OPINION & ORDER
Plaintiffs, five Jewish students who attended schools in the Pine Bush Central School District (“PBCSD” or “the District”), bring this Action against the District and several PBCSD Administrators under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. (“Title VI”), the Equal Protection Clause, U.S. Const, amend. XIV, § 1, under 42 U.S.C. § 1983 (“Section 1983”), and New York Civil Rights Law §§ 40-c and 40-d.
I. BACKGROUND
A. Factual History
The harassment alleged by Plaintiffs in this case spans half a decade and three separate schools within PBCSD: Pine Bush Elementary School (“PBE”), Crispell Middle School (“Crispell”), and Pine Bush High School (“PBHS”).
. For the purposes of the instant Summary Judgment Motion, the Court will consider the harassment allegedly suffered by Plaintiffs D.C., T.E., and O.C., as well as the District’s response to that harassment. The specifics of many of the incidents of harassment alleged, as well as the District’s response — or lack thereof — are contested, even though Defendants do not dispute many of them for the purposes of the instant Motion. {See Defs.’ Rule 56.1 Statement (“Defs.’ 56.1.”) (Dkt. No. 76); Pis.’ Response to Defs.’ Rule 56.1 Statement (“Pis.’ 56.1 Resp.”) (Dkt. No. 71); Defs.’ Reply to Pis.’ 56.1 Counterstatement (“Defs.’ 56.1 Resp.”) (Dkt. No. 81).)
1. Plaintiff D.C.
D.C. is a male student who claims to have suffered anti-Semitic harassment and
When D.C. was in sixth grade, a girl who “bullfied D.C.] constantly” on the school bus yelled “F’ing Jew” while D.C. was on the bus. (Defs.’ 56.1 Resp. ¶ 290; D.C. 29.) Mr. C., D.C.’s father, reported the slur to Boyle, (see Defs.’ 56.1 Resp. ¶ 291; D.C. 29; Mr. C.’s Deposition Tr. (“Mr. C.”) 10, 13 (Wilson Decl. Ex. 12 (Dkt. No. 79))), and told Boyle that D.C. “had been the butt of many Jewish jokes,” that the bus incident “crossed a very severe line,” and that D.C. was being harassed by “multiple kids over the course of that year” and was experiencing intolerance from “a lot of kids,” (Defs.’ 56.1 Resp. ¶¶ 292-93; Mr. C. 10-13). When Boyle told Mr. C. that the incident would be handled on an individual basis, Mr. C. told Boyle that “this isn’t an individual thing, this is systemic.” (Defs.’ 56.1 Resp. ¶¶ 294-295; Mr. C. 13.) Mr. C. further told Boyle that D.C. was hearing Jewish jokes from older students on the school bus, which transported both middle and high school students. (See Defs.’ 56.1 Resp. ¶ 296; Mr. C. 14.) During a followup call about this incident, Boyle informed Mr. C. that a girl involved in the harassment had been spoken to. (See Defs.’ 56.1 Resp. ¶ 267; Mr. C. 15.) However, Boyle had no response to Mr. C.’s question about how the District would handle “all the other kids that [we]re making Jewish jokes,” (Defs.’ 56.1 Resp. ¶ 298; Mr. C. 15), and also did not follow up with Mr. C. about addressing anti-Semitism in the school, (Mr. C. 57-58; Boyle 309). Boyle does not remember Mr. C. reporting harassment of D.C. by multiple children, nor any discussion with Mr. C. of systemic harassment or anti-Semitism, but instead recalls the incident involving “one kid on the bus.” (Boyle 167-70.) D.C. attempted to discuss this incident with Boyle, but Boyle “dismissed it so that he could reprimand [D.C.] for playing video games in the computer lab, when all the other students were also playing video games in the computer lab.” (Defs.’ 56.1 Resp. ¶ 301; D.C. 29.)
When D.C. was in seventh grade, students repeatedly sang and chanted a “song about stomping the niggers and killing the Jews and washing off their blood,” in both the school cafeteria near D.C.’s table, and on D.C.’s bus. (D.C. 73.) When students sang this “white power song” on D.C.’s bus, D.C. complained to the bus driver, but the white power chants continued — in fact, other students found out that D.C. had complained and the harassment “got worse.” (Defs.’ 56.1 Resp. ¶¶ 314-17; D.C. 72-77.)
When D.C. was in eighth grade, D.C. notified his science teacher of a “giant swastika ... [approximately] a foot in diameter” in the boys’ bathroom. (Defs.’ 56.1Resp. ¶¶ 306-07; D.C. 11-12.) The
When D.C. was in ninth grade, another student “would constantly berate [D.C.],” telling him that D.C.’s “ancestors died in the Holocaust,” calling D.C. “ashes,” and pantomiming the blowing of dust off his hands while telling D.C. that he was “just ashes.” (Defs.’ 56.1 Resp. ¶¶ 56, 318; D.C. 69-70.) The same student would slap D.C. in the face as the student got off the bus and smirk at D.C. (See Defs.’ 56.1 Resp. ¶ 56; D.C. 70.) Other students joined in this harassment, slapping D.C. in the face and telling him “shut up, D., or I will burn you in an oven.” (Defs.’ 56.1 Resp. ¶ 57; D.C. 70.) The bus driver did nothing in response to this harassment, which continued throughout D.C.’s ninth grade year. (See Defs.’ 56.1 Resp. ¶¶ 319-20; D.C. SO-SO.) D.C. also witnessed students in the school cafeteria and classrooms performing “Hitler salutes,” both to each other and to D.C. (Defs.’ 56.1 Resp. ¶ 321; D.C. 72-73, 85-86.) D.C. testified that these students “didn’t hide” their behavior and made “no attempt to conceal” it, and that D.C. “c[ouldn’t] really imagine [adults in the school] missing it.” (Defs.’ 56.1 Resp. ¶ 322; D.C. 86.)
When D.C. was in tenth grade, a student in D.C.’s trigonometry class was “constantly making anti-Semitic jokes” and picking on another Jewish student. (Defs.’ 56.1 Resp. ¶ 323; D.C. 92-95.) D.C. confronted the student, who was sitting “in the first row” only “two feet” from the teacher, Ms. King. (Defs.’ 56.1 Resp. ¶¶ 324-328; D.C. 92-95.) Ms. King told the offending student to “stop it.” (Defs.’ 56.1 Resp. ¶ 328; D.C. 94.) Ms. King spoke with the offending student, during which time the student discussed “how he could kick [D.C.’s] ass.” (Defs.’ 56.1 Resp. ¶ 329; D.C. 94.) While Defendants do not dispute this exchange for the purposes of the instant motion, Ms. King claims to have provided the offending student with an oral warning to “make sure that [he] understood that he could not make comments like that at PBHS,” and she claims that the student “apologized to [Ms. King],” “indicated ... that he would not do it again,” and “did not threaten D.C. during [the] conversation.” (Defs.’ 56.1Resp. ¶ 328; Affidavit of Kelly King (“King Aff.”) ¶¶ 11-12 (Dkt. No. 82).)
Later, in Ms. King’s math class, another student shouted that another classmate was a “fucking jew” and smirked at D.C, but was not punished. (Defs.’ 56.1 Resp. ¶ 331; D.C. 94.) Defendants dispute this later incident, as Ms. King claims to have neither heard the statement nor had the statement reported to her — in fact, Ms. King claims that she “did not ever hear students make anti-Semitic jokes about any student” when D.C. was in her class. (Defs.’ 56.1 Resp. ¶ 323; King Aff. ¶¶ 3,13, 14.)
During his time at Crispell and PBHS, D.C. witnessed “swastikas everywhere” and testified that they were so prominently displayed that “[i]t would be impossible for [teachers or administrators] to miss the swastikas.” (Defs.’ 56.1 Resp. ¶ 55; D.C. 11.) Specifically, D.C. witnessed swastikas in the school bathrooms and on binders, lockers, and desks. (See Defs.’ 56.1 Resp. ¶ 55; D.C. 13-14.) He also witnessed swastikas in the textbooks issued to students for use in class or available in the school library. (See D.C. 19.) He reported swastika-defaced textbooks to his teach
The harassment D.C. suffered throughout his time in the District made him feel unsafe, as though “[e]very day ... was the wors[t] day of [his] life” and led D.C. to contemplate suicide. (Defs.’ 56.1 Resp. ¶¶ 66-67; D.C. 123-24.) After the bus incident in sixth grade, D.C. felt that “Mr. Boyle didn’t really care or couldn’t do anything about [the harassment],” and that “the system had apathy towards [D.C.], so [he] didn’t know who to talk to and [D.C.] thought [he] was on [his] own.” (Defs.’ 56.1 Resp. ¶ 302; D.C. 41.) Furthermore, “after alerting the teachers in eighth grade and seeing their ... inability ... to correct the problem,” D.C. felt “overwhelmed” and “did not report a lot of swastikas because [he] felt like [he] was fighting a losing battle and [that he] couldn’t make a difference.” (Defs.’ 56.1 Resp. ¶ 312; D.C. 20.)
2. Plaintiff T.E.
T.E. is a female student who claims to have suffered anti-Semitic harassment and witnessed anti-Semitic incidents during her time at PBE and Crispell. Like D.C., T.E. witnessed swastika grafitti in the bathroom and on textbooks, desks, people, books, binders, notebooks, walls, and posters. (See Defs.’ 56.1 Resp. ¶ 33; T.E. Deposition Tr. (“T.E.”) 196, 267-68 (Wilson Deck Ex. 8 (Dkt. No. 79)).)
Several of the incidents about which T.E. complains occurred during the 2008-2009 school year, when T.E. was in fifth grade at PBE. (See Defs.’ 56.1 Resp. ¶ 68; T.E. 6, 17.) In March 2009, a student on T.E.’s bus called her a “Jew” and gave the middle finger to T.E. and her mother. (See Defs.’ 56.1 Resp. ¶ 96; T.E. 34.) Mrs. E. reported the incident to both the bus driver, (see T.E. 35), and PBE Principal Fisch, (see Defs.’ 56.1 Resp. ¶ 97; Fisch 111-13.) Fisch discussed the incident with the offending student, who admitted to calling T.E. “a Jew and dirty Jew and other epithets.” (Defs.’ 56.1 Resp. ¶ 98; Fisch 122.) The student was given a 50-minute “recess detention,” and his parents were called, but the student was not forced to apologize to T.E. or her mother, do any assignment, or be subject to suspension or after-school detention. (See Defs.’ 56.1 Resp. ¶ 99; Fisch 131-134.)
In April 2009, two of T.E.’s classmates— one of whom was the same student who had called T.E. a “Jew” on the bus— showed T.E. swastikas that were drawn in their planners. (See Defs.’ 56.1 Resp. ¶ 102; T.E. 25-30.) Mrs. E„ T.E.’s mother, reported this incident to Fisch, who allegedly told her “[w]hat’s the big deal, they didn’t aim [the swastikas] towards [T.E.], they were just writing in their book.” (Defs.’ 56.1 Resp. ¶¶ 104-05; Mrs. E. Deposition Tr. (“Mrs. E.”) 56-57 (Wilson Decl. Ex. 9 (Dkt. No. 79)).) While Defendants do not dispute Plaintiffs’ description of this incident for the purposes of the instant motion, they do note that “T.E. testified that she happened to see the swastikas, not that [the students] showed them to her,” and also contest the date on which this incident occurred. (See Defs.’ 56.1 Resp. ¶ 102.) Defendants also note that, • during Fisch’s deposition, he denied saying “[wjhat’s the big deal” to Mrs. E. (See Defs.’ 56.1 Resp. ¶ 105.) Af
Also in April 2009, T.E. saw a swastika carved into the slide on the PBE playground. (See Defs.’ 56.1 Resp. ¶ 76; T.E. 40^42.) Mrs. E. reported the swastika to Fisch no later than May 1, 2009. (See Defs.’ 56.1 Resp. ¶ 78; Fisch 152; Mrs. E. 73-75.) Fisch saw the swastika and claims to have put in a work order to have it removed. (See Defs.’ 56.1 Resp. ¶¶ 79-80; Fisch 155-59.) Mrs.- E. claims to have raised the issue with Fisch in June 2009 and again in September 2009, however, the swastika was still not removed. (See Defs.’ 56.1 Resp. ¶¶ 82-84; Fisch 165-67; Mrs. E. 76.) Defendants dispute the June and September reports, as Fisch testified that he did not remember Mrs. E. discussing the issue with him on those dates. (See Defs.’ 56.1 Resp. ¶¶ 83-85; Fisch 166-68.) At oral argument before the Court on July 17, 2014, Defendants continued to dispute whether Mrs. E. notified Fisch two or four times about the swastika, but contend that this dispute is irrelevant for the purposes of their Motion for Summary Judgment, as Fisch filed a work order to have the grafitti removed. (See July 17, 2014 Tr. 15.) In any case, Plaintiffs allege that between April 2009 and April 2010, Fisch never checked to confirm that the swastika had been removed, nor did anyone tell him that the swastika was removed, rather he simply “believe[d] it had been taken care of.” (Defs.’ 56.1 Resp. ¶¶ 86-87; Fisch 162, 178-79.)
On April 19, 2010, when T.E. was in sixth grade and enrolled at Crispell, Mrs. E. saw that the swastika was still present on the slide at PBE, took a picture, and emailed the photo to the District’s Assistant Superintendent. (See Defs.’ 56.1 Resp. ¶¶ 88, 140; Maazel Decl. Ex. 19; Mrs. E. 100-05, 129-30.) Defendants do not dispute this account, for the purposes of the instant Motion, but note that it is not clear that the swastika observed was the same one that existed in April 2009. (See Defs.’ 56.1 Resp. ¶ 88; Fisch 179; July 17, 2014 Tr. 11.) In the same email, Mrs. E. noted that students on T.E.’s bus had been making “swastika symbols with their hands,” performing Hitler salutes, and discussed “do[ing] something ... to celebrate” the “anniversary of Hitler’s birthday.” (Defs.’ 56.1 Resp. ¶ 141; Maaz-el Decl. Ex. 19; Mrs. E. 102, 130.) The Assistant Superintendent forwarded Mrs. E.’s email to Fisch, Hopmayer, and Boyle and suggested that Fisch get the swastika removed. (See Defs.’ 56.1 Resp. ¶¶ 89-90; Fisch 169-73.) Fisch replied to suggest that “we go out and look at [the swastika grafitti] on cannabis culture day[, April 20, 2010].” (Defs.’ 56.1 Resp. ¶ 90; Fisch 173-76.) Fisch and the Assistant Superintendent then inspected the slide on April 20, 2010 and found the swastika. (See Defs.’ 56.1 Resp. ¶¶ 91-92; Fisch 177-78.) Fisch conducted no investigation into the origin of the grafitti and no one was disciplined
Despite the fact that the Assistant Superintendent forwarded Mrs. E.’s April 19, 2010 email reporting students making “swastika symbols with their hands,” saluting Hitler, and planning to do something to “celebrate” the “anniversary of Hitler’s Birthday,” to Fisch, Boyle, Hopmayer, and Peters, (see Defs.’ 56.1 Resp. ¶¶ 141-42; Maazel Decl. Ex. 19; Mrs. E. 102; Fisch 181-82), nobody interviewed any students on T.E.’s bus or asked T.E. which students were making the offensive symbols and salutes, (see Defs.’ 56.1 Resp. ¶¶ 143-44; Carbone Deposition Tr. (“Carbone”) 297-99, (Wilson Decl. Ex. 2 (Dkt. No. 79)).). Defendants do not dispute that Fisch, Boyle, Peters, and Hopmayer did nothing in response to Mrs. E.’s complaint. (See Defs.’ 56.1 Resp. ¶¶ 146-49; Fisch 185; Boyle 181-192;); Peters Deposition Tr. (“Peters”) 269-79 (Wilson Decl. Ex. 6 (Dkt. No. 79)); Hopmayer 308-09, 313.)
T.E. did not attend school on April 20, 2010, but when she boarded the bus the next day, the driver “yelled at [her] in front of everybody on the bus” and “called [her] a liar.” (Defs.’ 56.1 Resp. ¶¶ 151-52; T.E. 56, 62-63.) When T.E. took out her phone to contact Mrs. E., the driver told T.E. to “put [her] phone away,” was “screaming in [her] face,” and told T.E. to “stop crying.” (Defs.’ 56.1 Resp. ¶ 153; T.E. 65.) After this incident, T.E.’s mother drove T.E. to school for the rest of the year. (See Defs.’ 56.1 Resp. ¶ 154; T.E. 66.)
During T.E.’s seventh grade year, the anti-Semitic harassment continued. In April 2011, Mrs. E. sent an email to Winter, Steinberg, and others explaining that a student in T.E.’s English class had called T.E. “[c]rispy” and said that “she should have been burned.” (Defs.’ 56.1 Resp. ¶ 168; Steinberg 263; Maazel Decl. Ex. 8.) T.E. also reported similar comments made by another student to Winter, specifically that T.E. “[w]as crispy” and “should have been burned a while ago.” (Defs.’ 56.1 Resp. ¶ 169; T.E. 115.)
On April 28, 2011, in T.E.’s math class, one student said that another student “didn’t know something because he was a Jew.” (Defs.’ 56.1 Resp. ¶ 207; T.E. ,160.) Defendants dispute whether this incident is reflected in Winter’s notes and whether T.E.’s testimony refers to the Amended
In May 2011,' T.E. reported a swastika on her desk to her music teacher, who “immediately” took the desk out of the room and notified Winter. (Defs’’ 56.1 Resp. ¶ 175; T.E. 167-68.) The Parties dispute whether the swastika remained on the desk for “two weeks,” as T.E. testified, or was promptly removed by Winter and a custodian the same day, as Winter testified. (Defs.’ 56.1 Resp. ¶ 175; T.E. 167-68; Winter Deposition Tr. (‘Winter”) 187-88 (Wilson Decl. Ex. 3 (Dkt. No. 79)).) Regardless, Defendants do not dispute that no student was disciplined as a result of the graffiti, nor that T.E.’s next music desk also was defaced with a swastika. (See Defs.’ 56.1 Resp. ¶ 175; T.E. 170.)
Around the same time, T.E. reported anti-Semitic grafitti in the boys’ bathroom to Winter. (See Defs.’ 56.1 Resp. ¶ 176; T.E. 242-43.) The graffiti read “[f]uck the Jews” and also featured a Star of David with a male eighth-grade student’s name inside. (See Defs.’ 56.1 Resp. ¶ 176; T.E. 242.) In response to T.E.’s reporting, Winter told her that she “was looking for the trouble now.” (Defs.’ 56.1 Resp. ¶ 176; T.E. 243.) The Parties dispute whether any investigation resulted from this report, but Winter testified that he spoke with the male eighth-grade student, who reported, that he had not experienced any anti-Semi-tism, apart from the grafitti. (See Defs.’ 56.1 Resp. ¶ 176(d); Winter 426.) Defendants do not dispute Plaintiffs’ contention that no discipline was imposed with respect to this grafitti. (Defs.’ 56.1 Resp. ¶ 175; Winter 425-26.)
By May 24, 2011, T.E. was “stressed every single day going to school ... to the point [where T.E. was] upset every day [when she came] home and complained how terrible it was at school.” (Defs.’ 56.1 Resp. ¶209; Mrs. E. 173-75.) Mrs. E. emailed Winter, Steinberg, Carbone, Boyle, and PBCSD Board member Eric Meier (“Meier”), telling them that the harassment of her daughter over’ a period of three years “has escalated every year to the point that [T.E.] now begs me to not have to return to this school.” (Defs.’ 56.1 Resp. ¶¶ 211-12; Maazel Decl. Ex. 22; Winter 182.) In fact, Mrs. E. had multiple communications with Winter about antiSemitic harassment, (see Defs.’ 56.1 Resp. ¶ 184; Winter 181, 388-89), and Winter admitted to being informed of “18 or more anti-Semitic incidents” in the 2010-2011 school year, (Defs.’ 56.1 Resp. ¶ 185; Winter 400).
In response to Mrs. E.’s complaints, Mr. Winter told her “that [T.E. and O.C.] would not have [had to] know about most of the Swastikas if they had not asked people to inform them if they saw any,” and that if they “weren’t asking to be shown the offenses they wouldn’t be as stressed /upset by them.” (Defs.’ 56.1 Resp. ¶¶ 214-15; Maazel Ex. 24; see Winter 208-09.) Mrs. E. memorialized Winter’s statements in a May 26, 2011 email to Winter, to which she copied Steinberg, Carbone, Boyle, Meier, PBCSD Board member Lloyd Greer (“Greer”), and others. (See Defs.’ 56.1 Resp. ¶ 216; Maazel Decl. Ex 24.)
On May 31, 2011, Mrs. E. emailed Winter, Steinberg, Carbone, Boyle, Meier, and others, relaying an incident that T.E. witnessed on the bus in which one student
Also on May 31, 2011, Mrs. E. emailed Winter, Steinberg, Carbone, Boyle, Meier, and others to tell them that she had received “a frantic message from [T.E.] regarding [a PBHS student on her bus who] has a history of chanting white power and pro[-]Hitler statements.” (Defs.’ 56.1 Resp. ¶ 218; Maazel Decl. Ex. 26; T.E. 152-53.) This email stated that the older student “pushed [T.E.] in [a seat] and sat with her” and said that when T.E. “is in 8th grade that she is going to get her ass kicked.” (Maazel Decl. Ex. 26.) Neither Winter, Steinberg, Carbone, nor Boyle spoke with the offending student, interviewed T.E. or witnesses about the incident, imposed any discipline, or stopped the offending student from riding the bus with T.E. (See Defs.’ 56.1 Resp. ¶ 219.) Defendants note that “[n]o punishment could be imposed on [the offending student] because he was graduating and no longer rode the bus.” (Id.) T.E. testified that she witnessed students making Hitler salutes and singing white power chants on the school bus on a “daily” basis. (Defs.’ 56.1 Resp. ¶ 34;' T.E. 51, 90,197-98.)
When T.E. was in sixth or seventh grade at Crispell, Mrs. E. had “a conversation with Mr. Steinberg regarding what was going on in the schools and how upset [T.E.] was.” (Defs.’ 56.1 Resp. ¶ 201; Mrs. E. 109.) Mrs. E. told Steinberg about the swastika grafitti “on the bathroom walls,” “on the desks,” “on the lockers,” and “on people’s notebooks,” and expressed that T.E. “does not feel comfortable here.” (Defs.’ 56.1 Resp. ¶¶ 202-OS; Mrs. E. 110.) Steinberg responded by saying that “when [he] had this issue when [his] kids were in school, [he] moved.” (Defs.’ 56.1 Resp. ¶ 204; Mrs. E. 110.)
When T.E. was in eighth grade, she continued to hear anti-Semitic slurs “on almost a daily basis” and recalls that “people would use Jew like they would use the N word.” (Defs.’ 56.1 Resp. ¶264; T.E. 196.) She also saw swastikas “everywhere” in the school, (Defs.’ 56.1 Resp. ¶ 265; T.E. 196), though Defendants dispute this point based on T.E.’s failure to provide specifics about this grafitti upon cross-examination, (see Defs.’ 56.1 Resp. ¶ 265; T.E. 276-80). T.E. also recalls people “salut[ing] Hitler all the time.” (Defs.’ 56.1 Resp. ¶ 266; T.E. 197.)
At some point in T.E.’s eighth grade year, she noticed swastika graffiti in one of the school bathrooms. (See Defs.’ 56.1 Resp. ¶ 267; T.E. 196-97.) T.E. “told [Boyle] exactly where it was,” but Boyle claimed not to see it. (Defs.’ 56.1 Resp. ¶ 267; T.E. 196.) When T.E. went in the bathroom later, it was still there. (See Defs.’ 56.1 Resp. ¶ 268; T.E. 196-97.)
On January 23, 2012, during T.E.’s math midterm examination, she witnessed several students “saluting Hitler.” (Defs.’ 56.1 Resp. ¶ 272; T.E. 213-15.) The Parties dispute whether T.E. reported this incident to the Crispell Assistant Principal Christopher Mummery, (see Defs.’ 56.1 Resp. ¶ 273; T.E. 216; Affidavit of Christopher Mummery (“Mummery Aff.”) ¶ 18 (Dkt. No. 75)), but do not dispute that no
On January 24, 2012, a student sitting in the front of T.E.’s health class made an anti-Semitic “joke” about Jews and concentration camps. (See Defs.’ 56.1 Resp. ¶ 275; T.E. 216-17; Mummery Aff. ¶ 20.) T.E. reported this statement to Mummery, who met with the student and gave him two lunch detentions. (See Defs.’ 56.1 Resp. ¶ 276, 278; T.E. 218; Mummery Aff. ¶¶ 20-22.) Mummery also asserted that he “directed [the offending student] to write an essay about the Holocaust” as part of his punishment. (Mummery Aff. ¶ 21.)
On January 25, 2012, a student threw a coin at T.E. in the Crispell hallway. (See Defs.’ 56.1 Resp. ¶¶41, 279; T.E. 220-28.) Defendants concede that this incident was reported to Boyle, but state that the students Boyle questioned disputed T.E.’s accusation. (See Defs.’ 56.1 Resp. ¶ 280; Boyle 85-86.)
The same day, T.E. told her mother that “if she had to go back to the school ever again she was going to have a nervous breakdown.” (Defs.’ 56.1 Resp. ¶ 281; Mrs. E. 201.) Mrs. E. took T.E. to Mobile Mental Health, to meet with a counselor “who said that ... [Crispell] was [not] a healthy place for her.” (Defs.’ 56.1 Resp. ¶ 282; Mrs. E. 201.) T.E. subsequently left PBCSD and was home schooled. (See Defs.’ 56.1 Resp. ¶283; T.E. 235-36; Mrs. E. 201-02.)
3. Plaintiff O.C.
O.C. is a female student, the sister of D.C., and a classmate of T.E., who also claims to have suffered anti-Semitic harassment during her time at PBE, Cris-pell, and PBHS. O.C. testified to observing swastika grafitti in the bathrooms and on books, desks, her yearbook picture, her school locker, binders, windowsills, and on the cafeteria door. (See Defs.’ 56.1 Resp. ¶ 47; O.C. Deposition Tr. (“O.C.”) 52-54, 84, 89, 107-08, 119-20, 137, 215-16 (Wilson Decl. Ex 10 (Dkt No. 79)).)
During O.C.’s sixth grade year, 2009-2010, O.C. suffered several incidents of harassment. When her class was watching a Holocaust video, a student made “his hand in the shape of a gun[,] [pointed it] at [O.C.’s] head[,]” and, when T.E. asked what he was doing, replied that “he was killing Jews.’” (Defs.’ 56.1 Resp. ¶127; O.C. 9; T.E. 77.) T.E. and O.C. reported this to their teacher, who spoke with the offending student in the hallway. (See Defs.’ 56.1 Resp. ¶¶ 128-29; O.C. 9-12.) When the student returned to class, he was crying. (See Defs.’ 56.1 Resp. ¶ 129; O.C. 12.) However, the same student continued to “mak[e] ethnic slurs towards [O.C.],” even after this incident. (Defs.’ 56.1 Resp. ¶ 130; O.C. 13.)
The same year, while at a picnic with her class, another student “found a penny” in the volleyball pit, “picked it up and said ‘[l]ook I am being a Jew.’ ” (Defs.’ 56.1 Resp. ¶ 46; O.C. 14.) When O.C. told the student that his statement was offensive, “he took the sand and smashed it in [O.C.’s] hair.” (Defs.’ 56.1 Resp. ¶46; O.C. 14-15.) A fight between O.C.’s then boyfriend and the offending student resulted. (See Defs.’ 56.1 Resp. ¶ 131; O.C. 14-18; T.E. 81-84.) Mrs. E. was told that the anti-Semitism that started [the fight] “didn’t matter” and that the school would only look into the fight. (Mrs. E. 113.)
O.C. also testified another student threw pennies at her “during recess for an entire, month” in sixth grade. (Defs.’ 56.1 Resp. ¶ 49: O.C. 79-80.) At some point that year, Mr. C. reported to Peters that O.C. had pennies thrown at her and that she had been subjected to anti-Semitic jokes. (See Defs.’ 56.1 Resp. ¶ 133; Mr. C. 15-18.)
When O.C. was in seventh grade (2010-2011), students called her “Christ killer” and “dirty Jew,” and told anti-Semitic jokes, including “what is the difference between a pizza and a Jew[?] [W]hen it goes in the oven a pizza doesn’t scream.” (Defs.’ 56.1 Resp. ¶ 48; O.C. 99-100.)
On April 14, 2011, O.C. told Boyle that her best Mend had been held down and that two students had drawn a swastika on her Mend’s face. (See Defs.’ 56.1 Resp. ¶ 170; O.C. 68; Boyle 7.) Defendants dispute several aspects of this incident, as Boyle testified that he spoke with the student involved, who said that the students were “joking” and that the incident was not meant to be offensive. (Defs.’ 56.1 Resp. ¶ 170(a); Boyle 97.) When O.C. spoke with Boyle, she was crying, and O.C. testified that Boyle asked her why she found the incident offensive if it wasn’t directed toward her. (See - Defs.’ 56.1 Resp. ¶ 170(b); O.C. 68.) Defendants dispute this exchange, as Boyle testified that he never made such a statement to O.C. and instead testified that he remembered “saying it’s offensive to everybody.” (Defs.’ 56.1 Resp. ¶ 170(c); Boyle 198.) On a separate occasion in seventh grade, two students held O.C.’s hands behind her back at recess and “tried to shove a quarter down [her] throat.” (Defs.’ 56.1 Resp. ¶ 45; O.C. 63-64.) On April 27, 2011, a student called O.C. a “F’ing Jew.” (Defs.’ 56.1 Resp. ¶ 172; Winter 95.) Winter gave this student two hours of detention and his' parents were notified. (See Defs.’ 56.1 Resp. ¶ 172(a); Winter 110; Sneed Decl. Ex. EE (Dkt. No. 77).)
One day in seventh grade English class, O.C. saw a swastika on her desk and reported it to Winter. (See Defs.’ 56.1 Resp. ¶ 174; O.C. 43-44; Winter 89-90.) The swastika was removed, but “a different swastika” appeared on her desk “[t]he next day.” (Defs.’ 56.1 Resp. ¶ 174; O.C. 45-46.) O.C. again reported it to Winter and, the following day, another student told O.C. that there were “three swastikas on [O.C.]’s desk with [O.C.’s] name” in the swastikas and “die Jew” or “damn Jew.” (Defs.’ 56.1 Resp. ¶ 174; O.C. 45-46, 53-54.) O.C. asked her English teacher if she could see Winter, and the teacher “made a speech in front of the class” to the effect that students “shouldn’t get up during class” and that O.C. should “sit at a different desk.” (Defs.’ 56.1 Resp. ¶ 174(h); O.C. 49.) O.C. later reported this incident to Winter because she “felt threatened and [she] wanted to figure out who did it.” (Defs.’ 56.1 Resp. It 174; O.C. 47.) O.C. testified that Winter told her English teacher “to just watch the desk,” (Defs.’ 56.1 Resp. ¶ 174(j); O.C. 48), though Defendants dispute this and suggest that Winter conferred with the teacher, looked at seating charts, and spoke to O.C. and the student who witnessed the grafitti, but could not determine who was responsible, (see Defs.’ 56.1 Resp. ¶ 174(j); Winter 92-93). The Parties dispute whether O.C. later told Winter that a student had admitted to being the perpetrator, as there is no evidence that O.C. told Winter that the student had confessed, and Winter was under the impression that the student was not responsible. (See Defs.’ 56.1 Resp. ¶ 174(k); O.C. 48; Winter 93.)
During their seventh grade year, T.E. and O.C. regularly reported anti-Semitic harassment to Winter. (See Defs.’ 56.1 Resp. ¶ 182; Winter 60-61, 70-71, 77, 88, 95, 97, 113, 141, 189, 303-04, 393-94, 425.) The girls complained to Winter so frequently that he told them to “stop coming
The same year, Mr. C. had “at least three phone conversations” with Winter about the anti-Semitic harassment that O.C. suffered, specifically that O.C. was “called Christ killer, dirty Jew, stinking Jew, ha[d] pennies thrown at her and ... [found] swastikas,” including the one near O.C.’s yearbook picture. (Defs.’ 56.1 Resp. ¶¶ 177-78; Mr. C. 20-22.) In response, Winter said that he would “deal with it on an individual basis.” (Defs.’ 56.1 Resp. ¶ 179; Mr. C. 21.) Mr. C. told Winter that “this isn’t an individual problem, this is systemic, and ... a much broader problem and you cannot deal with it individually.” (Defs.’ 56.1 Resp. ¶ 180; Mr. C. 22.) The Parties dispute whether Winter did “anything to address ... systemic anti-Semi-ti[c] harassment and bullying in the school.” (Defs.’ 56.1 Resp. ¶ 181; Mr. C. 59.) Defendants submit that, during Winter’s year as Crispell Assistant Principal, “there were three anti-bullying assemblies, a District[-]wide anti-bullying seminar for parents in June 2011, and bullying ■ and anti-Semitism were addressed within the curriculum, including through a Holocaust unit in eighth grade.” (See Defs.’ 56.1 Resp. ¶ 181; Affidavit of Joan Carbone (“Carbone Aff.”) ¶¶ 12-13, 30 (Dkt. No. 51).)
On June 15, 2011, a student showed T.E. a swastika “made out of pipe cleaner” and told T.E. that he was going to give it to O.C. (Defs.’ 56.1 Resp. ¶251; O.C. 55-56, T.E. 95-96, Winter 303-06). During the last week of seventh grade, O.C. reported to Winter that a swastika had been drawn near her photo in another student’s yearbook. (See Defs.’ 56.1 Resp. ¶253; O.C. 84-85; Winter 393-97.) Winter documented the name of the student who had drawn the swastika in his notes and crossed out the symbol with a marker. (See Defs.’ 56.1 Resp. ¶ 253(b); O.C. 85; Winter 393). The Parties dispute whether the District imposed discipline on the student responsible for the drawing, beyond merely speaking with the student, but Winter testified that he imposed a two-day out of school suspension for both the pipe-cleaner and yearbook incident, and wrote a letter to the student’s.mother about the suspension and misconduct. (See Defs.’ 56.1 Resp. ¶ 253(c); Winter 305-06).
When O.C. was in eighth grade (2011-2012), she reported a drawing of a swastika and the word “gay” on a poster of President Obama to two teachers. (See Defs.’ 56.1 Resp. ¶284, OC 103-04; TE 269; Mummery Aff. ¶ 8.) The Parties dispute whether O.C. reported the swastika to Mummery once or twice before he removed it. (See Defs.’ 56.1 Resp. ¶ 285; O.C. 104; Mummery Aft. ¶¶ 7-9.) The Parties also dispute whether any action was taken or whether an investigation was made to determine who had defaced the poster. (See Defs.’ 56.1 Resp. ¶ 286; Mummery Aff. ¶ 8; Boyle 42.)
O.C. also told Mummery that a student had drawn a swastika on her locker. (See Defs.’ 56.1 Resp. ¶287; O.C. 90-93.) Mummery testified that the graffiti was a Star of David rather than a swastika, but, regardless, he removed the graffiti from O.C.’s locker and had the offending student perform research and write an essay about the history of the Star of David. (See Defs.’ 56.1 Resp. ¶ 288; Mummery Aff. ¶¶ 9-10 and Ex. B.)
A The District’s Response
In response to Plaintiffs’ allegations, the District contends that it responded appropriately to each of the incidents of which it was aware. Moreover — and in response to Plaintiffs’ allegation that the District never took widespread steps to address antiSemitism among PBCSD’s students — the District lists a number of measures it took to prevent harassment and bullying generally. With respect to Plaintiffs D.C., T.E., and O.C., the District points to two assemblies held at these Plaintiffs’ schools.
In May 2009, when T.E. and O.C. were in fifth grade at PBE, Fisch held an assembly to discuss the “bullying problem” in the fifth grade class and sent a letter to students’ ■ parents informing them about the consequences of “any verified complaints about bullying behavior ... from any school related area including the bus.” (Defs.’ 56.1 Resp. ¶122; Fisch 139-42.) Fisch did not discuss anti-Semitism in the assembly, despite the fact that the assembly was held after the incidents in PBE involving swastikas on a slide and in student notebooks, and after a student called T.E. a “dirty Jew” on the bus. (Defs.’ 56.1 Resp. ¶ 122; Fisch 296-97.)
On June 10, 2011, when T.E. and O.C. were in seventh grade, Crispell held an assembly in which a Holocaust survivor addressed a group of seventh grade students. (See Defs.’ 56.1 Resp. ¶¶ 222-23; Boyle 47.) While Defendants do not dispute Plaintiffs’ contention that “no one addressed anti-Semitism in Pine Bush [S]chools” at this assembly, (Defs.’ 56.1 Resp. ¶ 223; Steinberg 264),- Defendants note that both Winter and Steinberg spoke at the assembly and that Boyle testified that “Winter spoke of anti-Semitism or of discrimination,” (Defs.’ 56.1 Resp. ¶ 223; Boyle 158-59). While the Holocaust survivor spoke, one student told T.E. that “that was fucking stupid.” (Defs.’ 56.1 Resp. ¶ 224; T.E. 255; Winter 294.) Winter spoke with the student and made him apologize to the guest speaker. (See Defs.’ 56.1 Resp. ¶ 224; Winter 294-95.) Another student, was removed from the assembly because she was “talking nonstop.” (Defs.’ 56.1 Resp. ¶ 223; O.C. 71; Winter 292-93.) After the assembly, O.C. overheard people saying that the assembly was a waste of their time. (See Defs.’ 56.1 Resp. ¶ 226; O.C. 71.)
On June 7, 2011, Mrs. E. and Mr. C. met with Steinberg, Greer, and others. (See Defs.’ 56.1 Resp. ¶ 228; Steinberg 268-69.) In this meeting, the parents told Steinberg about the swastikas, name-calling, Holocaust “jokes,” and that students had called their children “ashes” and “crispy.” (Defs.’ 56.1 Resp. ¶229; Mr. C. 46, 60.) They also showed Steinberg pictures of some of the swastikas that T.E. and O.C. had taken, and told Steinberg that the
On June 14, 2011, Mr. C. emailed Stein-berg requesting that he “[p]lease talk to the girls SOON [as t]hey continue to hear slurs on a daily basis.” (Defs.’ 56.1 Resp. ¶ 247; Maazel Deck Ex. 28; Steinberg 284-85.) The same day, Mrs. E. emailed Winter, Steinberg, and others to say that she had “been reporting these issues ... for 3 years and there has been no change,” and that the “current system of handling it on a case basis is not working. It has increased to being a daily occurrence.” (Defs.’ 56.1 Resp. ¶ 249; Maazel Decl. Ex. 29; Steinberg 287-88.) The following day, Mrs. E. emailed Winter, Steinberg, and others and said that “[w]e are still waiting for Mr. Steinberg to go speak with the girls.” (Defs.’ 56.1 Resp. ¶ 250; Maazel Deck Ex. 29.)
On June 17, 2011, Steinberg met with T.E. and O.C. {See Defs.’ 56.1 Resp. ¶ 240; Steinberg 285.) In this meeting, the girls asked to transfer to a different middle school. {See Defs.’ 56.1 Resp. ¶ 241; Steinberg 315; Boyle 269, O.C. 73-78; T.E. 120-21, 177-79.) The Parties dispute whether Steinberg refused to pay for a bus for O.C. and T.E. {See Defs.’ 56.1 Resp. ¶ 242; O.C. 73-78; T.E. 120-21; 177-79; Boyle 269-70; Steinberg 315-16; Mrs. E. 187-88.) Defendants submit that Stein-berg informed Mrs. E. in June 2011 that T.E. and O.C. could transfer but that he did not have bus transportation available at the time, and requested that Mrs. E. “speak [to] him over the summer.” (Defs.’ 56.1 Resp. ¶ 242; Steinberg 315-17.) Steinberg claims that he “never heard from [Mrs. E.] after that meeting.” (Defs.’ 56.1 Resp. ¶ 242; Steinberg 316.)
The Parties dispute whether the District’s schools had any anti-bullying efforts in place that specifically addressed antiSemitism prior to June 2011. {See Defs.’ 56.1 Resp. ¶¶ 383-85; Steinberg 234-35; Fisch 147; Boyle 47.) The District contends that its anti-bullying and tolerance programs and curriculum were “geared toward tolerance for all races and religions and sometimes specifically mentioned antiSemitism.” (Defs.’ 56.1 Resp. ¶¶ 383-85; Carbone Aff. ¶¶ 1-36 (cataloguing the District’s anti-bullying programs).) The District further argues that anti-Semitism is discussed in the District curriculum. (Defs.’ 56.1 Resp. ¶¶ 383-85; Carbone Aff. ¶¶ 11-13.)
The Parties also dispute whether any letter was ever sent to parents or students about anti-Semitic conduct in a PBCSD school, (Defs.’ 56.1 Resp. ¶ 386), though Defendants dispute this point by referring to letters sent to individual students’ parents, explaining that such letters are always sent to students who receive suspensions, {see Defs.’ 56.1 Resp. ¶ 386; Maazel Deck Exs. 38, 39). As an example, Defendants cite the letter sent to the parents of the student who made a swastika out of pipe cleaners and showed it to T.E. {See Maazel Deck Ex 38.)
In addition, the Parties dispute whether any District employee met with parents as a group to discuss anti-Semitism, {see
B. Procedural History
On March 28, 2012, Plaintiffs filed their Initial Complaint. (See Dkt. No. 1). Plaintiffs filed their Amended Complaint on January 7, 2013. (See Dkt. No. 25.) In their Amended Complaint, Plaintiffs assert violations of their rights under Title VI of the Civil Rights Act against the District. They also assert violations of their right to equal protection under the U.S. Constitution and violations of New York Civil Rights Law against the District and several district administrators, specifically PBCSD Superintendent Philip G. Stein-berg, former Principal of Pine Bush Elementary Steve Fisch, and former Assistant Principal of Crispell Middle School Eric Winter, all in their individual capacities. (See id.) In addition, Plaintiffs name several individuals in their official capacities as school administrators, specifically Stein-berg, Hopmayer, Boyle, and Fisch.
Defendants filed an Amended Answer on April 5, 2013. (See Dkt. No. 37.) On December 6, 2013, Defendants filed their Motion for Partial Summary Judgment (“Defs.’ Mem.”) and supporting papers, (see Dkt. Nos. 50-57), to which Plaintiffs timely responded with a Memorandum of Law in Opposition (“Pis.’ Mem.”) and supporting papers. (See Dkt. Nos. 63, 70-71.) Defendants filed a Reply Memorandum of Law in Support (“Defs.’ Reply”) along with supporting documents on February 21, 2014. (See Dkt. Nos. 81-84.) In addition to the Parties’ filings, on January 15, 2014, the United States Department of Justice requested leave to file a statement of interest in this Action. (See Dkt. No. 61.) The Court granted this request, (see id.), and the Department filed its Statement of Interest of the United States on January 24, 2014. (See Dkt. No. 67.) The Court heard oral argument on July 17, 2014.
II. DISCUSSION
A. Standard of Review
Summary judgment shall be granted where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc.,
“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of New York,
B. Plaintiffs’ Title VI Claims
1. Jewish Identity and Title VI
Title VI prohibits a recipient of federal funds from discriminating on the basis, of race, color, or national origin. See 42 U.S.C. § 2000d.
While Defendants do not seek dismissal of this Action on standing grounds, they sheepishly raise the question of whether Plaintiffs may bring a Title VI claim on grounds of deliberate indifference to antiSemitic harassment, stating that Defendants- have found “no prior case holding that claims of discrimination based on the [Plaintiffs’ identification as Jewish come within Title Vi’s protection.” (Defs.’ Mem. 25.) Defendants appear to correctly identify an area of legal ambiguity, at least to the extent that they suggest that there is a question as to whether religious bias alone can form the basis of a Title VI claim where it is not “deeply intertwined” with national origin.
Regardless of whether religious bias alone can form the basis of a Title VI claim or anti-Semitism can provide a basis for national origin discrimination, courts have regularly found that anti-Semitic harassment and discrimination amount to racial discrimination. See Shaare Tefila Congregation v. Cobb,
Furthermore, the Office for Civil Rights has made clear that “anti-Semitic harassment can trigger responsibilities under Title VI ... when the harassment is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than solely on its members’ religious practices.” (Dear Colleague Letter from Rus-slynn Ali, Assistant Secretary for Civil Rights, Office for Civil Rights, U.S. Dep’t of Education (Oct. 26, 2010) (Maazel Decl. Ex 1, at 4).) Such agency interpretations of ambiguities in an agency’s own regulation merit “substantial deference,” as the courts have “no reason to think that the agency’s interpretations do not reflect its fair and considered judgment on the matter in question.” Biediger v. Quinnipiac Univ.,
Plaintiffs’ Amended Complaint asserts that Plaintiffs faced discrimination on the basis of national origin, specifically their “Jewish ancestry,” rather than on the basis of their religious beliefs or observance. {See Am. Compl. ¶¶ 104, 111, 118.) As summarized above, the harassment Plaintiffs allege did not concern Plaintiffs’ religious beliefs or practices, but rather drew on hackneyed stereotypes, bigoted “jokes,” and painful references to the Holocaust and Naziism. In short, the harassment alleged is rooted in Plaintiffs’ actual or perceived national origin or race rather than just Plaintiffs’ faith or religious practices. The Court finds that, regardless of whether they assert their claims on “national origin” or “race,” Plaintiffs are within their rights to assert a claim under Title VI based on anti-Semitic discrimination.
2. Application to Plaintiffs’ Case
As noted, Title VI prohibits recipients of federal funds from discriminating on the basis of race, color, or national origin. 42 U.S.C. § 2000d. Obviously, this includes prohibition of intentional discrimination. See Alexander v. Sandoval,
Finally, to be hable, a school district must actually know of the harassment; constructive knowledge is insufficient. See Davis,
In considering Defendants’ Motion, the Court must determine whether any genuine issues of material fact exist such that a reasonable jury could find these requirements satisfied. Defendants do not ap
a. Substantial Control
With respect to Defendants’ substantial control, the incidents alleged by Plaintiffs occurred entirely on PBCSD grounds, property (including buses ■ the District hired), or during supervised school trips. See Zeno,
b. Severe and Discriminatory Harassment
Plaintiffs have also identified sufficient facts to support a jury conclusion that T.E., O.C., and D.C. were subjected to severe and discriminatory harassment. These Plaintiffs’ depositions catalogue numerous incidents for each Plaintiff that exceed the sort of “non-actionable ‘simple acts of teasing and name-calling among school children.’ ” Id. at 667 (quoting Davis,
A jury could further conclude that Plaintiffs were improperly denied educational benefits as a result of this harassment. At minimum, Plaintiffs were “deprived of a supportive, scholastic environment free of racism and harassment.” Zeno, 702 F.8d at 667. In addition, Plaintiffs report being emotionally distressed by the harassment; T.E., for example, sought mental health services and was on the verge of a nervous breakdown, (see Mrs. E. 233-34), and D.C. contemplated suicide, (D.C. 82-83). Ultimately, T.E. withdrew from public schooling at Cris-pell. (Mrs. E. 201). Given these facts, a jury could reasonably find that Plaintiffs suffered severe and discriminatory harassment that denied Plaintiffs educational benefits under Title VI. See Zeno,
c. Actual Knowledge
As noted, to hold a school district liable under Title VI, a plaintiff must also demonstrate that the defendant school district actually knew of the harassment-constructive knowledge is insufficient. See Zeno,
Defendants admit that both T.E. and O.C. reported harassment to school administrators. (See Defs.’ Mem. 30, 33.) Such notice is sufficient to provide a basis for a finding of actual knowledge on the part of the District. See Zeno,
With respect to D.C., however, Defendants claim that “there is no evidence that any appropriate person in a position to institute corrective measures on the school district’s behalf had actual knowledge that D.C. was experiencing such harassment.” (Defs.’ Mem. 28 (alterations and internal quotation marks omitted).) Sufficient facts exist to dispute Defendants’ contention.
As an initial matter, the Court acknowledges that D.C.’s testimony that he reported incidents of harassment to his teachers on several occasions is insufficient to establish actual notice. Specifically, D.C. remembered “actually point[ing] out swastikas [in textbooks] to [his] teachers,” but he could not remember the specific teachers to whom he showed them. (D.C. 20.) He reported a swastika in the bathroom to his eighth grade science teacher, and, when it reappeared later, to his Spanish teacher. (See id. at 11-13.) He also told Ms. King, his tenth grade trigonometry teacher, that another student was “making anti-Semitic remarks” in her class, (id. at 93-94), and testified that Ms. King was present and teaching when another student “called [a student] a fucking Jew at the top of his lungs” and then “looked at [D.C.] and ... smirked,” (id. at 94-95).
D.C.’s reports to PBCSD faculty, however, were insufficient to provide actual knowledge to the District. As previously discussed, Title VI only recognizes actual notice when information is provided to a school official with authority to institute corrective measures on the district’s behalf. Despite Plaintiffs’ broad assertion that “[i]n this District, teachers have authority to institute corrective measures on the district’s behalf,” because “[t]eachers ha[ve] essentially unlimited discretion whether and how to give discipline,” (Pis.’ Mem. 49-50 (alterations and internal quotation marks omitted)), Defendants claim that teachers’ disciplinary authority is cabined by the Code of Conduct, (Pis.’ 56.1 Resp. ¶¶ 30-31). In any case, D.C. alleges “rampant anti-Semitic discrimination and harassment” at the hands of “multiple” students at both Crispell and PBHS that a teacher would not likely be able to effectively combat by disciplining individual students. (See Am. Compl. ¶¶ 75-78.)
Moreover, even if PBCSD teachers possessed the control necessary to take corrective action and end the discrimination against D.C., imputing knowledge on the part of the teachers to the District would undermine Title Vi’s clear bar on respon-deat superior liability. See DT,
Nevertheless, there is evidence in the record that administrators knew of the anti-Semitic harassment that D.C. suffered. Testimony from Mr. C. provides one instance in which a school administrator was contemporaneously notified that D.C. was the victim of anti-Semitic harassment. When D.C. was in sixth grade, his father called Boyle and reported that his son “had been the butt of many Jewish jokes,” that an older student on D.C.’s bus had called D.C. a “fucking Jew,” and that his son had been subject to Jewish jokes and slurs from “multiple kids over the course of that year.” (Mr. C. 10-11, 13.) D.C. testified that he later attempted to raise the issue with Boyle himself, but that Boyle “dismissed it” and instead reprimanded D.C. for playing video games in the computer lab. (D.C. 29.) The reporting of harassment to Principal Boyle when D.C. was in sixth grade provided Defendants with actual knowledge of D.C.’s harassment at Crispell. Though the District’s response to this knowledge is disputed by Defendants, this dispute is within the bounds of Title VI.
Plaintiffs further submit that Mr. C. notified Boyle, two Assistant Superintendents, a member of the PBCSD School Board, and Steinberg of his son’s harassment in a 2011 email. (Pis.’ Mem. 48.) However, the relevant email, in which Mr. C. conveys that D.C. “spent 9th grade in fear of Seniors on his bus who pushed him around while chanting “White Power’ and telling him that he should have died in the Holocaust,” was sent in May 2011, when D.C. was nearing the end of the tenth grade and when the older students involved in this harassment would have graduated from the school. (See Maazel Deck Ex. 27.) Moreover, there is no evidence that Mr. C. raised concerns about
A jury could conclude, however, that Mr. C.’s 2011 email sufficiently provided the District with knowledge that D.C. might be harassed at PBHS from that point forward based on the harassment he had suffered in the past. Moreover, complaints about the harassment of other students, including O.C. and T.E., provide actual knowledge to the District that D.C. himself suffered harassment. See DT,
Finally, D.C.’s testimony indicating that anti-Semitic graffiti, including swastikas, was so ubiquitous throughout Crispell and PBHS that “it would be impossible for [teachers and administrators] to miss the swastikas,” (D.C. 11), is sufficient to support a finding that PBCSD administrators were aware of the graffiti and anti-Semitic harassment in general. (See Defs.’ Mem. 24-25.) See Derby Bd. of Educ.,
d. Deliberate Indifference
In addition to the other elements of a Title VI claim, as discussed above, Plaintiffs must prove that the District was deliberately indifferent to the student-on-student harassment. In other words, PBCSD’s action — or inaction — must “at a minimum, [have] caused students to [have] undergone] harassment or [made] them liable to or vulnerable to it.” Zeno,
When weighing the adequacy of a response, a court must accord sufficient deference to the decisions of school disciplinarians. See Zeno,
Here, the District argues that a reasonable jury could not find it to have been deliberately indifferent because its officials appropriately responded to the incidents of harassment of which they were aware and took steps as needed to address anti-Semi-tism more systematically in the school community. However, the undisputed facts, as well as those that the District contests in its Response to Plaintiffs’ Rule 56.1 statement, do not foreclose a jury from coming to the conclusion that the District was deliberately indifferent. Given the numerous incidents of harassment alleged by D.C., T.E., and O.C., which the District does not dispute, a jury could find that the District was aware of such inadequacies, and that the District nonetheless
“Responses that are not reasonably calculated to end harassment are inadequate.” Zeno,
The circumstances that the Second Circuit considered in Zeno are informative to the Court’s consideration of the District’s response in the instant case. There, the court found that “five circumstances should have informed the [district's continued response to student harassment of [the plaintiff].” Zeno,
To be clear, the District need not entirely cleanse its schools of harassment to avoid liability under Title VI. See Davis,
Here, the District argues that it took measures to combat' anti-Semitism in its schools beyond that of the individual disciplining of offending students. PBE Principal Fisch held an assembly to address general bullying issues when T.E. and O.C. were in fifth grade, (see Defs.’ 56.1 Resp. ¶ 122), and later Crispell held a, seminar in which a Holocaust survivor spoke to T.E. and O.C.’s seventh-grade class, (See id. ¶ 223). The Parties dispute the extent to which the District engaged in any other programs to combat anti-Semitism, though Defendants argue that the District’s anti-bullying efforts encouraged tolerance generally and “sometimes specifically mentioned anti-Semitism.” (Id. ¶¶ 383-85.) In addition, District administrators met' with Plaintiffs’ parents and the students themselves to discuss the harassment and possible solutions, including transferring T.E. and O.C. to a middle school other than Crispell. (See id. ¶¶ 240-41.)
Some courts have concluded that general anti-bullying programs (among other actions) prevent a district from being found deliberately indifferent when such programs are used as part of a larger strategy that targets the harassment. See, e.g., Williams v. Port Huron Sch. Dist.,
But conducting assemblies, even ones that specifically address the discrimination complained of, does not immunize a school district from liability, as the school district’s response must be assessed “in light of the known circumstances.” Davis,
And so it is here. A reasonable jury could find • that, while the District may have taken some steps to combat the culture of anti-Semitism in its schools, the handful of assemblies — which addressed only students in T.E. and O.C.’s grade— could not have plausibly changed the antiSemitic sentiments of the student harassers, many of whom were not classmates of T.E. and O.C. These assemblies also did nothing to target anti-Semitism among the students who harassed D.C. See id. at 670 (finding that, despite the defendant school district’s training program that “was for one day only and focused on bullying and sexual harassment, rather than racial discrimination,” morning announcements with “messages meant to inculcate civic and personal values, rather than address racism and discrimination,” an attendance-optional bias-specific training that was not held until “nearly twenty-one months after peer harassment of [the plaintiff] began,” and the formation of an extracurricular student group aiming at addressing prejudice, a reasonable jury could have found the district’s response to have been unreasonable). A reasonable jury could find that the number of incidents of harassment against Plaintiffs and the fact that this harassment did not cease following the District’s assemblies provided ample indication that additional efforts to change the anti-Semitic culture were required. Moreover, the administrators in question appear to have done nothing to attempt to address anti-Semitism in the District across schools, despite the fact that the incidents
Furthermore, a jury could find that the District’s response in instituting programs to target anti-Semitism was unreasonably delayed, as it came several years after D.C. reported harassment in sixth grade and after Mrs. E. reported the swastika graffiti in fifth grade. A jury could reasonably discount the District’s prior anti-bullying program, which the District claims included broad lessons of tolerance and specific mentions of anti-Semitism, as an obviously inadequate remedy for an ongoing problem. See Zeno,
The Court acknowledges that the school administrators here were faced with the difficult task of disciplining students for harassment of Plaintiffs without violating the rights of the offending students. See, e.g., Lopez v. Bay Shore Union Free Sch. Dist.,
The Parties dispute the specifics of a number of incidents, including whether the District was aware of certain incidents of harassment and if — and how — the District responded to the incidents of which it was aware. These disputes render the Court unable to conclusively determine that no reasonable jury would find the District’s response to have been deliberately indifferent, particularly in light of the District’s acknowledgment that the harassment Plaintiffs faced was more than a collection of individual instances of bigotry. Rather, there is ample evidence that the District officials themselves believed that Plaintiffs faced a culture of anti-Semitism in the District and maybe even in the community. (See Mrs. E. 117-19 (testifying that Winter told Mrs. E that “anti-Semitism is prevalent in the community ... and that it’s rather hard to stop something that’s inbred in the community”).) Assuming the disputed facts in the light most favorable to Plaintiffs, a reasonable jury could find not only that the District failed to adequately respond to specific incidents of reported harassment, but also that it failed to take steps as necessary to combat the atmosphere of anti-Semitism which permeated the District’s schools. A jury could further find that the District failed to monitor the effectiveness of the measures it did take or implement measures that would enable the District to track bias-related harassment as distinct from non-bias-related bullying, thereby failing to take the ongoing, iterative steps needed to respond to a culture of bias, as required by Title VI. For these reasons, a jury could reasonably conclude that Defendants were deliberately indifferent in their response to the harassment suffered by D.C., O.C., and T.E.
C. Plaintiffs’ Equal Protection Claims
1. Merits
In addition to Plaintiffs’ Title VI claim against the District, Plaintiffs T.E. and O.C. assert violations of their right to equal protection against several Defendants. As with Title VI, a Plaintiff can prevail on an equal protection claim against school officials based on deliberate indifference to invidious student-on-student harassment. See Gant,
The Court finds that T.E. and. O.C. have satisfied the first of these requirements, as discussed above in the Title VI context. See supra § 11(B)(2)(b).
The Court cannot foreclose the possibility that a reasonable jury might infer the requisite discriminatory intent required to hold individual Defendants Fisch, Steinberg, and Winter liable, based on their responses to T.E. and O.C.’s complaints. While the law does not require administrators’ responses to peer-on-peer harassment to be perfect, the facts, many of which are disputed, suggest that these Defendants’ responses may have been inadequate. Thus, a jury ought to consider whether “the measures taken [were] so inadequate that a degree of discriminatory intent may be inferred — allowing the trier of fact to conclude that Defendants intended for the discrimination to occur,” and thus whether these Defendants are liable under § 1983. Yap v. Oceanside Union Free Sch. Dist.,
With respect to Principal Fisch, his failure to ensure the removal of swastika
With respect to Assistant Principal Winter, both T.E. and O.C. identify incidents where Winter either failed to respond to reported harassment or where Plaintiffs
With respect to Superintendent Stein-berg, Plaintiffs claim that Steinberg also failed to respond to the incident in which T.E. was threatened on the bus, (see Defs.’ 56.1 Resp. ¶¶ 218-21), and the incident in which another student called T.E. “crispy,” (See id. ¶¶ 168-69). His response to Mrs. E.’s complaint about rampant anti-Semitic graffiti is disputed, but Plaintiffs claim that Steinberg told Mrs. E. that when his children had a similar problem, they moved. (See id. ¶¶ 201-02.) When T.E., O.C., and their parents approached him about a similar solution, specifically transferring the girls to another middle school with accompanying financial support, Steinberg is alleged to have denied the request. (See id. ¶¶ 235-43.) While this factor may not be sufficient to prove that Steinberg possessed the requisite intent, it is informative to the analysis nonetheless. See Yap,
Plaintiffs here have offered more “than a proffer indicating the ultimate inadequacy of preventative and curative measures”
2. Qualified Immunity
As Plaintiffs’ claims against the individual defendants do not clearly merit Summary Judgment in Defendants’ favor, the Court must consider whether Fisch, Winter, and Steinberg are shielded from liability by the qualified immunity doctrine. Qualified immunity shields a “government official] from liability for civil damages insofar as [his or her] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Messerschmidt v. Millender, — U.S. ——,
For fifteen years — well before Plaintiffs enrolled in PBCSD — the Second Circuit has clearly prohibited the “deliberate indifference of school boards, administrators, and teachers to invidious harassment in the school environment, of a student by other children” on the basis of the student’s race. DiStiso,
3. Monell Liability
Defendants also seek summary judgment on the issue of whether Plaintiffs’ equal protection claim against the District fails on Monell grounds. It is well-settled that a municipality may not be held liable under § 1983 “by application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati,
a. Final Policymaking Authority
Plaintiffs first contend that the District is liable because “its final policymakers, Steinberg and the principals, are liable.” (Pis.’ Mem. 58). “When an official has final authority over significant matters involving the exercise of discretion, the choices he makes represent government policy.” Nagle v. Marron,
Where, as here, Plaintiffs “seek[ ] to hold a municipality liable for a single decision by a municipal policymaker, [plaintiffs] must show that the official had final policymaking power.” Roe v. City of Waterbury,
Plaintiffs argue that Steinberg was a final policymaker within the District, with the authority to “ensure[ ] students [were] free from harassment and bullying,” and that the principals, including Fisch and Boyle, were final policymakers because the Board delegated disciplinary matters to their discretion. (Pis.’ Mem. 58). Under New York law, however, the Superintendent does not have the authority to “promulgate or otherwise create rules, regulations, or policies of his own.” Port Washington Teachers’ Ass’n v. Bd. of Educ. of Port Washington Union Free Sch. District,
These principles notwithstanding, courts in the Second Circuit are split as to whether a principal may qualify as a final policy
Conversely, “[w]here the final authority for a particular matter is not within the principal’s control or is subject to review by another official or entity, the principal is not the final policymaker with respect to that matter.” Eldridge,
To support their claim that Steinberg and the principals are final policymakers with respect to how and when to impose discipline or address bullying and harassment in their schools, Plaintiffs rely on Steinberg’s testimony that he was the “person that’s in charge of most of the daily operations of the district.” (Stein-berg 27; see Pis.’ Mem. 58). Further, Fisch testified that he had authority to decide what discipline was appropriate for certain misconduct. (See Fisch 256-57). Some courts in the Second Circuit have held that similar evidence was enough to suggest that principals have final policy-making authority for Monell purposes. See Marino,
This Court concludes, however, that here Plaintiffs have failed to establish, “as a matter of law,” that Steinberg or the principals are “final policymakers” with respect to ensuring that students are free from anti-Semitism and bullying. Jeffes,
b. Deliberately Indifferent Policies and Practices
Plaintiffs next contend that the District may be liable under § 1983 for its deliberately indifferent policies and practices. (Pis.’ Mem. 59). The Court agrees. “To establish deliberate indifference[,] a plaintiff must show that a policymaking official was aware of constitutional injury, or the risk of constitutional injury, but failed to take appropriate action to prevent or sanction violations of constitutional rights.” Jones,
“A school district may be held liable for inadequate training, supervision[,] or hiring where the failure to train, hire[,] or supervise amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact.” Bliss v. Putnam Valley Cent. Sch. Dist., No. 06-CV-15509,
Here, Plaintiffs have proffered sufficient evidence to survive summary judgment on Monell grounds based on the District’s response, or lack thereof, to antiSemitic harassment. As discussed, there are issues of material fact as to whether the District had actual knowledge of the harassment that Plaintiffs allege. See supra § 11(B)(2)(c). Moreover, there is specific evidence in the record that the Board had actual notice that school administrators were confronting numerous instances of anti-Semitic bullying. Cf. Jenkins,
Moreover, the emails and the meeting provided the Board with information that anti-Semitic harassment presented administrators and teachers with “difficult choice[s]” concerning discipline and prevention, there was a pattern of school personnel “mishandling the[se] situation[s],” and that those choices had “cause[d] the deprivation of [students’] rights” to be free from harassment and bullying based on their race. Jenkins,
Plaintiffs also “identify ... specific deficiencies] in the [District’s] training program” and have presented enough evidence for a jury to determine whether “th[ose] deficiencies] [are] closely related to the ultimate injury, such that [they] actually caused the constitutional deprivation.” Jenkins,
In light of evidence of the Board’s knowledge of anti-Semitic harassment and its failure to respond in any reasonable way, including through training of school administrators and teachers, a jury could find that the facts demonstrate the District’s “inaction was the result of conscious choice and not mere negligence.” Cash,
D. Plaintiffs’ Official Capacity And State Law Claims
Defendants also move to dismiss Plaintiffs’ claims against Defendants in their official capacity, as such allegations are redundant, given Plaintiffs’ argument that the District is liable under Monell. See Schubert v. City of Rye,
Finally, the claims asserted by Plaintiffs under the provisions of New York Civil Rights Law are governed by similar standards as Plaintiffs’ § 1983 claims. See Lorenz v. Managing Dir., St. Luke’s Hosp., No. 09-CV-8898,
III. CONCLUSION
For the reasons stated above, Defendants’ Motion for Summary Judgment is granted in part and denied in part. In particular, the Court grants the motion to dismiss Plaintiffs’ claims against the individual defendants in their official capacity as redundant with Plaintiffs’ claims against the District. The remainder of Defendants’ Motion is denied. The Clerk of the Court is respectfully requested to terminate the pending motion. (See Dkt. No. 50.)
SO ORDERED.
Notes
. As Plaintiffs were all minors at the time this suit was filed, the Court will refer to them using their initials. In the interest of maintaining Plaintiffs’ relative anonymity, the Court will refer to the parents of these Plaintiffs as each student’s ’’mother” or "father,” or Mr. C. or Mrs. E, rather than disclosing Plaintiffs' surnames.
. Defendants do not move for summary judgment as to Plaintiffs A.R. and D.R.
. PBE educates students from kindergarten through fifth grade, Crispell educates students from sixth through eighth grade, and PBHS educates students in grades nine through twelve.
. Defendants' Reply to Plaintiffs' 56.1 Coun-terstatement reiterates Plaintiffs’ factual assertions before noting whether Defendants dispute or concede these facts for the purposes of the instant Motion. The Court will cite to this document, where possible, for the reader’s ease of reference. As Defendants do not dispute the majority of Plaintiffs' statements, the Court will only .highlight where such factual disputes exist, rather than where they are undisputed.
.The Court recognizes that some of the language that Plaintiffs allege to have been directed against them is undeniably offensive and may be painful for some readers. Nonetheless, the Court does not see fit to censor or euphemize Plaintiffs' allegations in this Opinion. As Plaintiffs' counsel stated at oral argument, "the language matters in this case, and there’s a way in which, by not articulating some of these things, they lose their force.” (See July 17, 2014 Oral Argument Transcript ("July 17, 2014 Tr.”) 39.)
. Defendants' 56.1 Response misquotes T.E.'s testimony. The Court quotes directly from the transcript of T.E.'s testimony.
. Defendants’ 56.1 Response acknowledges that Mrs. E. sent the May 26, 2011 email to "others,” but does not mention Board member Lloyd Greer by name. The copy of the email and Mrs. E’s testimony, however, supports that Greer was one of the individuals that Mrs. E. copied on the email. (Maazel Decl. Ex. 24; Mrs. E. 168-69).
. Although Mrs. E’s email states that one student was involved in the relevant incident, T.E. testified that one student "lifted up his shirt and said ‘[l]ook at the Hasidic Jew,’ ” and then another student said, “ '[l]et’s shove pennies in its mouth.' ” (T.E. 161-65).
. Title VI of the Civil Rights Act of 1964, provides that
[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 U.S.C. § 2000d.
. In a recent Summary Order, the Second Circuit suggested, without citation, that religious bias that is “deeply intertwined’’ with national origin bias may provide grounds for a Title VI claim, but did not address the issue, because "even if [the court] were to decide it in plaintiffs’ favor, we would conclude that the complaint was properly dismissed for the reasons stated in [the] text.” Kajoshaj v. N.Y.C. Dep’t of Educ.,
. Courts generally interpret Title VI and Ti-tie IX consistently with one another. See
. One court addressed this issue in the context of sexual harassment of a student by a teacher, however, such Title IX cases are not . analogous to Title VI peer-harassment cases. See Romero v. City of New York,
. D.C.’s § 1983 claims against individual defendants were previously dismissed, per Mag
. In Gant ex rel. Gant v. Wallingford Board of Education, the Second Circuit noted that the Supreme Court articulated a severity requirement in Title IX for peer-harassment claims in Davis, finding that school officials could not be liable under Title IX for failing to respond to harassment consisting of "simple acts of teasing and name-calling among school children," even when those acts were gender-based.
. Defendants have repeatedly noted that Principal Fisch and Superintendent Steinberg are themselves Jewish. (See, e.g., Defs.’ Mem. 35-36; Defs.' Reply 26). "Some courts have inferred that it is less likely that a member of a protected group will discriminate against a member of the same group,’’ at least in the context of employment discrimination. Meder v. City of New York, No. 06-CV-504,
. This provision is applicable to central school districts. See N.Y. Educ. Law § 1804(1) ("Each such central school district shall be managed by a board of education consisting of five, seven or nine members, which board shall have the same powers and duties as boards of education in union free school districts as prescribed by this chapter.”)
. Under New York law, a superintendent may be a final policymaker for some purposes. Specifically, the Second Circuit has held that under New York law, “because no potential employee can obtain full school board approval without the superintendent’s recommendation,, [the superintendent] may ... be deemed the final decisionmaker with respect to personnel appointments, because his recommendations are essentially those of the governmental body.” Nagle v. Marron,