Pine Bush Anti-Semitic Bullying case shows why civil litigation is so important

By Sarah Belton, Cartwright-Baron Attorney

Read the comments to the November 8 New York Times article about Public Justice’s Pine Bush bullying lawsuit and some themes are evident. The anti-Semitism these students faced is unacceptable. People expect that when students attend school they will be in an environment where they are safe and where the focus is on learning. So far, so good. But one troubling theme emerging from these comments is that some people think a lawsuit is the absolute wrong way to address the evils happening in the school district.  The undertone is that civil litigation can’t offer a solution and is inherently bad.

So, why civil litigation?

Well, first, civil litigation is one way in which we – via our laws and our courts – express outrage over injustice.  Is it the only way we express outrage? Certainly not. But, when the conversations with teachers, administrators, and school district officials fail to bring about change – and when students don’t feel safe going to school or start contemplating suicide – a lawsuit is a way to raise attention and acknowledge that something is wrong. A court ruling is a statement that certain actions or behaviors are not acceptable – that they violate the law and that justice requires a different result.

There is also this pervasive idea that civil litigation is all about a big payout for the plaintiff or about putting more money in the pockets of attorneys who are already rich. Lawsuits often do have the noble goal of trying to make a person who has been wronged whole. But money can’t take away the injury. It can’t undo the moments of being called a “dirty Jew” or of being held down while a swastika is drawn on your face. The idea that money fixes all previous wrongs ignores that most plaintiffs would just rather never have been part of a lawsuit in the first place.

Look at the comments from the New York Times article and you see many calling for the school to expel students. Just as bullying is an issue receiving national attention, child advocates, community groups, and others are increasingly drawing awareness to the school-to-prison pipeline. School suspension or expulsion is correlated with many negative outcomes for children later on in life. The answer to any problem at a school is not to remove students. As Emily Bazelon repeatedly acknowledges in her book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovery of the Power of Character and Empathy, removing the aggressors is often not the best answer. Expelling a few students does not change the culture of a school. It does not foster a collaborative community for all students. And it doesn’t help to create a responsible, civic-minded group of future adults.

Civil litigation matters. One important, and often overlooked, part of civil lawsuits is injunctive relief:  requirements of new policies or practices to address the bad behavior, and monitoring to make sure that any change is put in place.  Injunctive relief can transform – especially when the wrongdoer has previously refused to acknowledge any error – and can have a lasting effect. This kind of relief is critical to the families challenging Pine Bush’s way of addressing bullying. They don’t want others to suffer the trauma that they’ve been enduring for years.

Civil lawsuits can bring about systemic change; and systemic change leads to social change. Behind every legal case are the lives of real people who were willing to vocalize their injustice and bring it into the light. We all owe a large debt to changes that came about because of individuals who brought civil suits.  Brown v. Board of Education – perhaps the most famous legal case in our collective memory – was a civil suit brought by a group of individuals.  And, certainly, today we hold Brown out as an integral moment in the Civil Rights movement.

Now, I don’t mean to suggest that every civil case is going be Brown and make a major legal pronouncement of a constitutional right. But many civil lawsuits – those that get press and those that never make it into the general public lexicon – do help to bring about change, even if it’s just a nudge.  And it’s those incremental movements that combine together to bring us to a better place.