People of the State of New York v. Niagara-Wheatfield Central School District

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
PEOPLE OF THE STATE OF NEW YORK 	REPORT
BY LETITIA JAMES, NEW YORK STATE 	and
ATTORNEY GENERAL, 	RECOMMENDATION
Plaintiff, 	21-CV-00759JLS(F)
v.
NIAGARA-WHEATFIELD CENTRAL
SCHOOL DISTRICT,
Defendant.
______________________________________
APPEARANCES: 	LETITIA A. JAMES
ATTORNEY GENERAL, STATE OF NEW YORK
Attorney for Plaintiff
AMANDA MARIE MEYER, and
SANDRA ELIZABETH PULLMAN
Assistant Attorneys General, of Counsel
28 Liberty Street
15 th Street
New York, New York 10005
HARRIS BEACH PLLC
Attorneys for Defendant
DANIEL ROBERT LeCOURS, of Counsel
677 Broadway
Suite 1101
Albany, New York 12207
and
SVETLANA K. IVY, of Counsel
99 Garnsey Road
Pittsford, New York 14534
and
BRIAN CLINTON MAHONEY, and
TRACIE L. LOPARDI, of Counsel
Larkin at Exchange
726 Exchange Street
Suite 1000
Buffalo, New York 14210
,
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JURISDICTION
This case was referred to the undersigned by Honorable John L. Sinatra, Jr. on
October 6, 2021, for all pretrial matters including preparation of a report and
recommendation on dispositive motions. The matter is presently before the court on
Defendant’s motion for judgment on the pleadings (Dkt. 34), filed March 10, 2022.
BACKGROUND
On June 23, 2021, Plaintiff Letitia A. James, as Attorney General of the State of
New York, commenced this action on behalf of the People of the State of New York as
parens patriae (“Plaintiff”) seeking declaratory and injunctive relief to remedy alleged
violations by Defendant Niagara-Wheatfield Central School District (“Defendant”) of Title
IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. (“Title IX”), and
negligent supervision under New York common law. By letter dated August 24, 2021,
the Plaintiff and Defendant advised that Defendant consented to Plaintiff’s request to file
an amended complaint pursuant to Fed.R.Civ.P. 15(a)(2) (Dkt. 10). Accordingly, on
August 24, 201, Plaintiff filed an amended complaint (Dkt. 11) (“Amended Complaint”).
On October 1, 2021, Defendant filed an answer (Dkt. 14).
On March 10, 2022, Defendant filed the instant motion for judgment on the
pleadings (Dkt. 34) (“Defendant’s Motion”), attaching the Declaration of Brian C.
Mahoney[, Esq.] (Dkt. 34-1) (“Mahoney Declaration”), with exhibit A (Dkt. 34-2)
(“Defendant’s Exh. A”), and Defendant’s Memorandum of Law in Support of Its Motion
for Judgment on the Pleadings (Dkt. 34-3) (“Defendant’s Memorandum”). On April 7,
2022, Plaintiff filed Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion
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for Judgment on the Pleadings. (Dkt. 39) (“Plaintiff’s Response”). On April 21, 2022,
Defendant filed Defendant’s Reply Memorandum of Law in Further Support of Its Motion
for Judgment on the Pleadings (Dkt. 40) (“Defendant’s Reply”). Oral argument was
deemed unnecessary.
Based on the following, Defendant’s motion should be GRANTED and the Clerk
of Court directed to close the file. Alternatively, Defendant’s Motion should be DENIED.
FACTS1
This action, brought by the People of the State of New York by Letitia James, as
New York State Attorney General as parens patriae (“Plaintiff”), is predicated on alleged
assault and sexual harassment experienced by four students (“the student victims”)
while attending public schools within Defendant Niagara-Wheatfield Central School
District (“Defendant” or NWCSD” or “the school district”). According to Plaintiff,
Defendant ignored the student victims’ complaints of rape, assault, sexual harassment
and gender-based bullying, and failed to take any meaningful action against the
perpetrators of such conduct, which interfered with the students’ right to a public
education guaranteed under federal law and caused the students to suffer mental,
emotional, and physical injury. The four student victims, identified only by their initials,
include “T.G.,” “C.C.,” “A.S.,” and “L.W.”
T.G.
Plaintiff alleges that in May 2018, T.G. was raped by a male student, “E.D.,” while
in E.D.’s home. T.G. reported the incident to the police and E.D. was arrested. Prior to
1 Taken from the pleadings filed in this action.
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the start of the 2018-2019 school year, which was the senior year of high school for
both T.G. and E.D., T.G. obtained a restraining order preventing E.D. from coming near
her outside of school. T.G.’s mother informed Michael Mann (“Principal Mann”), then
the principal of the high school (“the high school”), attended by both T.G. and E.D., of
the restraining order. Although T.G. had no classes with E.D., T.G. maintains E.D.
repeatedly went out of his way to encounter T.G., frequently standing outside T.G.’s
classroom, waiting for T.G. to leave to room after which E.D. would glare at her. T.G.
notified the school counselor of these repeated interactions, but no corrective action
was taken. E.D. was permitted to continue playing sports but T.G., a cheerleader, was
not permitted to cheer at certain games after she spoke with the Assistant District
Attorney who was prosecuting the criminal rape case against E.D. Through the social
media application Snapchat as well as texts, T.G. received harassing messages and
was bullied about the criminal case being pursued against E.D., and despite showing
the messages to Principal Mann, no disciplinary action was taken against the students
who sent the messages. T.G. began skipping certain classes to avoid E.D. On May 23,
2019, E.D. pleaded guilty to third-degree rape with sentencing scheduled for July 2019.
T.G.’s mother informed the high school about E.D.’s guilty plea, but Principal Mann
informed T.G.’s mother that despite the plea, E.D. would be permitted to attend both
prom and graduation. Later that month, T.G.’s mother posted to social media about
Defendant’s failure to protect T.G. from her rapist during the school year, with many
parents noting their support in response to the post. To express their anger with the
high school’s handling of the incident, students at the high school organized and
attended a walkout (“the walkout”) on May 31, 2019. Principal Mann responded to the
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walkout by blocking the high school’s doorways to prevent participation by more
students. Several of the students who participated in the walkout received suspensions.
After the walkout gained national attention, Defendant expelled E.D. at the conclusion of
the school year.
C.C.
Plaintiff describes C.C. as a “tomboy” who, commencing in seventh grade, while
attending Defendant’s middle school (“the middle school”), dressed in stereotypically
male clothing, including hoodies. Amended Complaint ¶¶ 42-43. Throughout her years
attending the middle School, C.C. was bullied and called “transgendered” and “gay” by
fellow students. Id. Initially, C.C. went to the office of Dr. Peters, the middle school
counselor, where C.C. cried about the harassment, with Dr. Peters allowing C.C. to do
her school work in his office. After a while, Dr. Peters stopped helping C.C. and told her
to go back to her class. Upon entering the high school in ninth grade, C.C. began to
dress in more feminine clothing because of the harassment, but the bullying did not stop
and the bullies instead made comments that C.C. was “fat” and “ugly,” id. ¶ 45, with the
bullies on one occasion calling C.C. a “slut” and telling C.C. to kill herself. Id. ¶ 46.
Because of the harassment, C.C. started missing school. Despite C.C. and her family’s
repeated complaints about the bullying and harassment, Defendant took no action to
create a safety plan or otherwise protect C.C. from the bullying. C.C. attended
counseling with a counselor and a psychiatrist to deal with the anxiety and depression
caused by the harassment, but in December 2019, C.C. stopped attending the high
school, and sought to transfer to a neighboring school in Niagara Falls, New York, but
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Defendant refused to allow C.C. to transfer. C.C. then dropped out of school and never
graduated or received her high school diploma.
A.S.
As alleged in the Amended Complaint, while attending the high school, A.S. was
bullied and harassed by members of the high school’s football team and friends of the
football players including, inter alia, creating and distributing a TikTok video mocking
A.S. At a high school pep rally for the football team, the high school’s sophomore class
performed a chant mocking A.S. and five sophomore girls displayed a poster about A.S.
stating, “We don’t want you.” Amended Complaint ¶ 54. At the pep rally’s conclusion,
the five girls physically assaulted A.S., delivering eleven blows to her head.
Immediately following the assault, A.S.’s mother informed Jeff White (“Mr. White”), who
was then the high school’s acting principal, about what transpired at the pep rally with
regard to A.S. Mr. White observed there was a winter dance scheduled to be held at
the high school the next day, and that “it would be in A.S.’s best interest” if she did not
attend, but allowed the students who physically assaulted A.S. at the pep rally to attend.
Id. ¶ 56. Several days passed and, despite A.S.’s mother repeatedly contacting the
high school and NWCSD’s superintendent, no action was taken against the five girls
who assaulted A.S. Because A.S. was too afraid of returning to the high school, her
family enrolled her in a private school, requiring them to pay the private school’s tuition.
L.W.
In 2017, L.W., then attending second grade at Errick Road Elementary School
(“the elementary school”), was sexually assaulted in the housing complex by a neighbor
(“the assailant”) who was then attending fifth grade at the same elementary school.
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L.W.’s mother reported the assault to law enforcement authorities after which a court2
placed the assailant on probation, ordered the assailant’s family to move from L.W.’s
housing complex, and required L.W. receive therapy. L.W.’s mother informed the
elementary school’s principal, Nora O’Bryan (“Principal O’Bryan”), and NWCSD
superintendent Daniel Ljiljanich (“Superintendent Ljiljanich”) about the assault and court
proceedings, requesting the elementary school keep L.W. apart and safe from the
assailant. Superintendent Ljiljanich responded that because the assailant was entitled
to an education, NWCSD would not take any action, advising that L.W. and her mother
should move to protect L.W. from the assailant. The assailant continued to harass L.W.
at the elementary school where they had lunch at the same time every day, touching
L.W.’s arm when she walked by and telling L.W. that she was “damaged goods” and
that “no one will ever love you.” Amended Complaint ¶ 64. On one occasion, the
assailant followed L.W. into a bathroom at the elementary school and a teacher saw
L.W. run out of the bathroom. L.W.’s mother again attempted to contact Superintendent
Ljiljanich who did not return her calls, and also raised her concerns to Principal O’Bryan
who took no action to protect L.W. The assailant eventually moved out of the school
district,3 after which other students bullied L.W. based on false statements the assailant
made about L.W. As a result of the assault and continuing sexual harassment, L.W.
developed physical manifestations of stress and attended counseling for more than two
years.
2 The court is not further identified.
3 The record does not specify when the assailant moved out of the school district.
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Over the past few years, Defendant has been notified of more than thirty
additional incidents of sexual assault, harassment, or gender-based bullying, yet has
not created any written safety plan or documented any steps taken to ensure the safety
of any of the students. NWCSD never responded to an offer from the Rape Crisis
Program at the YWCA for the Niagara Frontier to provide educational programming on
domestic and dating violence and confidential advocacy for rape and sexual assault
victims. Plaintiff maintains the Rape Crisis Program is presented at every other school
district in Niagara County except NWCSD.
DISCUSSION
1. 	Judgment on the Pleadings
Defendant moves pursuant to Fed.R.Civ.P. 12(c) (“Rule 12__”), for judgment on
the pleadings. “‘The standard for granting a Rule 12(c) motion for judgment on the
pleadings is identical to that for granting a Rule 12(b)(6) motion for failure to state a
claim.’” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d Cir. 2021)
(quoting Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020)). “‘To survive a Rule
12(c) motion, [the plaintiff's] complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.’” Id. (quoting Hayden v.
Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (bracketed material in original)4). “‘The
assessment of whether a complaint's factual allegations plausibly give rise to an
entitlement to relief ... calls for enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of illegal conduct.’” Id. (quoting Lynch, 952 F.3d at 75
(internal quotation marks omitted)). In making this assessment, all reasonable
4 Unless otherwise indicated, bracketed material has been added.
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inferences must be drawn in the plaintiff’s favor. Id. (citing Johnson v. Rowley, 569 F.3d
40, 43 (2d Cir. 2009)). Like a motion under Rule 12(b)(6), a motion under Rule 12(c)
may be filed before discovery is complete. See Fed. R. Civ. P. 12(c) (permitting motion
“[a]fter the pleadings are closed—but early enough not to delay trial”). Nevertheless,
“[u]ntil both parties have an opportunity to test their evidence at summary judgment or
trial, we must accept the non-movant's pleading as true and decline to weigh competing
allegations asserted by the moving party.” Lively, 6 F.4th at 301.
“‘[J]udgment on the pleadings is not appropriate if there are issues of fact which if
proved would defeat recovery, even if the trial court is convinced that the party opposing
the motion is unlikely to prevail at trial.’” Lively, 6 F.4th at 301 (quoting Dist. No. 1, Pac.
Coast Dist., Marine Eng'rs Beneficial Ass'n v. Liberty Mar. Corp., 933 F.3d 751, 761
(D.C. Cir. 2019) (internal quotation marks omitted)); see also Richards v. Mitcheff, 696
F.3d 635, 637 (7th Cir. 2012) (explaining that dismissal under Rule 12(c) is appropriate
for self-defeating complaints—i.e., complaints “whose allegations show that there is an
airtight defense”). Accordingly, “where a ‘question [of fact] is in dispute, it [is] improper
for the district court to answer it on a motion for dismissal on the pleadings.’” Id., at 302
(quoting Sheppard v. Beerman, 18 F.3d 147, 151 (2d Cir. 1994); and citing 5C Charles
Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1367 (3d ed. 2021)
(“[J]udgment on the pleadings only has utility when all material allegations of fact are
admitted or not controverted in the pleadings and only questions of law remain to be
decided by the district court.”)). A court thus “may consider undisputed allegations of
fact on a Rule 12(c) motion under the same standard as Rule 12(b)(6), but it may not
use a motion for judgment on the pleadings to weigh disputed factual allegations.” Id.
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In considering a Rule 12(b)(6) motion, the Supreme Court requires application of
“a ‘plausibility standard,’ which is guided by ‘[t]wo working principles.’” Harris v. Mills,
572 F.3d 66, 71-72 (2d Cir. 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “First, although ‘a
court must accept as true all of the allegations contained in a complaint,’ that ‘tenet’ is
inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.’” Id. at 72 (quoting
Iqbal, 556 U.S. at 678). “‘Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss,’ and ‘[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.’” Id. (quoting Iqbal, 556 U.S.
at 679). To survive a motion for judgment on the pleadings, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim will have
‘facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’”
Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Ashcroft, 556 U.S.
at 678); see Twombly, 550 U.S. at 570 (the complaint must plead “enough facts to state
a claim to relief that is plausible on its face”). The factual allegations of the complaint
“must be enough to raise a right to relief above the speculative level on the assumption
that all the allegations in the complaint are true.” 	Twombly, 550 U.S. at 570.
“In ruling on a 12(b)(6) motion, and thus on a 12(c) motion, a court may consider
the complaint as well as ‘any written instrument attached to [the complaint] as an exhibit
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or any statements or documents incorporated in it by reference.’” Kalyanaram v.
American Ass'n of University Professors at New York Institute of Technology, Inc., 742
F.3d 42, 44 n. 1 (2d Cir. 2014) (quoting Yak v. Bank Brussels Lambert, 252 F.3d 127,
130 (2d Cir. 2001)) (bracketed material in original). On a motion for judgment on the
pleadings, “‘a court may consider ... matters of which judicial notice may be taken, [and]
documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied
on in bringing suit.’” Id. (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002) (internal quotation marks omitted; bracketed material and ellipses in
original)).
2. 	Title IX
“Title IX of the Education Amendments of 1972 (“Title IX”) was enacted to ‘avoid
the use of federal resources to support discriminatory practices’ and ‘to provide
individual citizens effective protection against those practices.’” New York v. United
States Dep't of Educ., 477 F. Supp. 3d 279, 288 (S.D.N.Y. 2020) (quoting Cannon v.
Univ. of Chicago, 441 U.S. 677, 704 (1979)). With certain exceptions not relevant here,
Title IX provides
[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).
Title IX defines “program or activity” in relevant part as “all of the operations” of a school
or covered entity, “any part of which is extended Federal financial assistance.” 20
U.S.C. § 1687. Sexual harassment, including student-on-student sexual harassment, is
a “form of discrimination prohibited by Title IX” for which a school district receiving
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federal funding can be liable under Title IX. A.S. v. City School District of Albany, __
F.Supp.3d __; 2022 WL 356697, at ** 18-19 (N.D.N.Y. Feb. 7, 2022) (quoting Posso v.
Niagara Univ., 518 F.Supp.3d 688, 696 (W.D.N.Y. 2021) (citing Davis v. Monroe County
Bd. of Ed., 526 U.S. 629, 649-50 (1999))).
Title IX’s dual purposes may be enforced through federal administrative agencies
that disburse funding and “Congress expressly authorized an administrative
enforcement scheme for Title IX. The DOE is authorized to promulgate rules,
regulations, and orders, and may use ‘any ... means authorized by law,’ including the
termination of funding, to effectuate the statute's restrictions.” New York v. United
States Dep't of Educ., 477 F. Supp. 3d 279, 288 (S.D.N.Y. 2020) (quoting Davis, 526
U.S. at 638-39 (citation omitted). Further, although Title IX “does not expressly speak to
a remedy in private litigation, the Supreme Court has held that Title IX may also be
enforced by a judicially implied private right of action . . . .” Id. (citing Cannon, 441 U.S.
at 709). In such “cases alleging intentional discrimination, money damages are
available as a remedy . . . .” Id. (citing Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60,
76 (1992).
Preliminarily, the court considers Defendant’s argument that Plaintiff lacks
standing to bring the Title IX claim as parens patriae.
A. 	Standing
Generally, “the doctrine of standing ‘requires federal courts to satisfy themselves
that the plaintiff has alleged such a personal stake in the outcome of the controversy as
to warrant [the] invocation of federal-court jurisdiction.’” New York by Schneiderman v.
Utica City School Dist., 177 F.Supp.3d 739, 745 (N.D.N.Y. 2916) (“Utica CSD”)
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(bracketed material in original) (quoting Summers v. Earth Island Inst., 555 U.S. 488,
493 (2009)). The plaintiff must support each element of standing “‘with the manner and
degree of evidence required at the successive stages of the litigation.’” Id. (quoting
Carver v. City of New York, 621 F.3d 221, 225 (2d Cir. 2010)). The Constitution’s
standing requirement, U.S.Const. Art. III, § 2, cl. 1, is a limitation on federal judicial
authority to adjudicate only actual “cases” and “controversies,” and requires a plaintiff
“show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan
v. Defendants of Wildlife, 504 U.S. 555, 560-61 (1992)). In the absence of any explicit
statutory authority to bring an action, the New York State Attorney General has standing
to pursue a claim on behalf on New York’s citizens only if the requirements for parens
patriae standing are established. See Connecticut v. Physicians Health Services of
Connecticut, Inc., 287 F.3d 110, 121 (2d Cir. 2002) (“‘states have frequently been
allowed to sue in parens patriae to . . . enforce federal statutes that . . . do not
specifically provide standing for state attorney generals.’” (quoting New York ex rel
Vacco v. Mid Hudson Med. Group, P.C., 877 F.Supp.143, 146 (S.D.N.Y. 1995) (“Mid
Hudson Med. Grp.”)).
In the instant case, New York State Attorney General Letitia James brings this
action pursuant to parens patriae authority defined as “the common-law principle that a
sovereign, as parent of the country, may step in on behalf of its citizens to prevent injury
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to those who cannot protect themselves.” Utica CSD, 177 F.Supp.3d 739, 745
(N.D.N.Y. 2916). “[A] state may invoke the doctrine of parens patriae if it (1) articulates
a ‘quasi-sovereign interest’ apart from the interests of particular private parties; (2)
alleges a concrete injury to a substantial segment of its population; and (3)
demonstrates that complete relief from that injury could not be obtained by individuals in
a private lawsuit.” Id. at 748 (citing People v. Peter & John’s Pump House, Inc., 914
F.Supp. 809, 811-12 (N.D.N.Y. 1996) (“Peter & John’s Pump House”). Defendant does
not challenge Plaintiff’s ability to meet the first and third requirements for parens patriae
standing, but only the second, i.e., a concrete injury to a substantial segment of its
population.5
In particular, Defendant does not deny that the victims of the alleged sexual
harassment sustained concrete injuries as a result of the harassment, but argues
Plaintiff cannot establish such injury to a substantial segment of the population because
Plaintiff does not allege a pattern of Title IX violations but, rather, “a scattering of
alleged factually-disparate student-on-student incidents, over a 3-year period, many of
which occurred off school grounds and/or when school was not in session.”
Defendant’s Memorandum at 6-9. Defendant further argues that Plaintiff “has cherry-
picked four unrelated and isolated cases of alleged student-on-student harassment in
an attempt to establish parens patriae standing,” Defendant’s Memorandum at 9, and
Plaintiff’s “allegations of speculative future harm to a larger segment of the student
5 The court takes judicial notice that on March 2, 2022, T.G. filed a separate action in this court, 22-CV-
00172-JLS-MJR, asserting essentially the same Title IX and negligent supervision claims, against
NWCSD, seeking compensatory damages. See Bristol v. Nassau County, 685 Fed.Appx. 26, 28 (2d Cir.
2017) (taking judicial notice of decisions in related state criminal proceedings as “self-authenticating,
publicly available records” satisfying Fed.R.Evid. 201(b)(2) (specifying facts of which judicial notice may
be taken).
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population do not rise to the level of an alleged injury to a sufficiently substantial
segment of the population.” Id. at 10. In opposition, Plaintiff argues it has met its
burden to plead a substantial segment of the population is affected by Defendant’s
discrimination and negligence based on gender because the four examples provided in
the Amended Complaint are not isolated events, but are illustrative of Defendant’s
overall policy and practice of indifference for which Defendant has failed to take any
steps to prevent or respond to future sexual assaults. Plaintiff’s Response at 18-24. In
further support of judgment on the pleadings, Defendant argues each of the cases on
which Plaintiff relies involved a policy or practice of discriminatory conduct specifically
targeting a discrete segment of the population whereas, in the instant case, Plaintiff has
alleged injury to only the four individual student victims which is insufficient to confer
parens patriae standing. Defendant’s Reply at 2-3.
In analyzing the second factor, i.e., requiring a concrete injury to a substantial
segment of its population, “[t]here is no numerical talisman to establish parens patriae
standing. . . .” Peter & John’s Pump House, 914 F.Supp. at 812. “Although more must
be alleged than injury to an identifiable group of individual residents, the indirect effects
of the injury must be considered as well in determining whether the State has alleged
injury to a sufficiently substantial segment of its population.” Alfred L. Snapp & Son, Inc.
v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982) (“Snapp”). “One helpful
indication in determining whether an alleged injury to the health and welfare of its
citizens suffices to give the State standing to sue as parens patriae is whether the injury
is one that the State, if it could, would likely attempt to address through its sovereign
lawmaking powers.” Id. See also People by Abrams v. 11 Cornwell Co., 695 F.2d 34,
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39-40 (2d Cir. 1982) (“11 Cornwell Co.”) (stating the plaintiff State of New York “ha[d]
alleged injury to a sufficiently substantial segment of the population” to establish parens
patriae standing because “were this kind of incident to be tolerated and left without
redress, countless others would be affected”), vacated in part on other grounds, 718
F.2d 22 (2d Cir. 1983). The State must allege injury “to more than an identifiable group
of individual residents,” as well as “a ‘practice and policy’ of discrimination,’ which
necessarily involves a larger group of patrons.” Peter & John’s Pump House, 914
F.Supp. at 813. In alleging an injury to a substantial segment of the population, the
State’s “‘use of a small group of ‘aggrieved persons’ as exemplars for a larger class is
neither new nor objectionable . . . .” Id. (quoting People by Vacco v. Mid Hudson
Medical Grp., 877 F.Supp. 143, 147 (S.D.N.Y. 1995) (finding parens patriae standing
where the state alleged that a hospital discriminated against its seven to ten hearing-
impaired patients because the effect of the discrimination “threatens all hearing
impaired citizens and perhaps disabled citizens throughout New York.”). Further,
“[a]lthough more must be alleged than injury to an identifiable group of individual
residents, the indirect effects of the injury must be considered as well in determining
whether the State has alleged injury to a sufficiently substantial segment of its
population.” Snapp, 458 U.S. at 607. In the instant case, Plaintiff fails to establish that
the alleged sexual harassment and discrimination of the four student victims within the
NWCSD sufficiently establishes injury to a substantial segment of New York’s
population.
In particular, the Amended Complaint contains allegations pertaining to only the
four student victims who attended schools within the NWCSD between 2017 and 2020,
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which Plaintiff maintains are illustrative examples of Defendant’s widespread failure to
address and prevent gender-based harassment and sexual assault of students in
violation of Title IX, asserting there are at least 30 additional “‘documented incidents of
sex discrimination, sexual harassment, sexual assault, or gender-based bullying’” within
the NWCSD, yet NWCSD has failed to create any written safety plan or made any
effort, despite rape, physical assault, and harassment of students, to keep students safe
and to prevent or respond to future assaults. Plaintiff’s Response at 20-22 (quoting
Amended Complaint ¶5, and citing id. ¶¶ 69-70, 72). Such conclusory and unsupported
allegations of conduct in violation of Title IX fail to support a plausible Title IX claim.
See Harris, 572 F.3d at 72 (providing a court is not required to accept as true
allegations that are no more than “legal conclusions” and “threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements”). Moreover,
the cases Plaintiff references in support of its argument that the alleged Title IX
violations significantly affect a substantial percentage of the population for parens
patriae standing, including 11 Cornwell Co., Utica CSD, Peter & John’s Pump House,
Mid Hudson Med. Grp., and Support Ministries for Persons with AIDS, Inc. v. Village of
Waterford, New York, 799 F.Supp. 272 (N.D.N.Y. 1992) (“Support Ministries”), are
inapposite.
In 11 Cornwell Co., the Second Circuit held that a partnership of neighborhood
property owners who acquired and then failed to sell to the State a residence which
would house up to ten mentally challenged adults affected a sufficiently substantial
segment of New York's population to confer parens patriae standing upon the State of
New York. 11 Cornwell Co., 695 F.2d at 39–40. According to the court, the defendant
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partnership’s discriminatory conduct affected not just the ten mentally challenged
persons who would initially occupy the residence, but “similar people in years to come .
. . .” Id.
Utica CSD concerned a policy and practice pursuant to which district officials
routinely forced all immigrant students aged 17-20 who sought to enroll at the school
district’s only public high school into an alternative program intended to accommodate
students who were considered to be “limited English proficiency” (“LEP”), without first
determining whether such students’ English-speaking ability was in fact limited. Utica
CSD, 177 F.Supp.3d, 744. The numerosity requirement was found sufficient because
the 25% of the city’s population that spoke a language other than English at home was
considered to be a “relatively large and still growing population of LEP children of
immigrant families that reside within the District,” and thus affected by the defendant’s
policy. Id. at 748.
In Peter & John’s Pump House, the State sued a night club alleging the club
employed discriminatory policies and practices aimed at preventing admission to African
Americans by requiring presentation of proof of age and imposing a dress code on
African Americans but not on white patrons. Peter & John’s Pump House, 914 F.Supp.
at 811. Although the complaint provided eight examples of the defendant’s alleged
discriminatory conduct involving 16 individuals over an eight-month period, the court
found the substantial segment requirement for parens patriae standing was met
because the allegations involved “generalized discrimination against potential nightclub
patrons,” the alleged discrimination affected a large population, and there was “no
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accurate method to determine how many African Americans may have been denied
access to the Club because of their race.” Id. at 813.
At issue in Mid Hudson Med. Grp. was whether the defendant hospital ‘s failure
to provide interpretive services for its hearing impaired patients affected a substantial
segment of New York’s population. Mid Hudson Med. Grp., 877 F.Supp. at 147.
Because the plaintiff supplied data indicating the deaf population of New York may be
as high as 7 %, the court extrapolated that the defendant’s alleged discriminatory
conduct affected a substantial segment of the State. Id. at 148.
Finally, in Support Ministries, New York challenged as arbitrary and unlawful
discrimination a local village ordinance denying zoning approval for a residence for
homeless persons afflicted with AIDS. Support Ministries, 799 F.Supp. at 275, 278. In
finding the State alleged the Defendant’s conduct posed a significant risk of harm to a
substantial segment of the population, the court considered that although the proposed
residence intended to provide housing for only 15 homeless persons with AIDS at one
time, it was anticipated that other homeless persons with AIDS would be housed there
in the future because the population of homeless people with AIDS was “not
insubstantial and is ever increasing.” Id. at 277. On this basis, the court found the
alleged discriminatory conduct affected a substantial segment of the population for
purposes of parens patriae standing. Id. at 278.
It is significant that there is a common thread in the cases on which Plaintiff
relies, to wit, that in each referenced case, the alleged discriminatory conduct, policy, or
practice would have routinely been enforced against a member of the targeted
population. For example, in Peter & John’s Pump House, the State alleged that any
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African American who attempted to gain entry into the defendant nightclub would have
been required to present proof of age and comply with a dress code, a policy which was
not enforced with regard to white patrons. In contrast, in People of the State of New
York v. Holiday Inns, Inc., 656 F.Supp. 675 (W.D.N.Y. 1984) (“Holiday Inns”), the State,
suing as parens patriae, alleged claims against the defendant for age and gender
discrimination in violation of federal and state employment laws based on the
defendant’s practices in hiring and discharging employees. Holiday Inns, 656 F.Supp.
at 677. The court found the State’s “assertions that countless other employees may be
subjected to defendants' discriminatory practice of discharging older employees and
that younger employees and customers of defendants would be deprived of the
opportunity to work with or be served by employees of all ages” failed to allege an injury
to a substantial segment of New York’s population. Id. (italics in original). In other
words, the asserted injury attributed to the defendant’s alleged discriminatory practice
against other employees was speculative.
In the instant case, there Amended Complaint does not plausibly allege that
Defendant maintains a policy or practice that Defendant necessarily would fail to take
any corrective action in response to any student attending a school within the NWCSD
who complains about gender-based harassment and sexual assault, or that having a
written safety plan would necessarily prevent such conduct by other students within
NWCSD. See Snapp, 458 U.S. at 607 (“more must be alleged than injury to an
identifiable group of individual residents”). Nor is Plaintiff’s conclusory assertion that
more than 30 additional incidents of sexual assault and gender-based harassment
sufficient to establish concrete injury. Utica CSD, 177 F.Supp.3d at 748 (parens patriae
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standing requires “a concrete injury to a substantial segment of its population”).
Accordingly, Defendant’s Motion should be GRANTED as to Plaintiff’s Title IX claim for
failure to establish the substantial segment requirement for parens patriae standing.
Alternatively, should the District Judge disagree with the determination that
Plaintiff has failed to allege Defendant’s violation of Title IX resulted in injury to a
substantial segment of the population, judgment on the pleadings should nevertheless
be granted because Plaintiff cannot allege the requisite injury to establish a valid case
or controversy. In particular, Plaintiff seeks only declaratory and injunctive relief.
Amended Complaint, Prayer for Relief. “It goes without saying that those who seek to
invoke the jurisdiction of the federal courts must satisfy the threshold requirement
imposed by Article III of the Constitution by alleging an actual case or controversy.” City
of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (citing cases). Significantly, the
plaintiff must have a “personal stake in the outcome.” Id.
In the instant case, Plaintiff’s allegations of past injury alone do not suffice to
establish an injury in fact for a plaintiff seeking declaratory or injunctive relief. See Levin
v. Harleston, 966 F.2d 85, 90 (2d Cir. 1992); Golden v. Zwickler, 394 U.S. 103, 109-10
(1969). Abstract injury is not enough; rather, the plaintiff must show that it “has
sustained or is immediately in danger of sustaining some direct injury” as the result of
the challenged official conduct and the injury or threat of injury must be both “real and
immediate,” not “conjectural” or “hypothetical.” Lyons, 461 U.S. at 101-02. See
Farmland Dairies v. McGuire, 789 F. Supp. 1243, 1250 (S.D.N.Y. 1992) (a plaintiff must
allege a “real and immediate threat that the injury will be continued or repeated”). “To
have Article III standing to sue in federal court, plaintiffs must demonstrate, among other
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things, that they suffered a concrete harm. No concrete harm, no standing.”
TransUnion LLC v. Ramirez, __ U.S. __, 141 S. Ct. 2190, 2200 (2021) (citing Spokeo,
Inc. v. Robins, 578 U.S. 330, 340 (2016)). “Central to assessing concreteness is
whether the asserted harm has a ‘close relationship’ to a harm traditionally recognized
as providing a basis for a lawsuit in American courts—such as physical harm, monetary
harm, or various intangible harms including . . . reputational harm.” Id. (quoting Robins,
578 U.S. at 341.
In the instant case, Plaintiff cannot pursue injunctive relief requiring policy
changes by NWCSD under Title IX with regard to any student who has graduated or
otherwise left the school district because no such victim could benefit from the relief
sought. A.S. v. City Sch. Dist. of Albany, 2022 WL 356697, at *26 (N.D.N.Y. Feb. 7,
2022) (citing Cook v. Colgate University, 992 F.2d 17, 19 (2d Cir. 1993), and B.C. v.
Mount Vernon Sch., Dist., 660 Fed.Appx. 93, 96 (2d Cir. 2016)). Because T.G. has
graduated from high school, C.C. dropped out of school, and A.S. transferred to a
private school, Plaintiff cannot benefit from any changes to Defendant’s policies as to
those victims. Further, with regard to L.W. who was in second grade in 2017 and, thus,
unlikely to have graduated from high school, not only does the Amended Complaint fail
to allege whether L.W. remains a student within NWCSD, but the Amended Complaint
also fails to allege L.W. continues to experience any sexual assault or gender-based
bullying or harassment. Thus, insofar as the Amended Complaint seeks injunctive relief
changing NWCSD’s policies or practices, Plaintiff lacks standing to pursue such relief.
Defendant’s Motion thus should be granted for lack of standing.
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B. 	Elements of Title IX Claim
Should the District Judge disagree that Plaintiff’s Title IX claim should be
dismissed for lack of standing based on a failure to establish the parens patriae
doctrine’s injury to a substantial segment of the population requirement, or because the
declaratory and injunctive relief sought is not available in the circumstances in which
this action is brought, the court alternatively considers whether Defendant should be
granted judgment on the pleadings based on the elements of the Title IX claim.6
Plaintiff contends that the District violated Title IX by acting with deliberate indifference
to sexual harassment toward T.G., C.C., A.S. and L.W., which resulted in excluding the
four student victims from meaningful participation at schools within NWCSD. As stated,
relevant to the instant case, Title IX provides “[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 elements for a Title IX student-on-
student sexual harassment claim include “that ‘(1) a federally funded educational
institution (2) was deliberately indifferent to and (3) had actual knowledge of (4) sexual
harassment that was so severe, pervasive, and objectively offensive that it could be
said to have deprived the plaintiff of access to the educational opportunities or
6 Although in Cannon, the Court recognized Title IX may be enforced by a judicially implied private right of
action, Cannon, 441 U.S. at 709, whether such private right of action includes an action brought by a
state as parens patriae as in the instant case was not addressed. Further, Cannon recognized the
implied right of action only for monetary damages for intended beneficiaries of federal financial support for
education, id., in contrast to the instant action where Plaintiff seeks only declaratory and injunctive relief.
See Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011) (recognizing the Supreme Court “strictly
curtail[s] the authority of the courts to recognize implied rights of action . . . .” (citing Alexander v.
Sandoval, 532 U.S. 275, 286-87 (2001)). In the instant case, the Amended Complaint fails to allege the
Attorney General, acting in parens patriae, is a beneficiary of federal financial support within the scope of
Title IX. Cannon, 441 at 709.
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benefits.’” A.S. v. City Sch. Dist. of Albany, 2022 WL 356697, at *19 (N.D.N.Y. Feb. 7,
2022) (quoting Roskin-Frazee v. Columbia Univ., 2018 WL 6523721, at *4 (S.D.N.Y.
Nov. 26, 2018) (citing Davis, 526 U.S. at 650)); Posso, 518 F.Supp. 3d at 696 (same).
See also AA by BB v. Hammondsport Cent. Sch. Dist., 527 F. Supp.3d 501, 510–11
(W.D.N.Y. 2021) (describing the elements for student-on-student harassment claims
under Title IX as including “(1) school authorities had actual knowledge of the
harassment or the risk thereof; (2) they were deliberately indifferent to it; and (3) the
harassment was so ‘severe, pervasive, and objectively offensive’ that it deprived the
student of access to the educational opportunities and benefits provided by the school.”
(quoting Carabello v. New York City Dept. of Educ., 928 F. Supp.2d 627, 638 (E.D.N.Y.
2013)).
Acknowledging “the inevitability of student misconduct” and the “practical realities
of responding to student behavior,” the Supreme Court has explained that this standard
will not be met by “simple acts of teasing and name-calling,” nor will it be met by a
“single instance of one-on-one peer harassment” unless the instance is “serious enough
to have the systemic effect of denying the victim equal access to an educational
program or activity.” Davis, 526 U.S. at 652-53. As such, when analyzing whether the
conduct alleged meets the “severe, pervasive, and objectively offensive” requirement,
the “constellation of surrounding circumstances, expectations, and relationships” must
be considered to determine whether the conduct alleged was sufficiently severe,
sufficiently frequent or pervasive, or both, to have denied the victim equal access to
educational opportunities. Davis, 526 U.S. at 630 (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 82 (1998)). Additionally, a school has actual
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knowledge of harassment when a school official with “authority to address the alleged
discrimination and to institute corrective measures” has actual knowledge of the
discrimination. Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89
(2d Cir. 2011). Further, a school is deliberately indifferent to sexual harassment when
its response is “clearly unreasonable in light of the known circumstances.” Davis, 526
U.S. at 648–49. In the instant case, the parties do not dispute that NWCSD is a
federally funded educational institution as required for the first element of a Title IX
claim. Accordingly, the court addresses only the remaining three elements as to each
of the student victims.
With regard to T.G., the rape by E.D. occurred outside of NWCSD property.
Nevertheless, at the start of the school year following the rape, T.G. obtained a
restraining order preventing E.D. from coming near her outside of school, and T.G.’s
mother informed the then high school principal Mann of the restraining order. Despite
being aware of the restraining order, E.D. repeatedly went out of his way in school to
encounter T.G. who notified the school counselor of these repeated interactions, but no
corrective action was taken. T.G. was also repeatedly subjected to harassment through
social media, yet even after showing the messages to Principal Mann, no disciplinary
action was taken against E.D. or the students who sent the messages. T.G. eventually
began skipping certain classes to avoid E.D. Even after T.G.’s mother informed the
high school about E.D.’s guilty plea in May 2019 to third-degree rape Principal Mann
informed T.G.’s mother that despite the plea, E.D. would be permitted to attend both
prom and graduation. It was not until May 31, 2019, when high school students, to
express their anger with the high school’s handling of the incident, organized a walkout
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that garnered national media attention, that Defendant expelled E.D. at the conclusion
of the school year. Defendant’s alleged failure to protect T.G. from continued
harassment from her attacker, E.D., and other students who sided with E.D., after being
made aware of the rape for which E.D. was being criminally prosecuted, that T.G. had
obtained a restraining order preventing E.D. from coming near T.G., and the
subsequent harassment T.G. endured by other students both in person and over social
media, such that T.G. began skipping classes, as well as the decision that T.G., after
speaking with the prosecutor handling the criminal action against E.D., should not be
permitted to cheer at certain games, can be construed as establishing Defendant was
deliberately indifferent to the harassment T.G. endured throughout her senior year. See
AA by BB, 527 F.Supp.3d at 510-13 (denying defendant school district’s motion to
dismiss Title IX claim for student-on-student harassment where the defendant school
district “received notice of the [initial] harassing conduct, it had a duty under Title IX to
take some action to prevent the further harassment” such that the defendant’s failure to
do so was “clearly unreasonable” in light of the assailant’s openly mocking and ridiculing
the victim in front of other students and recruiting other students to do likewise). See
also Doe ex rel, A.N. v. East Haven Bd. of Education, 430 F.Supp.2d 54, 60 (D.Conn.
2006) (plaintiff student prevailed on Title IX claim where victim student was raped by
two other students off school property, after which the victim was sexually harassed by
classmates at school for three months). Accordingly, Plaintiff meets the criteria for
plausibly pleading a Title IX claim with regard to T.G.
Turning to C.C. who, in middle school, dressed in stereotypically male clothing,
for which she was bullied and called “transgender” and “gay,” and upon entering high
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school began to wear more feminine clothing following which she was bullied and called
“fat,” “ugly,” and a “slut” and urged to kill herself, both Dr. Peters, the middle school
counselor, as well the superintendent were aware of the bullying, yet took no steps to
stop the harassment and ever refused to allow C.C. to transfer to a different school to
escape the bullying. C.C. attended counseling to deal with the stress caused by the
harassment but, in December 2019, after C.C. failed to obtain any relief from the
bullying and was not allowed to attend a different school, C.C. dropped out of school
and never graduated high school. Courts within the Second Circuit have found the
continuous bullying related to a student’s sexuality can be sufficiently “severe,
pervasive, and objectively offensive,” Davis, 526 U.S. at 653, to support a Title IX claim.
See, e.g., Estate of D.B. v. Thousand Islands Central School District, 169 F.Supp.3d
320, 332-33 (N.D.N.Y. 2016) (recognizing Tilte IX claim for harassment based on sexual
orientation); Doe ex rel, A.N., 430 F.Supp.2d at 60 (affirming jury verdict against
defendant school district on Title IX claim where victim student was sexually harassed
by classmates for three months after being sexually assaulted by two other students).
The allegations with regard to C.C. thus are sufficient to plausibly establish a Title IX
claim.
The allegations regarding A.S. include that while attending the high school, A.S.
was bullied and harassed by members of the high school’s football team and friends of
the football players including creating and distributing through social media a video
mocking A.S, performing a chant at a high school pep rally mocking A.S, displaying a
poster conveying that A.S. was not wanted and physically assaulting A.S., striking A.S.
on the head eleven times. Although A.S. immediately informed Mr. White, the then high
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school acting principal about the assault, White’s response was to advise A.S. not to
attend an upcoming school dance which A.S.’s attackers were allowed to attend. A.S.’s
mother made additional calls to the high school, as well as to the NWCSD’s
superintendent, but no disciplinary action was ever taken with regard to the assailants.
Because A.S. was too afraid to return to the high school, her family enrolled A.S. in a
private school for which they had to pay tuition. Again, Defendant is alleged to have
had actual knowledge of the harassment toward A.S., yet refused to take any action to
stop the harassing conduct, such that A.S. did not feel safe returning to the high school.
Although it is not clear whether Defendant had knowledge of the harassment A.S.
encountered prior to the assault, Defendant’s subsequent knowledge that A.S. endured
an attack by five classmates during which A.S. was struck in the head eleven times is
sufficiently severe “to overcome the lack of pervasiveness for purposes of Title IX
liability . . .” and placed Defendant on notice that A.S.’s assailants posed a substantial
risk of harm to A.S., such that the school environment for A.S. was sufficiently hostile
that Defendant’s failure to take any corrective action deprived A.S. of educational
opportunities. See AA by BB, 527 F.Supp.3d at 512 (after receiving notice of the initial
harassing conduct, the defendant school district had a duty under Title IX to take action
to prevent further harassment in a manner not clearly unreasonable). The claim is
therefore plausibly alleged as to A.S.
The allegations are also sufficient to establish a Title IX claim with regard to L.W.
who, in 2017, was in second grade when she was sexually assaulted by a neighbor
then attending fifth grade at the same elementary school. Although L.W.’s mother
informed Principal O’Bryan, then the elementary school’s principal, and NWCSD
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Superintendent Ljiljanich about the assault and the court proceedings, including that the
assailant was on probation, the assailant’s family was ordered to move from L.W.’s
housing complex, and that L.W. receive therapy, Superintendent Ljiljanich responded
that NWCSD would take no action to protect L.W. from the assailant who was entitled to
an education, suggesting to L.W.’s mother that she should move to a different school to
protect L.W. The assailant then continued to both physically and verbally harass L.W.
at the elementary school where they had lunch at the same time every day, even
following L.W. into the bathroom. L.W.’s mother’s further attempts to contact
Superintendent Ljiljanich and Principal O’Bryan were futile. After the assailant
eventually moved out of the school district, other students at the elementary school
bullied L.W. based on false statements the assailant made about L.W., and the assault
and continuing sexual harassment caused L.W. to develop physical manifestations of
stress for which L.W. attended counseling for more than two years. These allegations
support sufficiently “severe, pervasive, and objectively offensive” conduct to place
Defendant on notice that L.W. faced a substantial risk of harm from the environment at
the elementary school for purposes of establishing a Title IX claim. See AA by BB, 527
F.Supp.3d at 510-13 (defendant school district’s receipt of notice of student-on-student
harassment imposes duty to take reasonable action to prevent further harassment); Doe
ex rel, A.N., 430 F.Supp.2d at 60 (off-campus rape of plaintiff student followed by on-
campus sexual harassment for three months by classmates established Title IX claim).
Accordingly, the allegations pertaining to L.W. plausibly establish a Title IX claim for
student-on-student harassment.
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Accordingly, the record does not support judgment for Defendant based on the
pleadings.
3. 	Negligent Supervision
A. 	Supplemental Jurisdiction over State Claim
Should the District Judge agree with the recommendation that the Title IX claim
be dismissed for lack of standing, the dismissal of all federal claims leaves the decision
whether to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c) over the
remaining state claims a matter within the court's discretion. See Valencia ex rel.
Franco v. Lee, 316 F.3d 299, 304-05 (2d Cir. 2003) (reviewing for abuse of discretion
federal district court's decision to decline exercising supplemental jurisdiction over state
law claims after all federal law claims have been eliminated prior to trial). In discerning
whether to exercise supplemental jurisdiction after dismissal of all federal claims, courts
must balance judicial economy, convenience, fairness, and comity. Id. (citing Carnegie-
Mellon University v. Cohill, 484 U.S. 343, 349-50 (1988)). In the instant case, insofar as
Plaintiff asserts a state law claim for negligent supervision, the court should refrain from
exercising supplemental jurisdiction over the state claim because the federal Title IX
claim has been dismissed and the state claim raises, as in this case, complex questions
as to the scope of the state claim. See Shahriar v. Smith & Wollensky Restaurant
Group, Inc., 659 F.3d 234, 245 (2d Cir. 2011) (citing 28 U.S.C. § 1367(c)). Alternatively,
the court addresses whether the Amended Complaint sufficiently establishes a common
law negligent supervision claim.7
7 The court notes the same “plausibility” standard applies to its review of Plaintiff’s state common law
claim. See Khan v. Yale University, 27 F.4th 805, 817 (2d Cir. 2022) (reviewing dismissal of state law
claim for plausibility pursuant to Rule 12(b)(6)).
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B. 	Elements of Negligent Supervision Claim
Preliminarily, as discussed, the court initially recommends dismissal of the Title
IX claim for lack of jurisdiction, see Discussion, supra, at 22, and with the dismissal of
the Title IX claim before the court on federal subject matter jurisdiction, given the early
stage of the instant action, the court should refrain from exercising supplemental
jurisdiction over Plaintiff’s negligent supervision claim pursuant to New York common
law. See Discussion, supra, at 30. Alternatively, the court addresses whether
Defendant is entitled to judgment on the pleadings on the negligent supervision claim in
the interest of completeness should the District Judge disagree with the
recommendation that the matter be dismissed in its entirely for lack of jurisdiction on the
Title IX claim.
Under New York law, “[s]chools are under a duty to adequately supervise the
students in their charge and they will be held liable for foreseeable injuries proximately
related to the absence of adequate supervision.” Carabello v. New York City Dep't of
Educ., 928 F. Supp. 2d 627, 646 (E.D.N.Y. 2013). “The attendant duty of care has been
described as that of a ‘reasonably prudent parent,’ and as such, ‘school personnel
cannot reasonably be expected to guard against all of the sudden, spontaneous acts
that take place among students daily ... absent proof of prior conduct that would have
put a reasonable person on notice to protect against the injury-causing act.’” AA by BB,
527 F. Supp.3d at 507 (quoting Mirand v. City of New York, 637 N.E.2d 263, 266 (N.Y.
1994)).
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In the instant case, Defendant argues Plaintiff’s negligent supervision claim is
deficient with regard to each of the four student victims because Plaintiff has failed to
allege Defendant had sufficient specific knowledge or notice of the dangerous conduct
to which each student was subjected. Defendant’s Memorandum at 17-18. Defendant
further maintains the injunctive relief Plaintiff seeks is not available on the negligent
supervision claim. Id. at 21-22. In opposition, Plaintiff argues it has sufficiently alleged
Defendant violated its duty to adequately supervise its students because Defendant had
specific knowledge and notice of the alleged harmful behavior, Plaintiff’s Response at
14-15, as well as that Defendant’s negligence in failing to address the harmful behavior
proximately caused the victims’ injuries. Id. at 15-16. Plaintiff also maintains it may
seek injunctive relief to redress its negligent supervision claim. Id. at 16-18. In further
support of its motion, Defendant repeats the argument that Plaintiff failed to plead
sufficient knowledge or notice of the dangerous conduct suffered by the four student
victims to support a negligent supervision claim, Defendant’s Reply at 8-9, and that
while Plaintiff seeks injunctive relief, generally, only monetary damages are available on
a negligent supervision claim. Id. at 9-10.
Preliminarily, insofar as Plaintiff seeks injunctive relief on its negligent
supervision claim, as discussed above in connection with standing to pursue the Title IX
claim, Discussion, supra, at 20-22, insofar as the Amended Complaint seeks injunctive
relief changing NWCSD’s policies or practices, such relief is not available where the
action complained of has ceased. Accordingly, judgment on the pleadings should be
granted in favor of Defendant on Plaintiff’s negligent supervision claim. Alternatively,
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the pleadings establish the elements of a common law negligent supervision claim
under New York law.
In particular, “[s]chools are under a duty to adequately supervise the students in
their charge and they will be held liable for foreseeable injuries proximately related to
the absence of adequate supervision.” Mirand, 637 N.E.2d at 266 (citing Lawes v.
Board of Educ., 213 N.E.2d 667, 668-69 (N.Y. 1965); Decker v. Dundee Cent. School
Dist., 151 N.E.2d 866, 868 (N.Y. 1958)). Nevertheless, schools “are not insurers of
safety” and “cannot reasonably be expected to continuously supervise and control all
movements and activities of students; therefore, schools are not to be held liable ‘for
every thoughtless or careless act by which one pupil may injure another.’” Id. (quoting
Lawes, 213 N.E.2d at 668-69; Ohman v. Board of Educ., 90 N.E.2d 474, 475 (N.Y.
1949)). The duty owed to students is derived from the fact that “a school, in assuming
physical custody and control over its students, effectively takes the place of parents and
guardians.” Id. (citing Pratt v. Robinson, 349 N.E.2d 849, 852 (N.Y. 1976)). Further,
“[i]in determining whether the duty to provide adequate supervision has been breached
in the context of injuries caused by the acts of fellow students, it must be established
that school authorities had sufficiently specific knowledge or notice of the dangerous
conduct which caused injury; that is, that the third-party acts could reasonably have
been anticipated,” and actual or constructive notice prior to similar conduct is sufficient.
Id., 637 N.E.2d at 267. “Even if a breach of the duty of supervision is established, the
inquiry is not ended; the question arises whether such negligence was the proximate
cause of the injuries sustained.” Id.
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In the instant case, there are sufficient allegations establishing Defendant
breached its duty to supervise the students with regard to each of the four student
victims. Specifically, as discussed, Facts, supra, at 3-7, in each of the pleaded
scenarios, administrative personnel were aware of the alleged harassing and assaultive
conduct of students attending schools within NWCSD, but took no action to ensure the
safety of the student victims. As a result, each of the student victims suffered injuries
including missing classes (T.G., who did not feel safe attending certain classes);
dropping out of school (C.C., who dropped out of school because she did not feel safe);
transferring to a private school (A.S., who transferred to a private school after being
physically assaulted and the high school administrators and NWCSD superintendent
refused to take any disciplinary action against the assailants), and developing stress
and anxiety requiring counseling for two years (L.W., who, after school officials refused
to take any action to keep her assailant away from her, was forced to encounter her
assailant every day at lunch who continued to harass her). See Eskenazi-McGibne v.
Connetquot Central School District, 89 N.Y.S.3d 298-99 (2d Dept. 2018) (affirming
denial of defendant school district’s motion to dismiss for failure to state a claim for, inter
alia, negligent supervision where plaintiff student alleged mental and emotional injuries
resulting from repeated bullying and harassment by a fellow student for which the
plaintiff student’s parents repeatedly complained to the school district, teachers, and
administrative officials); Wilson v. Vestal Central School District, 825 N.Y.S.2d 159, 160-
61 (3d Dept. 2006) (affirming trial court’s denial of defendant school district’s motion for
summary judgment on negligent supervision claim where plaintiff was injured when
classmate pulled a chair out from under her while seated in the school cafeteria,
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because there were issues of fact regarding the defendant’s knowledge of prior conflicts
between the plaintiff and her classmate dating to middle school where the classmate
exhibited aggressive an confrontational behavior toward the plaintiff). Accordingly,
should the District Judge reach the elements of Plaintiff’s negligent supervision claim on
Defendant’s Motion, then Defendant should be DENIED judgment on the pleadings as
to such claim.
CONCLUSION
Based on the foregoing, Defendant’s motion (Dkt. 34) should be GRANTED and
the Clerk of Court directed to close the file. Alternatively, Defendant’s Motion should be
DENIED.
Respectfully submitted,
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	May 11th, 2022
Buffalo, New York
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ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for the Plaintiff and the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	May 11th, 2022
Buffalo, New York
Case 1:21-cv-00759-JLS-LGF Document 41 Filed 05/11/22 Page 36 of 36