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News 2009


Dismissal of First Amendment Retaliation Case Alleging “Chilled Speech”


Lewis Silverman obtained dismissal of two of three counts in a Section 1983 civil rights case against a school district, its Superintendent of Schools and the Deputy Superintendent of Schools. The plaintiff’s Complaint alleged that the District violated her First Amendment right to association and further violations of her Fourteenth Amendment rights to substantive due process and privacy. The plaintiff alleged that the District improperly ordered her to submit to a New York State Education Law § 913 psychiatric examination and then publicized the order on the District’s web-site after it received information that she had inappropriately raised her voice at students and discarded student work. The teacher was suspended with pay, and was directed not to communicate with any school district employees while suspended.


On a pre-discovery motion to dismiss, the court held that the District did not violate the plaintiff’s substantive due process rights by ordering her to undergo an examination or posting the order on the web-site using only the employee number and without any other identifying information. All claims against the administrators were dismissed based on the qualified immunity doctrine. The only claim that survived was the plaintiff’s argument that the District violated the First Amendment by directing her not to speak to other staff members because she has a right to association with her union representatives.






Second Circuit Case Alleging “Hostile Educational Environment”


Lewis Silverman successfully argued that the Second Circuit should uphold a summary judgment dismissal of a Title VI case against a public school district and its administrators. The plaintiff alleged that the school district had actual notice of student-to-student racial harassment incidents and was deliberately indifferent to the harassment. The plaintiff claimed that school staff witnessed the harassment, but did nothing about it. The Second Circuit disagreed with the plaintiff’s argument and affirmed the lower court decision. The court held that the school district did not have actual notice of any racial harassment and that the school’s actions did not amount to deliberate indifference, as required under Title VI. D.T. v. Somers Central School District, et al. (2d Circ. 2009

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