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How Do We Stop School Bullying?

By Ilann M. Maazel

According to The Bully Project, over 13 million American children will be bullied this year. Not long ago, bullying was unrecognized as a national problem or even as a social phenomenon. But now, bullying is a major topic in most every school in the country. Bullying is a common backdrop to high-profile suicides, to school violence, to an increasingly urgent debate about children and social media.

A growing body of research tells us that bullying is not harmless teasing. Bullying involves a real or perceived imbalance of power, even coercive power. It is repeated. It can be physical (hitting), verbal (slurs, taunts), or psychological (social exclusion). It usually targets a single person, not a group. And its effects can be devastating.

Victims often experience anxiety, insecurity, low self-esteem, feelings of not belonging at school, depression, impaired concentration, poor academic performance, antisocial behavior, shame, loneliness and isolation, trouble making friends, increased health problems, and even suicide. Bullies, too, may experience serious problems: sadness, depressive symptoms, poor emotional adjustment, antisocial behavior, and a greater propensity to commit violence and engage in criminal behavior. In a Secret Service study, over two-thirds of school shooting incidents involved a shooter who felt bullied, persecuted, or threatened at school.

The more recent phenomenon of cyberbullying has only heightened the problem. Unlike traditional bullying, cyberbullying can attack anonymously; it can go viral, with many people harassing the same victim at once; and adults usually are not sufficiently technologically savvy to monitor, much less prevent, cyberbullying.

Schools have a strong role to play here. As one case noted, “When teachers downplay bullying or view it as kids being kids, bullying rates are higher. . . . School control is at its worst when staff and dominant students model this behavior, bullying is ignored or reinforced, or it is accepted as normal and expected.”

The law holds school districts and administrators accountable for school bullying in at least some contexts. Schools and administrators are liable when they are deliberately indifferent to known severe and pervasive harassment based on certain characteristics: for example, race, color, or national origin (Title VI of the Civil Rights Act of 1964), sex (Title IX of the Education Amendments of 1972), and disability (Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act). These forms of bullying are common. I receive calls all too often about bullying of African-Americans, of girls, of children with disabilities, and in a well-known case, of Jewish children in Pine Bush, New York, eighty miles from New York City. But what about children bullied for other reasons? Bullied because they are heavy, or wear glasses, or are just, different? Not every case involves racism, sexism, or a legally-protected characteristic. For those children, bullying—whatever its motivation—is also damaging, and often profoundly traumatizing.

These victims are largely unprotected by the law, and that should change. States, and Congress, should consider passing a law holding schools accountable for all types of bullying, not only bullying on the basis of limited, defined, protected characteristics.

Some will argue that such a law would open the floodgates to endless litigation. Schools, after all, cannot possibly regulate every social interaction among children. But such concerns are misplaced. The legal bar to holding schools accountable in bullying cases is already high: the bullying must be severe and pervasive. The school must know of the bullying. The school response must be so abjectly deficient that its action (or inaction) is deliberately indifferent to the problem. With these low legal expectations, why shouldn’t schools at least be held to this same minimal standard to address all forms of known, severe, pervasive bullying in school? We don’t expect a school to get an “A” to avoid litigation, but an “F” requires accountability and change.

From the Bill of Rights, to the Equal Protection Clause, to the Civil Rights Act of 1964, the history of social justice is in many ways a history of the law. Though the law cannot solve every social problem, legal accountability does lead to reform. In any event, shouldn’t we try?

13 million children are depending on us.

This article was first published on the Law.com Network on May 13, 2015

Article

Lawsuit Filed Against Suffolk County Apartment Complex for Racial Discrimination

ECBA filed suit in federal district court alleging racially discriminatory renting practices at Mayfair Garden Apartments, a 107-unit apartment complex in Suffolk County on Long Island. ERASE Racism, Inc. and the Fair Housing Justice Center worked together to send similarly qualified white and African-American testers posing as potential renters to the defendants’ property to inquire about the availability of apartments and rental terms. The tests revealed that the building superintendent treated African-American testers less favorably than white testers during 2014. ERASE Racism and the Fair Housing Justice Center are joined as plaintiffs in the suit by the African Americans testers who were discriminated against. The plaintiffs are represented by Diane L. Houk and Theodor O. Oxholm.

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Chief Judge designates Hal R. Lieberman a member of new Commission on Statewide Attorney Discipline

Hal R. Lieberman was appointed a member of the newly established Commission on Statewide Attorney Discipline, chaired by Chief Administrative Judge A. Gail Prudenti. The Commission will conduct a top-to-bottom review of the attorney discipline system throughout the state and issue recommendations on how to reshape attorney discipline in New York to ensure fairness, efficiency and effectiveness.

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ECBA Files Charge of Discrimination on Behalf of Woman Fired Because She Was Pregnant

Emery Celli Brinkerhoff & Abady and A Better Balance, a national legal advocacy organization, today filed a charge with the federal Equal Employment Opportunity Commission alleging that Savers, a company that operates hundreds of retail stores nationwide, fired Betzaida Cruz Cardona because she was pregnant. The charge alleges that Savers fired Ms. Cruz, a cashier in the company’s Henrietta, New York store, just days after she announced her pregnancy and on the same day that she brought in a doctor’s note stating that she could not lift over 25 pounds due to her pregnancy. Savers terminated her even though Ms. Cruz never did heavy lifting in the store, and lifting was not part of her job description. According to the charge, Savers’ actions violate federal and state pregnancy and disability anti-discrimination laws. The charge also alleges that Savers, and its subsidiaries, have engaged in a pattern and practice of pregnancy discrimination. Ms. Cruz is represented by ECBA attorney Elizabeth S. Saylor and A Better Balance attorneys Dina Bakst and Jake McDonald.

To read a copy of the charge click here. To read the press release click here. A New York Times article concerning a prior pregnancy discrimination case against Savers is available  here. To read Democrat and Chronicle’s coverage click here and  here. To read Think Progress’ coverage click here.

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NYC Pays $495,000 to Settle Police Misconduct Claim Stemming From 2013 Arrest

New York City paid $495,000 to settle Sharon Guzi’s law suit stemming from an arrest in which police officers fractured Ms. Guzi’s arm. Ms. Guzi, who was represented Emery Celli Brinckerhoff & Abady attorneys Jonathan Abady and Ali Frick, was arrested in January 2013 for temporarily stopping her car in a bus lane. Multiple police officers surrounded her car and forcibly dragged her out of it, fracturing her arm in the process. Despite her cries of pain, police officers handcuffed Ms. Guzi’s broken arm behind her back; after finally transporting her to the hospital, they kept her handcuffed to the bed. Ms. Guzi was detained for more than 24 hours, until she was finally released and charged with disorderly conduct and resisting arrest. Both charges were dismissed shortly thereafter.

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Misclassified Workers Settle Class Action Lawsuit Recovering $540,000

In Juan Almendras, et al v. Atelier Meriguet-Carrere, et al, Emery Celli Brinkerhoff & Abady LLP, together with The Legal Aid Society’s Employment Law Unit, represent former and current painters of the high end residential decorating and painting companies, Atelier Premiere, Inc. and Atelier Mériguet-Carrère.

On February 4, 2015, the Honorable Judge Paul Crotty of the Southern District of New York granted class certification and final approval of a collective/class action settlement which resolved the painters’ claims that the companies misclassified them as independent contractors and failed to pay overtime compensation as required by the Fair Labor Standards Act and the New York Labor Law (“NYLL”), illegally deducted from their pay money for general liability insurance and workers compensation insurance in violation of the NYLL, and failed to provide annual wage statements and correct paystubs as required by the NYLL. A payment of close to $400,000 will be divided among the class, which consists of more than 80 workers, most of whom are South American men who primarily speak Spanish and Portuguese. The remaining money will go to attorneys’ fees and service awards.

Staffing in this case from Emery Celli Brinckerhoff & Abady included Partner Elizabeth Saylor and Associate David Lebowitz. Staffing from The Legal Aid Society included Staff Attorneys Amy Hong and Hollis Pfitsch and Supervising Attorney Karen Cacace.

To read the complaint click here. To read the settlement click here.

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ECBA Files Lawsuit on Behalf of Mentally Disabled Rikers Inmate Beaten and Neglected by Correctional Officers

Emery Celli Brinckerhoff & Abady, together with The Legal Aid Society Prisoners’ Rights Project, filed a federal lawsuit in the Southern District of New York on behalf of Jose Guadalupe, a mentally disabled inmate, who was severely beaten by Rikers Island guards on September 2, 2014. The assault occurred after Mr. Guadelupe voiced his objection to guards ripping down family photos and magazine clippings from the walls of his cell. Even though Mr. Guadalupe was handcuffed and not a threat, the four officers responded by throwing Mr. Guadelupe to the ground, where they repeatedly punched him in the head and kicked him in the back, legs, and ribs. Following the beating, Mr. Guadalupe was left in a hot cell for nearly six hours, going in and out of consciousness, before he was finally transported to a nearby medical center where he was treated for injuries including a concussion, bruises to his ribs, facial swelling, lower back pain, dizziness, and cuts to his lip and right eyebrow. He was confined to a wheelchair for three weeks after the assault. Mr. Guadelupe is represented by ECBA attorneys Jonathan S. Abady and Zoe Salzman, along with Legal Aid Society Prisoners’ Rights Project’s Jonathan S. Chasen and Mary Lynne Werlwas.

To read more, click here.