Cianciotto ex rel. D.S. v. N.Y.C. Dep't of Educ.

Decision Date22 April 2022
Docket Number21 Civ. 5596 (PAE)
Citation600 F.Supp.3d 434
Parties Jason CIANCIOTTO, ON BEHALF OF his minor son D.S., Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION; Board of Education of the City of New York; Bridget Edwards ; Erikka Sharpe; Peter Block; Erin Lalor; Alexander Angueira; and Cynthia Kerns, Defendants.
CourtU.S. District Court — Southern District of New York

Alanna Gayle Kaufman, New York, NY, David A. Lebowitz, Kaufman Lieb Lebowitz & Frick LLP, New York, NY, for Plaintiff.

Copatrick Thomas, New York City Law Department, New York, NY, for Defendants.


PAUL A. ENGELMAYER, District Judge:

Plaintiff Jason Cianciotto, on behalf of his minor son, D.S., who is disabled, brings this action against the New York City Department of Education ("DOE"), the Board of Education of the City of New York ("BOE"), and numerous teachers and administrators ("individual defendants") (collectively, "defendants") at D.S.’s former middle school, Intermediate School 126Q ("I.S. 126Q"). Against DOE and BOE alone, Cianciotto brings claims under Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq. , and Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794. Against the individual defendants alone, Cianciotto brings claims under New York Civil Rights Law §§ 40-c and 40-d. Against all defendants, Cianciotto brings claims under the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq. , the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code §§ 8-101 et seq. , and of common law negligence. The claims arise out of an incessant barrage of bullying D.S. allegedly faced from other students at I.S. 126Q on account of his sexuality and gender expression, and the school's alleged failure to meaningfully address it. As alleged, that bullying resulted in, inter alia , the denial to D.S. of a free and appropriate public education. Pending before the Court is defendantsmotion to dismiss. For the reasons below, the Court denies the motion in full.

I. Background
A. Factual Background1
1. The Parties

D.S. is a 15-year-old male student who attended I.S. 126Q during the 20172018 and 20182019 school years, during which periods D.S. was a sixth and seventh grader, respectively. AC ¶ 26. D.S. is gay, and his gender expression "does not conform to stereotypes for adolescent boys"he "loves the color pink and has a strong interest in drag and drag queens." Id. ¶¶ 55–56, 62. He also suffers numerous disabilities, which are reviewed below. D.S. is represented here by his father, Jason Cianciotto.

The BOE is a public corporate entity created by state law. It is charged with overseeing the City School District of the City of New York ("School District"). Id. ¶ 27.

The DOE was created by the BOE to act as the governance structure for the District. Id. ¶ 29. Every individual defendant, named below, is a DOE employee. Id.

Bridget Edwards served as Sixth Grade Dean at I.S. 126Q during the 20172018 school year, Id. ¶ 32.

At all relevant times at I.S. 126Q, Erikka Sharpe served as Dean of Students, id. ¶ 33; Peter Bloch served as Seventh Grade Dean, id. ¶ 34; Erin Lalor served as Assistant Principal, id. ¶ 35; Alexander Angueira served as Principal, id. ¶ 36; and Cynthia Kerns served as a Special Education Teacher, id. ¶ 37.

2. D.S.’s Background and Disabilities

D.S. spent his early years in Colorado under the care of his biological parents, each of whom was an alcoholic and suffered from drug addiction. Id. ¶ 40. From a young age, D.S. was the victim of abuse and neglect, traumatized by witnessing domestic violence between those parents. Id. When he was approximately 7 years old, D.S. was removed from his biological parents’ home and placed in the Colorado child protective system. Id. ¶ 41. Over the next four years, D.S. was placed in seven different foster homes. Id. ¶ 42.

At age 10, D.S. was diagnosed with a malignant brain tumor. Id. ¶ 43. D.S.’s then-foster parent abandoned D.S. at the hospital after learning of the tumor. Id. ¶ 44. Although D.S. had surgery to remove the tumor, he continues to need follow-up care to monitor for its potential recurrence and control seizures. Id. ¶ 45. D.S. has been diagnosed with post-traumatic stress disorder, ("PTSD"), generalized anxiety disorder, epilepsy, and various learning disabilities. Id. ¶ 46. As reviewed below, D.S., as a result of his disabilities, at all relevant times has been on an individualized education program ("IEP").

In 2017, when D.S. was approximately 11 years old, he entered the care of Jason Cianciotto and his husband, Courter Simmons. Id. ¶ 48. On May 22, 2018, Cianciotto and Simmons formally adopted D.S. Id. ¶ 49. The family resides in Queens, New York. Id.

3. Bullying D.S. Experienced at I.S. 126Q
a. D.S.’s sixth grade year

In September 2017, Cianciotto and Simmons enrolled D.S. in the sixth grade at I.S. 126Q in Long Island City, Queens, New York.2 Id. ¶ 50. Shortly after he enrolled, D.S. came out to his teachers and classmates as gay, and spoke openly at school about the fact that he was being adopted by two married gay men. Id. ¶¶ 55–56.

Within weeks, D.S. became the target of a campaign of sex- and gender-based bullying from his classmates. The AC alleges that "[m]ultiple times every week, students at I.S. 126Q openly mocked, taunted, and harassed D.S. on the basis of his sexual orientation and gender expression," Id. ¶ 59. Students told D.S. that being gay "made him gross, that his dads were disgusting, and that his family was ‘wrong’ in the eyes of God." Id. ¶ 60. They also called D.S. derogatory names, including "fag," "faggot," and "homo," and referred to him as "the gay kid" and "gay boy." Id. ¶ 61. D.S. was bullied and mocked for behaving "like a girl." Id. ¶ 63. Friends D.S. made were themselves the target of bullying by other students, who would spread rumors that D.S.’s male friends were his boyfriends or had kissed him. Id. ¶ 68. Unsurprisingly, D.S. largely kept to himself due to the bullying and social isolation he faced at school. These feelings manifested, for instance, as fear and discomfort at the prospect of eating with classmates at lunchtime. Id. ¶ 71.3

The AC alleges that school officials were aware of much of the bullying D.S. faced in sixth grade. For example, on or about December 22, 2017, D.S. reported to Dean Edwards an incident in which another student grabbed the hat off D.S.’s head and smacked him, prompting a scuffle that resulted in D.S. crying and running away. Id. ¶ 64. Defendants "failed to respond adequately to keep [D.S.] safe." Id. ¶ 65. In January 2018, during a science class taught by teacher Emily McFadden, another student told D.S.—in McFadden's presence—that his dads were "shit" and a "mistake created by Jesus" because they are gay. Id. ¶ 66. McFadden allegedly failed to report the incident. Id. Also made within earshot of I.S. 126Q teachers—which they failed to report—were comments from students that it was "so sad" that D.S. had two dads and that he "should have a mom." Id. ¶ 67. Much of the alleged bullying D.S. experienced occurred during class time, meaning he spent much of each day with his tormentors. Id. ¶ 69.

Early in the sixth-grade school year, D.S.’s parents met with Dean Edwards to discuss the bullying. Dean Edwards stated that it was "inappropriate for D.S. to talk about his sexual orientation at school," and that "if D.S. did not insist on speaking so openly about his sexual orientation, he would not be subjected to such constant bullying." Id. ¶ 73. The AC alleges, upon information and belief, that the school "took no steps as a result of this meeting to protect D.S. from further bullying." Id. ¶ 74.

The bullying continued. On an unspecified date, one of D.S.’s classmates (who was a primary perpetrator of the bullying) physically assaulted him, pushing him to the floor. Id. ¶ 76. Just as the student nearly punched D.S., a school official intervened to prevent further escalation. Id. In response, D.S. participated in a "mediation" with the other student—the only remedial action the school took in response to the incident. Id. ¶ 77. The AC alleges that the mediation did not prove effective in stopping the bullying.

On or about March 19, 2018, while D.S. was using stress balls to calm himself during class, another student taunted D.S., telling him to "squish those balls." Id. ¶ 78. A guidance counselor documented the incident in a DOE incident log4 and requested that staff "look into" the incident. Id. On or about June 1, 2018, one of D.S.’s teachers noted in a DOE incident log that a classmate was "bothering" D.S. and another student, and asked that the Dean "speak to" the offending student. Id. ¶ 79. The school did not take further action in response to either incident. Id. ¶¶ 78–79, On "multiple occasions during sixth grade," D.S.’s teachers noted in DOE incident logs that D.S. had made remarks in class about wanting to die. Id. ¶ 80.

b. D.S.’s seventh grade year

D.S. continued to be bullied in his seventh grade year at I.S. 126Q. On or about September 14, 2018, in response to D.S.’s asking another student about their dancing in the cafeteria, the student called D.S. a "faggot" multiple times. Id. ¶ 82. Stephen Linardic, an Assistant Principal at I.S. 126Q, investigated the incident and concluded that D.S. had been subject to bias-based harassment—but the school did not take remedial action. Id. ¶ 83.

On October 18, 2018, D.S. informed Assistant Principal Linardic that a student called him a "faggot ass" earlier that day in a school stairwell. Id. ¶ 84. Erikka Sharpe, then I.S. 126Q's Dean of Students, found—without explanation—the allegation unsubstantiated. Id. ¶ 85. A few days later, on October 22, 2018, one of D.S.’s friends told their science teacher that another student in the class called D.S. a "faggot" and antagonized the friend for his friendship with D.S. Id. ¶ 86. The teacher, Jackson Earlean, reported in a DOE incident log that...

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