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T.E. v. Pine Bush Cent. Sch. Dist.

United States District Court, S.D. New York

November 4, 2014

T.E., O.C., and D.C., et al., Plaintiffs,

Decided November 3, 2014

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For Plaintiffs: Adele Phyllis Kimmel, Esq., Public Justice, Washington, DC.

For Plaintiffs: O. Andrew F. Wilson, Esq., Ilann M. Maazel, Esq., Zoe Antonia Salzman, Esq., Emery Celli Brinckerhoff & Abady, L.L.P., New York, NY.

For Plaintiffs: Michael David Meth, Esq., Meth Law Offices, P.C., Chester, NY.

For Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, John Boyle, Steve Fisch, Robert Peters, and Aaron Hopmayer, Defendants: Joan M. Gilbride, Esq., Kaufman, Borgeest & Ryan, L.L.P., New York, NY.

For Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter John Boyle, Steve Fisch, Robert Peters, and Aaron Hopmayer, Defendants: Maree Sneed, Esq., Hogan Lovells, L.L.P., Washington, DC.

For Pine Bush Central School District, Pine Bush Central School District Board of Education, Philip G. Steinberg, Eric Winter John Boyle, Steve Fisch, Robert Peters, and Aaron Hopmayer, Defendants: Laura Wong-Pan, Esq., Thomas Drohan Waxman Petigrow & Mayle, L.L.P., Hopewell Junction, NY.

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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.[1] Plaintiffs' claims arise from anti-Semitic harassment that Plaintiffs allegedly suffered while they were enrolled in the District. Defendants move for summary judgment with respect to the claims brought by T.E., D.C., and O.C., pursuant to Rule 56 of the Federal Rules of Civil Procedure.[2]

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For the following reasons, Defendants' Motion is granted in part and denied in part.


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" ).[3] In addition to the District itself, Plaintiffs named the PBCSD Administrators who oversaw these schools as Defendants. These Defendants include Philip Steinberg, (" Steinberg" or " the Superintendent" ), the Superintendent of PBCSD from 2008 to 2013; Steve Fisch (" Fisch" ), the Principal of PBE from 1991 to 2011; John Boyle (" Boyle" ), the Principal of Crispell since 2002; Robert Peters (" Peters" ), the Assistant Principal of Crispell from 2007 to 2010; Eric Winter (" Winter" ), the Assistant Principal of Crispell from 2010 to 2011; and Aaron Hopmayer (" Hopmayer" ), the Principal of PBHS from 2007 through the time of his deposition. (Fisch Deposition Tr. (" Fisch" ) 17 (Wilson Decl. Ex. 4 (Dkt. No. 79)); Boyle Deposition Tr. (" Boyle" ) 16-17, 20 (Wilson Decl. Ex. 5 (Dkt. No. 79)); Hopmayer Deposition Tr. (" Hopmayer" ) 28 (Wilson Decl. Ex. 7 (Dkt. No. 79)); See Declaration of Ilann M Maazel (" Maazel Decl." ) Ex. 2 (Dkt. No. 63) (chart summarizing administrators that were in charge during the relevant times and at the relevant locations to Plaintiffs' claims)).)

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); Pls.' Response to Defs.' Rule 56.1 Statement (" Pls.' 56.1 Resp." ) (Dkt. No. 71); Defs.' Reply to Pls.' 56.1 Counterstatement (" Defs.' 56.1 Resp." ) (Dkt. No. 81).)[4] Plaintiffs' allegations catalogue years of harassment at the hands of their fellow students, but a few key incidents, and the District's responses thereto, are informative for the purposes of the instant Motion.[5]

1. Plaintiff D.C.

D.C. is a male student who claims to have suffered anti-Semitic harassment and

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to have been subject to physical and verbal threats during his enrollment in PBCSD from sixth through twelfth grade. ( See Defs.' 56.1 Resp. ¶ 50; D.C. Deposition Tr. (" D.C." ) 28 (Wilson Decl. Ex. 11 (Dkt. No. 79)).) He alleges that, throughout this time, other students physically and verbally threatened him by " pellet[ing]" change at him, telling him he " was going to be burned in an oven," and that " if [he] did anything [in response to this harassment,] that they knew where [he] lived." (Defs.' 56.1 Resp. ¶ ¶ 51-53; D.C. 28.) D.C. also witnessed " swastikas everywhere in the high school and in the middle school" that he testified " would be impossible" for teachers to miss. (Defs.' 56.1 Resp. ¶ 55; D.C. 11.) He further describes " fairly constant" harassment, during his years in PBCSD, (D.C. 66-67), during which time he was called " countless" names, including " dirty jew," " filthy jew," " stupid Jew," " fat Jew," " Jew faggot," " fucking Jew kike," " ashes," " dust," and " mocky fuck." (Defs.' 56.1 Resp. ¶ ¶ 56-57; D.C. 68-69.)

When D.C. was in sixth grade, a girl who " bull[ied 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 follow-up 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.' 56.1 Resp. ¶ ¶ 306-07; D.C. 11-12.) The

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teacher saw the swastika, and it was removed. ( See Defs.' 56.1 Resp. ¶ ¶ 308-09; D.C. 11-13.) However, " a couple days" later, the swastika reappeared and D.C. reported it to his Spanish teacher. (Defs.' 56.1 Resp. ¶ ¶ 309-10; D.C. 11-12.) Although D.C. could not be sure whether the second swastika he reported was removed, he testified that other swastikas in the bathroom were not removed. ( See Defs.' 56.1 Resp. ¶ 311; D.C. 13.)

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. 85-86.) 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.' 56.1 Resp. ¶ 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 teachers

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" a couple of times," (Defs.' 56.1 Resp. ¶ 303; D.C. 20), but Plaintiffs claim that the teachers and District officials never effectively addressed the problem and that swastikas remained in " a majority of the textbooks," (Defs.' 56.1 Resp. ¶ 305; D.C. 17-19). The District disputes the textbook graffiti, claiming that a search of " almost 500 textbooks" used for " at least ten years at Crispell" yielded " no such swastikas" and only two books with graffiti that were " even arguably anti-Semitic." (Defs.' 56.1 Resp. ¶ ¶ 304-05; Affidavit of John Boyle (" Boyle Aff." ) ¶ ¶ 14-16 (Dkt. No. 73).)

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 graffiti 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 Decl. 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 " [w]hat's the big deal" to Mrs. E. ( See Defs.' 56.1 Resp. ¶ 105.) After

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Mrs. E. persisted, Fisch agreed to " talk with the kids." (Defs.' 56.1 Resp. ¶ 107; Mrs. E. 58.) He found swastikas in both students' planners, spoke with the students for 15-20 minutes, and further spoke with Superintendent Steinberg, who did not recommend discipline. ( See Defs.' 56.1 Resp. ¶ ¶ 108-10, 113; Fisch 59-63; Steinberg Deposition Tr. (" Steinberg" ) 133, 169-70 (Wilson Decl. Ex. 1 (Dkt. No. 79)).) The Parties dispute whether any " disciplinary consequences" resulted from this incident, as Defendants assert that an oral warning or conference with the Principal is considered discipline under the District's Code of Conduct. ( See Defs.' 56.1 Resp. ¶ 111.) Fisch testified that he spoke with the offending students about " the significance of the swastika" and " what an offensive symbol it was to a particular group [including Jewish people]." (Fisch 62.)

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 graffiti 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; Maazel 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 graffiti] 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 graffiti and no one was disciplined

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as a result. ( See Defs.' 56.1 Resp. ¶ 95; Fisch 163.)

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.)[6] The Parties dispute whether discipline resulted from the reporting of these incidents. Defendants claim that Winter " investigated by speaking with T.E." and the offending students, and that Winter gave one student an oral warning and counseled him about the statement. (Defs.' 56.1 Resp. ¶ 169.) Defendants further claim that Winter determined that the statement by the second student had been " made eight months before the report" and that " T.E. had called him 'fat,'" but otherwise do not dispute Plaintiffs' assertion that no discipline resulted from this incident. ( Id.) Moreover, Defendants do not dispute Plaintiffs' assertion that when Mrs. E. told Winter that T.E. was " coming home on a daily basis upset and afraid to go to school . . . that there [were] swastikas everywhere [including] in her classroom, [and] that its being ignored, th[at] kids are allowed to treat her this way," Winter responded by saying that " anti-Semitism is prevalent in the community . . . and that it's rather hard to stop something that's inbred in the community." (Defs.' 56.1 Resp. ¶ 169(d-e); Mrs. E. 117-19.)

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

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Complaint or Winter's notes, but Defendants do not dispute that the incident occurred. ( See Defs.' 56.1 Resp. ¶ 207.)

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 graffiti 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-Semitism, apart from the graffiti. ( See Defs.' 56.1 Resp. ¶ 176(d); Winter 426.) Defendants do not dispute Plaintiffs' contention that no discipline was imposed with respect to this graffiti. (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 anti-Semitic 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.)[7]

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

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had drawn a picture on his stomach and " said it is a Hasidic Jew, so let's shove pennies in his mouth." (Defs.' 56.1 Resp. ¶ 213; Maazel Decl. Ex. 25; T.E. 161-65.)[8] Defendants do not dispute that the offending student was not disciplined for this incident, though they note that he refused to return to the school and withdrew from the District. ( See Defs.' 56.1 Resp. ¶ 213.)

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 graffiti " 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. ¶ ¶ 202-03; 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 graffiti 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

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investigation was conducted or that nobody was disciplined with respect to this incident, ( see Defs.' 56.1 Resp. ¶ 274).

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 ...

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