A lawsuit charging that an upstate New York school district failed to respond adequately to years of pervasive anti-Semitic bullying gained some heavy support last week when federal authorities backed the plaintiff’s case.
U.S. Attorney Office for the Southern District Preet Bharara filed a memorandum saying that there was enough evidence to show that the Pine Bush Central School District was so indifferent to name-calling, threats and physical attacks against Jewish students that officials violated Title VI of the Civil Rights Act.
A Jan. 24 memorandum of interest issued by Southern District of New York U.S. Attorney Preet Bharara’s office urged the judge to deny the Pine Bush lawyers’ motion to throw out the case. Bharara argued that evidence shows that the school district’s efforts to stop the anti-Semitism were “clearly unreasonable,” because it “continued its practices despite their demonstrated inefficacy,” did not implement mandatory requirements to fix the problem and “ignored multiple signals that greater, more directed action was needed.”
The initial lawsuit was filed in November, when three Jewish families sued the district, the school board and six school officials claiming that they turned a blind eye to harassment, telling two Jewish girls that they were “just looking for trouble and causing [their] own problems,” that they should stop reporting anti-Semitism “every single day” and urging a victim’s family to move out of the district.
Gov. Andrew Cuomo has reacted strongly to the allegations, calling for an investigation and mentioning them in his State of the State address this month.
In December, the school district’s lawyer filed a brief to have the case dismissed, arguing that although anti-Semitic bullying happened, they cannot be held responsible because the school officials — including several who are Jewish — did everything they could to stop it.
Last week, the lawyer for the students’ families replied, detailing dozens of incidents of anti-Semitic harassment that followed the students from elementary to high school, and arguing that the administration responded to complaints “with callousness, apathy, threats and open hostility.”
“It’s an overwhelming case of pervasive anti-Semitism affecting a number of children over a number of years, and it’s an overwhelming case of apathy, hostility and indifference by the school district to this enormous problem,” Ilann Maazel, the plaintiff’s attorney, told The Jewish Week in a telephone interview Monday.
One student, called W.H. in court documents, said anti-Semitic incidents “happened on a daily basis” including swastikas “all over the high school” and on students’ clothing, name-calling including “kike,” “stupid Jew” and “f—-g Jew.” Holocaust jokes, Hitler salutes and white power chants were common.
Student S.H. was so afraid of retaliation that she signed her statement “Jane Doe.” She testified that when a student drew a “giant swastika” on her junior varsity soccer jersey, the coach let the perpetrator “select her own punishment.” She chose to sit out the next game, causing S.H. to become “an outcast” on the team.
Another student, T.E., reported swastikas repeatedly drawn on her school desk and said students called her “crispy” and said she “should have burned” in the Holocaust. She claimed she was repeatedly threatened on the school bus, including by a 12th grade boy who threatened to “kick her ass” when she got to high school, according to the memorandum.
Her friend, known as O.C, was allegedly called “Jesus killer,” Christ killer, damn Jew, stupid Jew [and] dirty, disgusting Jew.” During recess, two students held O.C.’s hands behind her back and tried to shove a quarter down her throat, according to the complaint. Like T.E., she said she found swastikas drawn on her yearbook picture, her school locker and repeatedly on her school desk, once accompanied by words, which were either “die Jew” or “damn Jew.” She also had pennies thrown at her for “an entire month” in recess, she alleged.
O.C.’s older brother, D.C., reported being punched in the stomach and told he was going to hell because he was Jewish, spat upon, slapped in the face, pelted with change and told that if he “did anything … they knew where [he] lived.” One student called him “ashes” and threatened to “burn [him] in an oven,” he said.
Like the others, D.C. said he was called names including “f—g Jew kike.” Students constantly pretended to salute Hitler and sang “white power songs” in the cafeteria about “killing Jews and washing off their blood,” according to court papers.
“Every day seemed like it was the wors[t] day of my life, and when I got home I was constantly considering just killing myself … and when I had to go to school the next day and the torture persisted, I kicked myself for don’t doing it when I had the chance,” D.C. testified.
School officials aren’t contesting the anti-Semitic atmosphere in the district but say they were not indifferent to it.
In their motion to dismiss, the district’s attorneys say school officials didn’t address the harassment against D.C. because (as D.C. admits) he never reported it. When anti-Semitism was reported, they say they ordered graffiti to be removed, investigated allegations of misconduct, and “when they could be identified, disciplined the children engaged in improper behavior.”
They argue that the school addressed anti-Semitism in its annual anti-bullying assemblies, “researched anti-Semitism and sought out resources” from federal and state agencies and had a Holocaust survivor speak to a seventh-grade. It is the only district in the area to offer an elective on the Holocaust, the defense claims.
But the U.S. attorney sided with the plaintiffs, arguing that the district’s efforts to check the harassment were halfhearted at best.
“[W]hile a court should not second-guess the disciplinary decisions made by school administrators … the district may not ‘ignore the many signals that greater, more directed action [is] needed,’” writes assistant U.S. Attorney Michael J. Byars.
He agreed with the plaintiffs that treating cases of harassment on an individual basis is not enough — the district must follow the U.S. Department of Education’s mandate to take steps to end the culture of anti-Semitism such as separating the accused harasser and the victim (with minimal burden to the victim), providing anti-harassment training to the entire school asking parents and community groups to work with the school to prevent future harassment.
“[A]n approach that focuses only on disciplining the harassers and addressing each incident in isolation often may be insufficient to remedy a hostile environment, particularly where the harassment is pervasive,” Byars wrote.
Most significantly, the U.S. attorney’s memorandum agreed that administrators routinely downplayed incidents of harassment or failed to recognize them as anti-Semitic.
In one example, an assistant principal argued that when a student drew a chasidic Jew on his stomach and another student threw coins at its mouth it was not anti-Semitic because it wasn’t clear that the picture was of a Jew.
In another, administrators argued that when students tried to shove a quarter down O.C.’s throat it wasn’t anti-Semitic because no anti-Semitic remarks were made during the attack.
In a final example, the school superintendent said that students who chant “white power” and “pro-Hitler statements” on the school bus are “just being … meathead[s].”
Bharara’s office called the district’s failure to ever discuss the anti-Semitism with principals or the board, or report or keep records of the incidents “clearly unreasonable.”
The jury might also view these failures as “indicative of a desire by the district not to officially report bias incidents or allegations,” they add.
Attorneys for the defendants declined to comment on the plaintiff’s recent motion or the federal memorandum supporting it.
The plaintiff’s attorney, Ilann Maazel, calls Bharara’s decision to weigh in on the case “unusual and significant.”
“It reflects how egregious the civil rights violations were,” he said.
The plaintiffs are asking for “significant reform” in the district and financial restitution for the plaintiffs, the amount of which would be determined by a jury.
But a trial — if it happens — is still months away.
The defendants’ response to Maazel’s memorandum is due the third week of February. After that the judge will decide whether or not the case goes to trial.
But Maazel says he has no doubt it will, even if the DA hadn’t intervened.
“We have thousands of pages of testimony, dozens of documents, photos taken by school secretary of anti-Semitic graffiti,” he said. “I think in the end what will affect this case is the overwhelming evidence of anti-Semitic bullying and the complete failure of the school to stop it.”
See the full briefs here: Pine Bush Central School District’s Motion to Dismiss, the School District’s Statement of Facts Not Under Dispute, the Plaintiff’s Memorandum in Response and U.S. Attorney Preet Bharara’s Brief in Support of the Plaintiffs