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Doe v. New York City Department of Education

United States District Court, E.D. New York

July 30, 2018

JOHN DOE #1, a minor by his parent and natural guardian PARENT #1; JOHN DOE #2, a minor by his parent and natural guardian PARENT #2; JOHN DOE #3, a minor by his parent and natural guardian PARENT #3; JANE DOE #4, a minor by her parent and natural guardian PARENT #4; JANE DOE #5, a minor by her legal guardian GRANDPARENT #5; JANE DOE #6 a minor by her legal guardian GRANDPARENT #5; JOHN DOE #7, a minor by his parent and natural guardian PARENT #7; JANE DOE #8, a minor by her parent and natural guardian PARENT #8; JOHN DOE #9, a minor by his parents and natural guardians PARENT # 9A and PARENT #9B; JANE DOE #10, a minor by her parent and natural guardian PARENT #10; JANE DOE #11, a minor by her parent and natural guardian PARENT #11; JANE DOE #12, a minor by her parent and natural guardian PARENT #12; JOHN DOE #13, a minor by his parent and natural guardian PARENT #13; JANE DOE #14, a minor by her parent and natural guardian PARENT #14; JANE DOE #15, a minor by her parent and natural guardian PARENT #15; JOHN DOE #16, a minor by his parent and natural guardian PARENT #16; JOHN DOE #17, a min or by his parents and natural guardians PARENT #17A and PARENT #17B; JOHN DOE #18, a minor by his parents and natural guardians PARENT #18A and PARENT #18B; JOHN DOE #19, a minor by his parent and natural guardian PARENT #19; JANE DOE #20, a minor by her parent and natural guardian PARENT #20; JOHN DOE #21, a minor by his parent and natural guardian PARENT #21; JOHN DOE #22, a minor by his parent and natural guardian PARENT #22; and JOHN DOE #23, a minor by his parent and natural guardian PARENT #23, on behalf of all persons similarly situated, Plaintiffs,



         Twenty-three New York City ("NYC") public-school students (the "Plaintiffs") challenge the alleged failure of the NYC Department of Education (the "DOE") to prevent or adequately redress bullying in public schools. (See 2d Am. Compl ("SAC") (Dkt. 20).) Plaintiffs allege that, although the DOE has issued regulations intended to address violence and other forms of bullying in schools (including both student-on-student and staff-on-student abuse), schools routinely fail to comply with these regulations. (Id. ¶ 149.) Plaintiffs contend that this alleged failure violates the procedural due process, substantive due process, and equal protection guarantees of the Fourteenth Amendment, as well as the Individuals with Disabilities in Education Act ("IDEA"), Article XI of the New York State Constitution, and Section 7803 of the New York Civil Practice Law and Rules. (Id. ¶¶ 967-77.)

         The parties have reached a proposed settlement, which the court preliminarily approved on May 18, 2018. (Am. Proposed Settlement ("APS") (Dkt. 85-1.) Before the court are two motions: (1) a motion to intervene for the limited purpose of objecting to a proposed settlement by non-party Legal Aid Society ("LAS"); and (2) Plaintiffs' motion for final approval of the proposed settlement agreement. (LAS Mot. to Intervene (Dkt. 94); Pls. Mot. for Final Approval ("Pls. Mot.") (Dkt. 106).) LAS seeks intervention as a matter of right pursuant to Federal Rule of Civil Procedure 24(a); or, as an alternative, permissive intervention under Rule 24(b). LAS additionally requests that, in the event that its motion to intervene is denied, the court grant LAS amicus curiae status and consider its objections to the proposed settlement on that basis. (LAS Mem. in Supp. of Mot. to Intervene ("LAS Mem.") (Dkt. 95) at 19.) LAS filed its objections to the proposed settlement along with its motion to intervene. (LAS Objs. to the APS ("LAS Objs.") (Dkt. 96-1).) The DOE opposes LAS's motion to intervene.[1] (See DOE Mem. in Opp'n to LAS Mot. to Intervene and Objections ("DOE Mem.") (Dkt. 99).) The court held a fairness hearing on June 26, 2018, at which it heard statements regarding the motion to intervene and the merits of the proposed settlement.

         Having considered all written submissions and the statements at the fairness hearing, LAS's motion to intervene is DENIED, but the court grants LAS amicus curiae status and considers its objections on that basis. Additionally, Plaintiffs' motion for final approval of the settlement Agreement is GRANTED and the amended proposed settlement is APPROVED.

         I. BACKGROUND

         A. Plaintiffs' Alleged Harm

         According to Plaintiffs, violence is endemic in NYC public schools, particularly those serving disproportionately poor and minority communities. (SAC ¶¶ 2-6.) In particular, Plaintiffs allege that they have been harmed by student-on-student bullying (which includes violence, taunting, and other forms of social exclusion), staff-on-student violence (including corporal punishment), and staff-on-student verbal abuse. This results from the DOE's alleged failure to implement a comprehensive system to report, investigate, and remediate these problems. (E.g., Id. at 1-17.)

         Plaintiffs state that their parents were often unable to report incidents because DOE staff ignored them or were otherwise repeatedly unavailable. (See. e.g., id ¶ 154 (alleging that a principal failed to respond to a parent who made multiple attempts to report a bullying incident).) Plaintiffs further allege that, even when parents were able to schedule meetings with DOE staff to report allegations, DOE staff would often cancel those meetings or fail to document the parents' allegations. (See, e.g., Id. ¶ 250 (alleging that a student reported an incident to a school dean who did not document the incident or prepare any reports); Id. ¶ 581-583 (alleging that a principal cancelled a meeting with a parent and did not respond to requests to reschedule).)

         Plaintiffs also allege that DOE staff regularly failed to investigate complaints. When Plaintiffs would follow up with DOE staff about the complaints, the latter refused to provide updates or documentation regarding the incidents. (See, e.g., id ¶ 240 (alleging that a principal refused to provide a parent with an incident report, claiming the parent was not entitled to it); Id. ¶ 752 (alleging that an assistant principal refused to inform a parent of investigative or remedial steps taken by the DOE, other than to claim that he "took care of it").)

         Plaintiffs further allege that DOE staff did not adequately redress substantiated reports. Plaintiffs point to a number of examples inadequate responses, including: "blam[ing] the victim", see Id. ¶ 498; telling parents that it was impossible for the school to address the problem, see Id. ¶ 728; taking actions that were detrimental to the victim's education, such as removing them from the class in which the bullying took place, see id ¶ 220; and failing to take adequate disciplinary measures against the alleged bullies and abusive staff members, see Id. ¶ 859. Furthermore, Plaintiffs allege that when some parents requested that their children be transferred to another DOE school, DOE staff refused, sometimes providing false information regarding transfer procedures. (See, e.g., Id. ¶ 368 (alleging that a principal falsely told a parent that a police report was required for a transfer).)

         B. The DOE's Existing Procedures

         As the Plaintiffs explain, the DOE is subject to a number of laws that require it to take action to prevent and correct bullying and teacher-on-student violence. At the federal level, the No Child Left Behind Act requires school systems to permit students to leave unsafe schools. (Id. ¶ 57.) The United States Department of Education has also issued guidance advising that schools are responsible for responding to harassment (Id. ¶ 58) and that bullying can deprive disabled students of the free and adequate public education to which they are entitled under the Individuals with Disabilities Education Act ("IDEA") (Id. ¶ 137). At the state level, in 2010, the New York state legislature passed the Dignity for All Students Act ("DASA"), N.Y. Educ. Law §§ 10-18, which aims to prohibit bullying and harassment and requires school districts to, among other things, (1) adopt codes of conduct and comprehensive compliance systems for identifying and correcting bullying and harassment; (2) investigate all reported acts of in-school violence; and (3) prevent retaliation against those who report bullying and harassment. (Id. ¶¶ 69-81.)

         The DOE has implemented DASA through a series of Chancellor's Regulations. According to Plaintiffs, five of these regulations are not self-executing and are widely ignored by DOE schools and staff. (Id. ¶¶ 95, 108, 115.) The first is Regulation A-832, which prohibits bullying and harassment and establishes a mandatory reporting system for incidents of bullying. (Id. ¶ 83.) Among other things, DOE staff who witness an incident of discrimination, harassment, intimidation, or bullying must verbally report the incident to their principal or principal's designee within one day and file a written report within two days. (Id. ¶ 86.) All complaints of bullying must be entered into an online database (the "Online Occurrence Reporting System" or "OORS") within 24 hours. (Id.) Within five days, the principal or designee must undertake an investigation of the reported incident, including by interviewing the alleged victim and bully, as well as any witnesses; asking the alleged bully for a written statement; advising the parents of the alleged victim and bully of the allegations and whether those allegations are substantiated; take appropriate action; and follow up to ensure that the bullying has stopped. (Id. ¶¶ 87-91.) Principals must also train their staff on DASA compliance. Id. ¶93.)

         Second, Regulation A-420 prohibits the use of corporal punishment by DOE staff. (Id. ¶¶ 96-108.) Staff are authorized to use force in a narrow set of circumstances, including for self-defense and the defense of others, or to remove or restrain a disorderly student. (Id. ¶ 98.) Regulation A-420 also establishes a reporting regime similar to that of Regulation A-832. (Id. ¶¶ 99-108.)

         Third, Regulation A-421 concerns "verbal abuse" of students by teachers and other DOE personnel. (Id. ¶¶ 109-115.) Like A-832 and A-420, this regulation requires the prompt reporting of any incident of "verbal abuse," including language about or toward students that belittles, embarrasses, or subjects them to ridicule, or worse. (Id. ¶ 110.)

         Fourth, Regulation A-449 addresses "safety transfers," by which a parent may choose to transfer a student to a different school if the student is a victim of a violent criminal offense on school property or if it is determined that the student's presence at the school is unsafe for him or her. (Id. ¶¶ 116-126.)

         Fifth, Regulation A-450 addresses "involuntary transfers." (Id. ¶¶ 127-135.) If a student's behavioral or academic record is unsatisfactory, a school may "explore" with a parent the possibility of a transfer to another setting, which may take place only if the parent consents, the Borough Director of Student Suspensions approves the transfer, and the principal complies with the prescribed procedures, including by holding an initial hearing and obtaining a final decision from the Borough Director. (Id. ¶ 129.)

         C. Proposed Settlement Agreement

         On March 14, 2018, the parties reached an initial proposed settlement. (Proposed Settlement (Dkt. 70-1).) They amended the proposed settlement on May 7, 2018, to preserve claims raised by other proposed interveners in this litigation. (APS.)

         Plaintiffs claim that the amended proposed settlement addresses each of the issues they have identified: (1) parents' inability to file complaints (and the DOE's inability to properly document and track complaints); (2) the DOE's failure to investigate complaints; and (3) the DOE's failure to remediate substantiated cases. (Pls. Mem. in Supp. of Mot. For Final Approval of Settlement ("Pls. Final Approval Mem.") (Dkt. 106-1) at 4.) The settlement also provides means by which Plaintiffs can monitor and enforce the DOE's compliance with the settlement. (APS ¶¶ 68-71.)

         1. Filing, Documenting, and Tracking Complaints

         To improve the ability of parents to file and track their complaints, the DOE agrees to propose revisions to Chancellor's Regulation A-832. These revisions would introduce an electronic reporting system to allow parents to report bullying electronically and to learn when their complaints have been substantiated or resolved. (APS ¶¶ 33-35; see also Id. ¶¶ 43-48 (describing requirements for reporting and tracking systems).) This system will be available in multiple languages, generate a confirmation of receipt and a tracking number for each complaint, and provide parents with a Notice of Determination once the investigation is resolved. (Id. ¶ 43(b), (d)(i)-(iii).) If a parent does not receive a Notice of Determination within ten school days of filing a complaint, the reporting system will generate an email providing the parent with the contact information for DOE staff whom they can contact. (Id. ¶ 43(d)(iv).) The DOE will also provide parents with additional information about how to file complaints. (Id. ¶ 38.)

         To improve its own processes for documenting and tracking complaints, the DOE will direct every "[s]chool staff member who witnesses, knows about, or obtains notice or information about Student-on Student Bullying, Harassment, Intimidation, and/or Discrimination to promptly report... the alleged act to the principal [or the principal's liaison] within one school day" or face disciplinary measures. (Id. ¶ 39.) Principals will be required to submit complaints of bullying to an electronic database and inform parents of bullying complaints filed by other parties. (Id. ¶ 40.) The DOE will also communicate the settlement's requirements to principals and superintendents within the first ten days of each school year, and mandate that schools include anti-bullying techniques in its annual training sessions for teachers and staff. (Id. ¶¶ 37(a), 67.) Principals will then communicate the settlement's requirements to all teachers and staff by October 31 of every school year. (Id. ¶ 37(c).)

         2. Investigating Complaints

         Under the terms of the settlement, the DOE will direct principals to complete investigations of all bullying complaints within ten school days, except when there are "Extenuating Circumstances" (which DOE staff must document).[2] (Id. ¶ 40.) Additionally, principals will be required to document more investigation-related information than before; for example, they must obtain written statements from the alleged victim, accused offender, and any witnesses "where feasible." (Id. ¶ 40(C).)

         To assist schools in investigating complaints, the DOE will also designate a "Central Team" and an "Escalation Staff." The Central Team will, among other things, generate monthly reports regarding whether schools are complying with certain provisions, analyze trends across the city, and provide targeted support to schools that need additional help. (Id. ¶ 56.) The Escalation Staff will coordinate the completion of bullying investigations in certain situations (e.g., if a victim alleges that she was retaliated against for making a complaint or if the school fails to make a determination within ten days in the absence of extenuating circumstances). (Id. ¶ 60.) Once it assumes responsibility for completing an investigation, the Escalation Staff may perform the investigation itself or refer the investigation to appropriate non-school-based DOE personnel. (Id.62.)

         3. Remediating Substantiated Cases

         The settlement requires principals to provide support[3] to victims of "Material Incidents, "[4]and to develop, implement, and document individualized support plans ("ISPs") for victims of multiple Material Incidents in the same school year. Furthermore, the DOE agrees to approve any school-transfer request made by a parent whose child was the victim of a Material Incident, except in situations where the bully is another student who (for whatever reason) will no longer attend the victim's school. (Id. ¶ 64.) The DOE will also approve any request to transfer out of a school made by a parent on the grounds of corporal punishment or staff-on-student verbal abuse if it is determined that the student will no longer be safe at the school. (Id. ¶ 65.)

         4. Monitoring and Enforcing the Settlement

         According to the settlement, the DOE will provide Plaintiffs' counsel with semiannual reports for three years following the launch of the anticipated electronic reporting system. (Id. ¶ 68.) These reports will contain extensive data about the prevalence of bullying complaints and every school's response. (Id. ¶¶ 69-70.) Plaintiffs' counsel will be able to review these reports and deliver objections in writing to the DOE. (Id. at ¶ 71.) Within five business days of the DOE's receipt of any such objections, Plaintiffs and the DOE shall meet and confer to discuss modifications to the DOE's procedures and policies for addressing bullying complaints. (Id.) The settlement also provides that, while the court retains jurisdiction to enforce this settlement, the class members will not "impose [or] seek to have imposed, in this or in any other litigation, any additional systematic obligations upon [the] DOE... except as a remedy" in connection with a motion to enforce the settlement. Plaintiffs will only move to enforce the settlement if either the DOE fails to implement it or the Plaintiffs can demonstrate the DOE's "systematic failure" to comply with certain provisions of the settlement.[5] (Id. ¶¶ 72-73.) The court's retention of jurisdiction to enforce the settlement will last between four and six years. (Id. ¶ 75.)

         D. Notice of Proposed Settlement, LAS's Motion to Intervene, and Fairness Hearing

         Following the court's provisional certification of the Class and preliminary approval of the settlement agreement, the DOE and Plaintiffs' counsel timely posted the Notice of Proposed Settlement of Class Action on their respective websites until the conclusion of the June 26, 2018, fairness hearing. (See Decl. of Evan Schnittman ("Schnittman Decl.") (Dkt. 93) ¶ 3; Decl. of Jim Walden (Dkt. 105) ¶ 3.) Additionally, the DOE posted the notice in DOE Suspension Hearing Offices and Family Welcome Centers until the end of the fairness hearing, and caused it to be published once in the New York Daily News and El Diario, (See Schnittman Decl. ¶ 4.)

         On June 5, 2018, LAS informed the court of its desire to intervene for the limited purpose of objecting to the proposed settlement. (See LAS June 5, 2018, Letter (Dkt. 90).) On June 14, 2018, LAS filed a motion to intervene along with a supporting memorandum and proposed objections to the settlement. (LAS Mot. to Intervene; LAS Mem.; Affirm Of Dawne Mitchell ("Mitchell Aff.") (Dkt. 96); LAS Objs.) LAS indicated that it was not seeking to delay the court's fairness hearing, but merely wanted the court to consider its objections in determining whether the terms of the settlement are fair, reasonable, and adequate. (See LAS Letter at 6-7; Mitchell Aff. ¶ 36.)

         The court held a fairness hearing on June 26, 2018. Plaintiffs reported that there were no objections to the proposed settlement other than those of LAS, and that the settlement was the product of arms-length negotiations conducted over the course of more than a year. (June 26, 2018, Fairness Hr'g Tr. (Dkt. No. pending) 3:22-24, 4:9-5:4.) Counsel for both Plaintiffs and the DOE also argued that LAS's objections to the settlement lack merit. (Id. 8:13-9:11, 12:14-14:2.) Additionally, counsel for LAS appeared at the hearing to discuss LAS's objections. (Id. 20:13-31:9.)

         At the end of the hearing, the court provided an opportunity for any member of the class to speak as to the class settlement, and set a deadline of July 3, 2018, for written submissions by class members. (Id. at 35:4-24; 37:19-21.) Plaintiffs submitted two letters from parents of class members on July 3, 2018. One indicated support for the settlement. (Letter from Carol Willson (Dkt. 105-1).) The other-written by the parent of a student accused of bullying-expressed concern that the settlement only helps bullying victims and does not provide resources or supports for students accused of bullying. (Letter from Vicki Brown ("Brown Letter") (Dkt. 105-2).)


         LAS moves to intervene for the limited purpose of objecting to the proposed settlement as of right pursuant to Rule 24(a) or, alternatively, by permission of the court pursuant to Rule 24(b). The DOE argues that LAS's motion should be denied because LAS lacks standing to object to the settlement and additionally does not meet Rule 24's requirements for intervention. (DOE Mem. at 4-10.) For the following reasons, the court agrees with the DOE and DENIES LAS's motion.

         A. Standing to Object to a Proposed Class-Action Settlement

         1. Le ...

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