ¶¶ 358–88). The Court addresses each claim in turn.
A. 	Deliberate Indifference
A school’s failure to prevent student-on-student sexual harassment may “rise to the level
of discrimination actionable under” Title IX. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,
648 (1999). Damages are available if the plaintiff establishes three elements: that the harassment
was “so severe, pervasive, and objectively offensive” that it “effectively denied equal access” to
school resources, id. at 652; that an official with “authority to address the alleged discrimination
and to institute corrective measures” had “actual knowledge” of the harassment, Gebser, 524 U.S.
at 290; and that the response amounted to “deliberate indifference,” Papelino v. Albany Coll. of
Pharm. of Union Univ., 633 F.3d 81, 89 (2d Cir. 2011) (quoting Gebser, 524 U.S. at 290). Because
“courts 	should 	refrain 	from 	second-guessing 	the 	disciplinary 	decisions 	made 	by 	school
administrators,” Davis, 526 U.S. at 648, the official response must be “‘clearly unreasonable’ in
light of known circumstances,” Papelino, 633 F.3d at 89 (citation omitted). 	In this Circuit, a
response that is “not reasonably calculated to end harassment”—such as continuing to employ
methods that the district knows are ineffective—is clearly unreasonable. See Zeno v. Pine Plains
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Cent. Sch. Dist., 702 F.3d 655, 664–65, 669 (2d Cir. 2012) (using this standard in the Title VI
context, which embraces Title IX’s deliberate-indifference standard for peer-harassment claims).
The plaintiff advances two theories of deliberate indifference. First, she alleges that the
school’s response to sexual harassment was inadequate. (ECF No. 51 ¶¶ 328, 332–40.) Second,
she claims that the school’s response to bullying—including students who “smack[ed]” her, called
a “retarted faggot,” and harassed her because she disclosed that she was gay—was inadequate.
(Id. ¶¶ 127, 140, 143, 189.)
The standard for peer harassment is stricter than that for teacher-student harassment.
Davis, 526 U.S. at 653. 	For instance, “insults, banter, teasing, shoving, and pushing” are not
enough, nor does a “decline in grades” alone establish objective offensiveness. 	Id. at 651–52
(quotation marks and citation omitted). On the other hand, bullying that requires students to seek
professional help, or consider self-harm, is sufficient. See, e.g., Cianciotto ex rel. D.S. v. N.Y.C.
Dep’t of Educ., 600 F. Supp. 3d 434, 455–56 (S.D.N.Y. 2022) (finding bullying that made plaintiff
lose sleep, miss school, and turn to therapy sufficiently severe); T.E. v. Pine Bush Cent. Sch. Dist.,
58 F. Supp. 3d 332, 358 (S.D.N.Y. 2014) (finding antisemitic harassment that led student to
withdraw from school sufficiently severe in Title VI context), abrogated on other grounds, Agosto
v. N.Y.C. Dep’t of Educ., 982 F.3d 86 (2d Cir. 2020). The plaintiff plausibly states a Title IX claim
under the first theory—that the defendants’ response to sexual harassment was inadequate. She
demonstrates that she experienced severe harassment that deprived her of equal access to
education. Papelino, 633 F.3d at 89.
The complaint describes far more than “childish teasing and insults.” (ECF No. 63-13 at
20.) 	On the contrary, the plaintiff alleges objectively offensive and pervasive harm. 	In
kindergarten, a child pushed her against the school bus and kissed her. (ECF No. 51 ¶ 40.) When
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she was in fifth grade, C.F. “grabbed” her “by her thighs, pull[ed] her down the seat and onto his
lap,” and “tried to kiss her.” (Id. ¶ 223.) He “moan[ed] sexually in her ear or her face” (id. ¶ 66),
played “sexual videos/songs” on the school bus (id. ¶¶ 122–23), and persisted in talking to her
about sex even after she told him to stop (id. ¶ 161). 	The harassment involved threats of
violence. O.D. threatened that he and other students would “hunt” her, and G.C. (another student)
and C.F. repeatedly warned her that “Rape Day is coming.” (Id. ¶¶ 143, 200.) As a consequence,
the plaintiff suffered from anxiety, sleep deprivation, she missed school to attend therapy, and she
eventually transferred to private school. 	Even now, she has “nightmares, insomnia, [and]
headaches.” (Id. ¶¶ 101, 111, 325.) The harassment and its effects on the plaintiff deprived her of
equal access to education.
The plaintiff also adequately alleges that the school district knew about the harassment and
had the authority to address it. Her parents told the kindergarten principal that Q.C. punched her
and kissed her. (Id. ¶¶ 40–45.) When she was in fourth and fifth grade, the plaintiff told Zito and
Farley about C.F.’s behavior on the bus, and about the “Rape Day” comments. (Id. ¶¶ 122, 200.)
Her parents also reported C.F.’s behavior to the fourth-grade teacher; Zito, in turn, spoke to C.F.
(Id. ¶¶ 67–68.) In fifth grade, the plaintiff made “daily” reports about C.F.’s conduct on the school
bus. 	(Id. ¶ 145.) 	Her parents filed a complaint with Zito, appealed to Lipshie, and met with
Herrschaft—all of which alerted district officials to their complaints. (Id. ¶¶ 226–33, 266.) The
majority of the harassment took place in the classroom or on the bus—where the defendants could
control the students. 	Cf. Pine Bush, 58 F. Supp. 3d at 357 (finding control in Title VI case
involving incidents on school bus).
Next, plaintiff plausibly alleges that the district’s responses were “not reasonably
calculated to end harassment.” 	Zeno, 702 F.3d at 669. 	Zito dismissed many of the plaintiff’s
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concerns. At first, he told her parents not to worry about C.F., and ignored the plaintiff’s daily
reports about what was happening on the bus. 	(ECF No. 51 ¶¶ 145–46.) 	The plaintiff and her
parents also spoke to Farley about C.F., but she just shrugged her shoulders and said she “didn’t
know” what to do about C.F. (Id. ¶ 122.) 	Because the defendants did nothing to stop C.F., he
persisted. He routinely showed the plaintiff pornography, and made sexual comments. (Id. ¶¶ 153,
161.)
School officials eventually responded by seating C.F. and plaintiff in different parts of the
bus.7 But that did not stop C.F. from harassing the plaintiff. He grabbed her, pulled her on his
lap, and tried to kiss her, an attack that the plaintiff reported to Farley and Zito. (Id. ¶ 223.) School
officials did not investigate the complaint, or talk to the plaintiff’s parents about filing a school
“Sexual Harassment” complaint. See Schiebel v. Schoharie Cent. Sch. Dist., 120 F.4th 1082, 1095
n.6 (2d Cir. 2024) (finding procedural irregularities in school’s response probative of indifference).
The Board officials were similarly unresponsive. Herrschaft rejected the plaintiff’s report
that C.F. tried to kiss her as “unfounded,” without looking into whether there was video footage
from the bus. He also declined to assign the plaintiff to a different bus. (ECF No. 51 ¶¶ 259, 262.)
He discouraged the plaintiff’s parents from filing a complaint, and did not investigate the bus
incident. (Id. ¶¶ 258, 262.) These allegations are sufficient to allege deliberate indifference—a
lack of effort “to investigate or put an end to the harassment,” Davis, 526 U.S. at 654—by Miller
Place.
The defendants maintain that they took reasonable steps to respond to the plaintiff’s
reports; they point out that they separated the plaintiff and the bullies, assigned a social worker to
walk her to the bus, and gave her a way to notify Zito when she felt unsafe. (ECF No. 63-13 at
7 The defendants do not contest that the principals have policymaking authority.
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29.) 	But the plaintiff alleges that the defendants did not act quickly enough to protect her. They
waited for an entire semester before finally separating the plaintiff and C.F., after Zito and Farley
had taken no action. (See ECF No. 51 ¶¶ 122, 187.) Cf. Zeno, 702 F.3d at 669–70 (finding delay
after school officials learned about of peer harassment evidence of deliberate indifference). And
some of the measures were not especially effective. The defendants assigned a social worker to
walk plaintiff to the bus, but that did not protect her from C.F. once she was on the bus. (See ECF
No. 51 ¶ 285.) 	Zito’s open-door policy enabling the plaintiff to make reports, was of little use,
because, as the complaint alleges, he did not respond to the plaintiff’s complaints when she
reported them. (Id. ¶ 145.) Seating C.F. away from the plaintiff on the bus, as the defendants did,
was not effective; C.F. still tried to kiss her and sent texts about her. Herrschaft and Lipshie did
not respond reasonably. They concluded that the plaintiff’s complaints were unfounded, without
investigating the plaintiff’s allegations, and without implementing additional measures to separate
C.F. and the plaintiff. 	(Id. ¶¶ 246, 259, 262.) 	At this stage of the litigation, the plaintiff has
plausibly stated a claim for relief under Title IX.
Because the plaintiff states a plausible claim for relief under one theory, the Court does not
address whether Title IX authorizes sexual orientation discrimination claims for damages, a
question that the Second Circuit has not addressed. If a party sets out “2 or more statements of a
claim or defense alternatively or hypothetically” in a single count, “the pleading is sufficient if any
one of them is sufficient.” 	Fed. R. Civ. P. 8(d)(2). 	Courts in this Circuit routinely decline to
address alternate theories of discrimination when one suffices to state a plausible claim for relief.
See, e.g., Cianciotto, 600 F. Supp. 3d at 458 n.11 (declining to address whether teachers “directly
harassed” student in blocking presentation on LGBTQ issues after finding them deliberately
indifferent to peer harassment already); Facci-Brahler v. Montgomery County, No. 18-CV-0941,
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2021 WL 1224048, at *3 n.3 (N.D.N.Y. Mar. 31, 2021) (refusing to address alternate bases for
discrimination when plaintiff adequately pleaded one); Fagan v. U.S. Carpet Installation, Inc., 770
F. Supp. 2d 490, 492, 496–97 (E.D.N.Y. 2011) (allowing plaintiffs to plead age and sex
discrimination as alternative theories in challenging their terminations).
The plaintiff alleges a single “pattern and practice of deliberate indifference” to her reports
of persistent harassment. (ECF No. 51 ¶ 339.) Because of that indifference, students bullied the
plaintiff on the basis of her sex and because of her sexual orientation, and also subjected her to
more garden-variety bullying and name-calling. 	The overall pattern of conduct is a set of
“operative facts” that gives rise to an enforceable right. Original Ballet Russe v. Ballet Theatre,
133 F.2d 187, 189 (2d Cir. 1943). The separate acts of bullying form a single pattern of misconduct
that changed the terms of the plaintiff’s educational experience. Cf. Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 116 (2002) (understanding “a hostile work environment claim” as “a
series of separate acts that collectively constitute one unlawful employment practice” (internal
quotation marks and citation omitted)); cf., e.g., Tromblee v. New York, No. 19-CV-0638, 2021
WL 	981847, 	at 	*11 	(N.D.N.Y. 	Mar. 	16, 	2021) 	(understanding 	retaliatory-hostile-work-
environment claim as single claim alleging two theories: either that “numerous alleged retaliatory
acts” each individually harmed plaintiff or that “the sum total [was] materially adverse”).
B. 	Hostile Educational Environment
The plaintiff’s hostile-environment claim is identical to her deliberate-indifference claim.
Title IX permits a plaintiff to recover damages if a school creates a sexually hostile environment
that deprives her of “the ability to enjoy the benefits of” a federally funded educational program.
Roe v. St. John’s Univ., 91 F.4th 643, 661 (2d Cir. 2024). To prevail, plaintiff must show that the
environment was objectively “hostile or abusive” such that it “alter[ed] the conditions of [the]
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educational environment.” Id. (quoting Papelino, 633 F.3d at 89). The school is liable for peer
harassment only if it was deliberately indifferent. Id. (quoting Davis, 526 U.S. at 633).
That standard is the same standard for the deliberate indifference claim. 	See, e.g.,
Cianciotto, 600 F. Supp. 3d at 451–52 (treating hostile-environment claim involving peer
harassment as deliberate-indifference claim). 	The “essence of each claim” is the hostile
environment, which the defendants exacerbated by their inadequate response to the bullying. Cf.
Corcoran v. N.Y. Power Auth., 202 F.3d 530, 544–45 (2d Cir. 1999). Indeed, the plaintiff discusses
her deliberate-indifference and hostile-environment claims under one heading, one rule, and one
standard, and relies on the same facts. 	(ECF No. 64 at 20–23.) 	Because the plaintiff’s hostile-
environment claim duplicates her deliberate-indifference claim, it is dismissed. See, e.g., Samuels
v. City of New York, No. 22-CV-1904, 2023 WL 5717892, at *11 (S.D.N.Y. Sept. 5, 2023)
(collecting cases dismissing harassment claims as duplicative of hostile work environment claims).
C. 	Disparate Treatment
The plaintiff does not state a plausible Title IX disparate-treatment claim. A plaintiff may
establish that a school district discriminated against her on the basis of sex if sex was a “motivating
factor in the decision to discipline.” 	Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994).
Alternatively, a plaintiff may establish sex discrimination if the school selectively enforced its
rules on the basis of sex. 	See id. 	In either case, she must plead “specific facts that support a
minimal plausible inference” of sex discrimination. Doe v. Columbia Univ., 831 F.3d 46, 56 (2d
Cir. 2016).
Courts apply the McDonnell Douglas framework for these claims. 	Id. at 55–56; see
Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 248 (2d Cir. 1995). 	Degrading criticism,
invidious comments about protected groups, or favorable treatment of “similarly situated”
employees outside the group may establish an inference of discrimination. 	Littlejohn v. City of
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New York, 795 F.3d 297, 312 (2d Cir. 2015). The comparator must be “similarly situated to the
plaintiff ‘in all material respects.’” Radwan v. Manuel, 55 F.4th 101, 132 (2d Cir. 2022) (citation
omitted).
The plaintiff says that the defendants discriminated against her in two ways. First, she says
that the defendants discriminated against her by rejecting her bullying complaints as unfounded.
(ECF No. 51 ¶¶ 341, 383.) She alleges that the defendants did not investigate her claims, did not
separate her from the bullies, discipline them, or tell the plaintiff’s parents that they could file Title
IX or DASA complaints. 	(Id. ¶¶ 341–49.) 	The plaintiff’s second theory of discrimination is
premised on her fourth-grade counselors’ instruction that she not “hug the other girls,” while
permitting other students to hug one another, as evidenced by yearbook and presentation pictures,
taken by the staff. (Id. ¶¶ 85, 93; ECF No. 64 at 20.) The plaintiff also alleges that Werner and
Bray treated her differently on the basis of sex when Werner told her, “[W]e don’t say gay,” and
when Bray instructed her to “stop talking about her sexuality.” (ECF No. 51 ¶ 341.)
The first theory largely duplicates her Title IX claim: that the defendants were deliberately
indifferent to her claims of harassment.8 (See id. ¶¶ 343–45, 348–49.) The plaintiff also suggests
that Zito discriminated against her when he credited C.F.’s claim that he did not throw basketballs
at her, presumably because Zito believed that C.F. was more believable because he was a boy, and
rejected the plaintiff’s claim because she was a girl. (Id. ¶¶ 219–21, 349.) That argument is not
persuasive. First, C.F. is not comparable to the plaintiff; he was not complaining about harassment.
Radwan, 55 F.4th at 132. 	Thus, Zito was not treating similarly situated people differently.
Moreover, as the plaintiff concedes in the complaint, Zito did not see C.F. throw basketballs.
8 The plaintiff also says that the defendants discriminated against her because school board officials said
that “bullies ha[ve] rights,” but that is not discrimination on the basis of sex. (ECF No. 51 ¶ 345.)
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Nor is the second theory sufficient to state a claim of discrimination on the basis of sex.
The plaintiff cites the counselors’ and Zito’s instruction that she not hug students, while permitting
other students to hug one another. (ECF No. 64 at 19–20; ECF No. 51 ¶ 85.) But the other students
were not similarly situated to the plaintiff in all material respects. When Zito and the counsellors
told the plaintiff not to hug other students, they were responding to students who said that they did
not want the plaintiff to hug them. (ECF No. 51 ¶ 93.) That is not discrimination on the basis of
sex.9
D. 	Retaliation
The plaintiff does not state a plausible claim for retaliation. 	A funding recipient who
“retaliates against a person because he complains of sex discrimination” also discriminates on the
basis of sex. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005). To make out a prima
facie claim, the plaintiff must plead four elements: (1) protected activity by the plaintiff,
(2) knowledge by the defendant, (3) adverse action by the school, and (4) a causal connection
between the protected activity and adverse action. Papelino, 633 F.3d at 91 (citation omitted).
At issue here are the third and fourth elements. In this Circuit, an adverse action “under
both Title VII and Title IX” must dissuade a reasonable person from making a complaint. Doe v.
Yeshiva Univ., 703 F. Supp. 3d 473, 495 (S.D.N.Y. 2023) (quoting Fincher v. Depository Tr. &
Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010)). Failing to investigate the complaint typically
does not amount to adverse action, because a failure to investigate places the plaintiff in the same
situation she “would have been had she not brought the complaint”; thus, the plaintiff has “nothing
9 As pled in the complaint, Werner’s and Bray’s remarks about discussing sexual orientation at school do
not support a sex discrimination claim. Werner and Bray are teachers, and school districts are not
vicariously liable for the actions of individual teachers or behavioral counselors. Gebser, 524 U.S. at
287–88. Nor is there any evidence that Werner and Bray had decision-making authority for Miller Place.
Moreover, the plaintiff does not allege that other students were permitted to discuss their sexual
orientations, or that the plaintiff was treated differently on the basis of sex.
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to lose.” Fincher, 604 F.3d at 721–22. In order to constitute retaliation, the conduct must actively
dissuade the complainant from complaining. 	Examples include refusing to consider other
complaints or punishing her. See id. at 722.
As to causation, the Second Circuit has not decided whether Title IX claims must
establish—as Title VII claims must—whether the protected activity was a “but for” cause of the
adverse action, or simply a “motivating factor in the decision to discipline.” Radwan, 55 F.4th at
131 (quoting Yusuf, 35 F.3d at 715). The plaintiff does not state a claim under either standard. A
court determining whether an action is a motivating factor considers the defendant’s statements,
or “patterns of decision-making that” indicate the influence of gender. See Yusuf, 35 F.3d at 715.
For instance, a “[c]lose temporal proximity” between the protected activity and the retaliatory act
may suffice. Papelino, 633 F.3d at 91 (quoting Kaytar v. Elec. Boat Corp., 609 F.3d 537, 552 (2d
Cir. 2010)). 	But “an intervening causal event” may disrupt a causal inference. 	Yarde v. Good
Samaritan Hosp., 360 F. Supp. 2d 552, 562 (S.D.N.Y. 2005).
The plaintiff alleges that the defendants retaliated against her in multiple ways: refusing
“to address all of [her] complaints” (ECF No. 51 ¶ 362), inadequately punishing Warren for giving
the plaintiff the “bringing the drama” award, failing to report the smacking incident, giving the
plaintiff insufficient tutoring hours, not letting her bring a book to lunch, assigning “behavior
check” points when she reported G.L. for bothering her, and “harass[ing]” her sister after the
plaintiff withdrew from the school (ECF No. 64 at 23–24).
None of those actions supports a plausible retaliation claim. 	Failing to respond to the
plaintiff’s complaints left her in the same situation she was in when she filed them. Giving Warren
a “write up” instead of filing a DASA complaint for the “Most Likely to go to Broadway Award”
incident (ECF No. 51 ¶ 94) was not an adverse action against the plaintiff, and would not dissuade
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a reasonable person from asserting her rights under Title IX. Although giving the plaintiff three
hours of tutoring instead of five was inadequate, it does not make out a retaliation claim. In any
event, Bray, the teacher who gave the plaintiff the tutoring hours, was not a decision maker.
Gebser, 524 U.S. at 287–88.
Finally, the plaintiff cites Bray’s direction that the plaintiff “could not speak about her
homosexuality at school” as evidence of retaliation. (ECF No. 51 ¶ 364.) But the plaintiff cites
no evidence, including temporal proximity, that connects Bray’s comment and the plaintiff’s
DASA complaints. Moreover, the plaintiff concedes that Bray told the students who mocked the
plaintiff that “it wasn’t okay to talk about someone’s sexual orientation that way” as a response to
the concern that “sexual orientation bullying by the other kids had become an everyday
occurrence.”10 (Id. ¶¶ 172, 283.)
II. 	Section 1983 Claims
The plaintiff’s First Amendment claims are dismissed for failure to state a claim upon
which relief may be granted. 	However, the plaintiff states a plausible claim that Miller Place,
Herrschaft, Zito, and Farley violated Section 1983 and the Equal Protection Clause.
A. 	First Amendment Retaliation Claim
Public officials may not retaliate against someone for exercising a constitutional right, even
if their conduct might be proper when motivated by different reasons. 	To prevail on a First
Amendment retaliation claim under § 1983, the plaintiff must show that (1) she engaged in
10 The complaint also includes other complaints: that she received a “behavior check” point for complaining
about students’ comments on her TikTok posts (ECF No. 51 ¶ 201), that she could not bring a book to
lunch, that Zito made an angry remark to her father, and that Herrschaft asked her sister about the plaintiff
after the plaintiff transferred to private school. These incidents do not establish retaliation. Cf. Davis-
Garett v. Urb. Outfitters, Inc., 921 F.3d 30, 43 (2d Cir. 2019) (finding trivial punishments insufficiently
adverse).
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protected speech, (2) the defendants took adverse action against her, and (3) there was “a causal
connection between the protected speech and the adverse action.” 	Gill v. Pidlypchak, 389 F.3d
379, 380 (2d Cir. 2004) (citation omitted). 	An action is adverse if it “would deter a similarly
situated individual of ordinary firmness from exercising” her constitutional rights. Davis v. Goord,
320 F.3d 346, 353 (2d Cir. 2003) (citation omitted). While there are no bright-line rules, courts in
this Circuit have held that the improper investigation of a complaint typically cannot be an adverse
action in retaliation for filing that same complaint. Kelly v. N.Y. State Off. of Mental Health, 200
F. Supp. 3d 378, 404–05 (E.D.N.Y. 2016); Houston v. Schriro, No. 11-CV-7374, 2013 WL
4457375, at *10 (S.D.N.Y. Aug. 20, 2013) (“Ignoring grievances cannot support a First
Amendment retaliation claim.”). 	Like in the Title VII context, courts typically require
“[a]ffirmative efforts to punish a complaining employee.” Cf. Fincher, 604 F.3d at 722.
The plaintiff cites the following incidents as evidence of first amendment retaliation: the
defendants “gaslighted” her by discouraging her from filing DASA complaints, and then paying
insufficient attention to the complaints; refused to let her see Zito; refused to separate her from the
bullies; seated her next to O.D.; gave her a “behavior check” for reporting harassment; and refused
to “send home work when” she was sick. (ECF No. 51 ¶ 396.) The plaintiffs’ First Amendment
retaliation claim fails for the same reasons that her Title IX retaliation claim fails
School 	employees’ 	“clearly 	inadequate 	or 	inappropriate 	responses 	to 	the 	Daly[s’]
numerous complaints” are not sufficiently adverse, because the inadequate reaction would not
deter a similarly situated individual from speaking. (Id. ¶ 395.) Cf. Fincher, 604 F.3d at 721–22.
As explained above, supra Section I.D, failing to investigate a complaint does not punish the
reporter for making the complaint. The plaintiff does not explain what “a behavior check” is, so
there is no way to tell whether it would dissuade a reasonable person from filing complaints. (ECF
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No. 51 ¶ 201.) See, e.g., Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 228 (2d Cir. 2006) (denial
of emeritus status not adverse).
The plaintiff does not connect Bray’s conduct—seating the plaintiff next to O.D and
refusing to send her homework when was sick—to any protected activity. 	She does not plead
sufficient facts to show that protected speech “was a substantial motivating factor” in the assertedly
adverse action. See Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 251 (2d Cir.
2006) (citation omitted). 	There are no allegations suggesting that Bray seated O.D. next to the
plaintiff in December 2022 because the plaintiff complained about O.D. While the plaintiff claims
that she complained to Zito, she does not allege that she or her parents complained about O.D. to
Bray until after the plaintiff asked to change her seat. (ECF No. 51 ¶ 144.) Similarly, although
the plaintiff claims that Bray did not send her homework when the plaintiff got the flu, the plaintiff
concedes that Fiore told her parents that she could see the homework “in Google Classroom.” (Id.
¶ 151.) The plaintiff claims that she was “prevented from” logging in (id.)—but does not cite any
facts to establish that this was anything other than a technical problem. Therefore, the plaintiff’s
First Amendment retaliation claim is dismissed.
B. 	First Amendment Free Speech Claim
While students do not “shed their constitutional rights to freedom of speech or expression
at the schoolhouse gate,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969),
those rights are not absolute. “[S]chool administrators may prohibit student expression that” they
reasonably believe “will ‘materially and substantially disrupt the work and discipline of the
school.’” Doninger v. Niehoff, 527 F.3d 41, 50 (2d Cir. 2008) (quoting id. at 513). “[S]erious or
severe bullying or harassment targeting particular individuals; threats aimed at teachers or other
students; [and] the failure to follow rules concerning lessons” fall within the ambit of permissible
regulation. Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180, 188 (2021). The plaintiff claims that
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defendants violated the First Amendment when they said that she “could not hug anyone because
there was a ‘no-contact’ policy at Miller Place,” and that “she could not talk about her sexuality at
school.” (ECF No. 51 ¶¶ 408–09.)
Neither theory states a plausible First Amendment free speech claim. 	First, Zito told
plaintiff not to hug the other girls because a group of them told the behavioral counselors that “they
did not want [the plaintiff] to hug them.” (Id. ¶ 93.) Indeed, Zito separated those students and the
plaintiff because the plaintiff’s mother reported what the students said. (Id. ¶ 104.) Moreover, a
ban on nonconsensual touching regulates conduct and not speech, so it does not violate the First
Amendment scrutiny unless the plaintiff’s hugs were “intended to be communicative” and “would
reasonably be understood by the viewer to be communicative.” See Clark v. Cmty. for Creative
Non-Violence, 468 U.S. 288, 294 (1984) (setting this general standard outside the school context).
The plaintiff does not allege facts suggesting that she was hugging people to express herself.
Nor has the plaintiff sufficiently pled that the defendants violated the First Amendment
when Bray told her not to talk about her sexuality, and when Werner said, “We don’t say gay.”
To state a claim under Section 1983, the plaintiff must show that defendant’s actions “had some
actual, non-speculative chilling effect.” Colombo v. O’Connell, 310 F.3d 115, 117 (2d Cir. 2002)
(per curiam). Only then does a plaintiff establish a “specific present objective harm” for damages.
Laird v. Tatum, 408 U.S. 1, 10, 13–14 (1972).
The complaint does not describe the circumstances under which Werner said, “[W]e don’t
say ‘gay,’” or how the comment chilled the plaintiff from speaking about her sexuality. 	(ECF
No. 51 ¶ 142.) Nor has the plaintiff established that Bray’s direction that the plaintiff should not
discuss her sexuality was a ban on speech. In addition, the complaint does not sufficiently allege
that the defendants kept the plaintiff from talking about her sexuality. In fact, the plaintiff says in
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the complaint that after Bray’s comment, the plaintiff discussed sexuality with O.D. and her friends
at lunch. (Id. ¶ 178.) Moreover, the plaintiff does not allege that she wanted to talk about sexuality,
and that school officials kept her from doing so. 	(See id. ¶¶ 75, 127, 178.) 	Therefore, plaintiff
fails to state a First Amendment claim.
C. 	Equal Protection Claim
The plaintiff plausibly pleads an equal protection claim. 	The Fourteenth Amendment
Equal Protection Clause provides that a state may not “deny to any person within its jurisdiction
the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Sexual orientation discrimination
is actionable under the Equal Protection Clause. Windsor v. United States, 699 F.3d 169, 185 (2d
Cir. 2012). The plaintiff alleges that the defendants violated the Equal Protection Clause when the
told her that she “could not hug anyone,” but permitted and promoted hugging by other students.
(ECF No. 51 ¶ 378.) She also contends that the defendants deprived her of school services that
they gave to heterosexual students by failing prevent students from harassing her based on her
sexual orientation. (Id. ¶¶ 380–85.)
The plaintiff’s complaint about hugging does not state a plausible violation of the Equal
Protection Clause. An official violates the Equal Protection Clause by selectively enforcing rules
using “impermissible considerations” like race or religion. 	LaTrieste Rest. & Cabaret Inc. v.
Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994) (citation omitted). 	The plaintiff must
show that the official treated her differently “compared with others similarly situated.” LeClair v.
Saunders, 627 F.2d 606, 609–10 (2d Cir. 1980). As explained above, the plaintiff does not identify
a similarly situated student whom the school treated differently.
The plaintiff’s claim that the school deprived her of services that other students got states
a plausible claim for relief. In this Circuit, school administrators violate equal protection principles
if they act with deliberate indifference to peer harassment. Gant ex rel. Gant v. Wallingford Bd.
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of Educ., 195 F.3d 134, 140 (2d Cir. 1999). The plaintiff must show that: (1) she was “harassed
by other students based on” membership in a protected category, (2) the harassment was “actually
known” to defendants, and (3) the officials’ response was so “clearly unreasonable in light of the
known circumstances” as to create a reasonable inference that they intended the harassment to
occur. 	Cf. DiStiso v. Cook, 691 F.3d 226, 241 (2d Cir. 2012) (citation omitted) (race
discrimination); see T.J. v. Bd. of Educ. of Mt. Vernon City Sch. Dist., No. 17-CV-9592, 2019 WL
13170168, at *5–6 (S.D.N.Y. Sept. 30, 2019) (extending rule to sexual orientation); Doe v.
Torrington Bd. of Educ., 179 F. Supp. 3d 179, 194 (D. Conn. 2016) (sex). 	The standard for
deliberate indifference under the Fourteenth Amendment, accordingly, parallels the one in the Title
IX context. Gant, 195 F.3d at 140 n.5. An unreasonable reaction to peer bullying based on sex
and sexual orientation violates the Equal Protection Clause.
As explained above, the plaintiff’s peers subjected her to objectively offensive sexual
harassment. 	She alleges that students called her “disgusting” for being gay, exacerbating the
already hostile environment in the school. 	(ECF No. 51 ¶¶ 127, 178.) 	The plaintiff plausibly
establishes each defendant’s personal involvement. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994). She alleges that Zito knew about C.F.’s conduct, and did not respond adequately. (ECF
No. 51 ¶ 146.) 	Nor did he accommodate the plaintiff after her parents objected, in the DASA
complaint, to C.F.’s behavior and C.V. and G.L.’s comments about her sexuality. (Id. ¶¶ 225–34.)
Herrschaft rejected the plaintiff’s report that C.F. assaulted her on the bus because there were no
“cameras on the bus,” but ignored the plaintiff’s mother when she said that another student saw a
video of a different incident on the bus. (Id. ¶ 259.) Herrschaft also denied the plaintiff’s appeal
of Zito’s decision about C.V. and G.L.’s comments. (See id. ¶ 270.) Finally, the plaintiff alleges
that Zito’s and Farley’s responses to the plaintiff’s reports of sexual harassment on the bus were
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to say that they “didn’t know” what to do. 	(Id. ¶ 122.) 	Accordingly, the plaintiff plausibly
establishes that Herrschaft, Zito, and Farley acted with deliberate indifference to peer harassment
based on sex.
D. 	Qualified Immunity
Qualified immunity does not shield Herrschaft, Zito, and Farley against plaintiff’s equal
protection claim. 	In this Circuit, it is clearly established that “claims of intentional race
discrimination can be based on the ‘deliberate indifference’ of school boards, administrators, and
teachers” to peer harassment. 	DiStiso, 691 F.3d at 240–41. 	That rule also protects against
deliberate indifference to discrimination based on sex and sexual orientation. See Saulpaugh v.
Monroe Cmty. Hosp., 4 F.3d 134, 143–44 (2d Cir. 1993); Bruneau ex rel. Schofield v. S. Kortright
Cent. Sch. Dist., 163 F.3d 749, 758 (2d Cir. 1998) (recognizing, in dicta, right to “educational
environment free of sexual harassment”); see Windsor, 699 F.3d at 185 (identifying sexual
orientation as a quasi-suspect class); Pratt, 803 F. Supp. 2d at 153 & n.12 (finding that it violated
clearly established law to deliberately ignore sexual orientation discrimination). 	As explained
above, the plaintiff plausibly alleges that the defendants offered a clearly inadequate response,
evincing deliberate indifference, to her complaints of sex and sexual orientation discrimination.
E. 	Liability for Miller Place
The complaint sufficiently alleges Miller Place’s liability on the Equal Protection Clause
claim. 	Municipal entities, including school districts, may be held liable for a Section 1983
violation if a “policy or custom” violated plaintiff’s federal rights. Nagle v. Marron, 663 F.3d 100,
116 (2d Cir. 2011) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). A “policy
of inaction” given “notice that [a] program will cause constitutional violations ‘is the functional
equivalent of a decision by the” municipal entity. 	Connick v. Thompson, 563 U.S. 51, 61–62
(2011). 	For instance, Monell liability may run based on a subordinate’s “persistent and
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widespread” unconstitutional practices, if the conduct is “so manifest as to imply the constructive
acquiescence of senior policy-making officials.” Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864,
870–71 (2d Cir. 1992) (citation omitted). In this Circuit, a plaintiff may also prevail “by showing
that the policymaking official was aware of the employee’s unconstitutional actions and
consciously chose to ignore them.” Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012).
The plaintiff plausibly alleges that Miller Place’s “continuing failure” to discipline students
constitutes a custom of refusing to address her complaints. 	(ECF No. 51 ¶ 387.) 	She filed
“hundreds” of harassment reports to Zito, Farley, and Bray, of which district personnel were aware.
(Id. ¶ 303.) Zito and Farley got the reports. The plaintiff’s parents appealed their DASA complaint
to Lipshie and Herrschaft about C.F.’s “myriad comments on the bus,” the April 2023 assault, and
students’ “ongoing comments” about her sexuality. 	(Id. ¶¶ 117, 208, 213, 259–62, 295, 334.)
Herrschaft also interviewed the plaintiff and met with her mother. 	(Id. ¶¶ 258–59, 266.) 	The
plaintiff alleges that that he upheld the school’s decisions, which is sufficient at this stage of the
litigation to show that Miller Place knew that Laddie Decker had deliberately ignored sex and
sexual orientation harassment, and acquiesced in continuing to do so.
The allegations in this case are not about a “single incident.” 	Ricciuti v. N.Y.C. Transit
Auth., 941 F.2d 119, 123 (2d Cir. 1991). 	Rather, the complaint describes multiple incidents of
harassment and bullying over the course of years, about which the school district had “notice” and
did not meaningfully investigate.
On the other hand, the plaintiff has not sufficiently alleged an informal policy to suppress
First Amendment rights. As explained above, the comments from two teachers, not policy makers,
do not show a widespread district custom. Jones, 691 F.3d at 81.
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CONCLUSION
The defendants’ motion to dismiss plaintiff’s Title IX disparate treatment and retaliation
claims, and Section 1983 First Amendment claims is granted. Their motion to dismiss the Title
IX deliberate indifference and Section 1983 equal protection claims against Miller Place,
Herrschaft, Bray, and Farley is denied.
SO ORDERED.
Ann M. Donnelly
United States District Judge
Dated: December 3, 2025
Brooklyn, New York
s/Ann M. Donnelly
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