District must defend two paraprofessionals sued for use of corporal punishment

On Board Online • May 13, 2013

By Pilar Sokol
Deputy General Counsel

A school paraprofessional admits that she slapped a student in the face because he refused three times to accompany her to the cafeteria. Another does not challenge a finding that she hit on the head a student who did not do his work properly.

Under such circumstances, would a school district have to defend the resulting lawsuits filed against both employees?  The answer is yes, according to the New York Court of Appeals in Matter of Sagal-Cotler v. Bd. of Educ. of the City School Dist. of the City of New York. 

The case arose in New York City, where  provisions of the state Education Law and General Municipal Law applicable to New York City schools seemed to preclude such an obligation. But those provisions do not affect a school employee’s rights under other provisions of state law to have legal defense to be provided by their employer, if that would be consistent with  other provisions of state law. The Court of Appeals found separate provisions of the state Education Law gave the paraprofessionals the right to a defense. 

Because those provisions of the Education Law apply to school districts throughout the state, and because the Court of Appeals is the state’s highest court,  the  decision  is relevant to all school districts in the state.

The statute cited by the Court of Appeals requires that school districts provide an attorney and pay attorney’s fees and expenses related to the defense of employees in any civil or criminal action or proceeding involving disciplinary action taken against a student “while in the discharge of [their] duties within the scope of [their] employment…”  The issue in Matter of Sagal-Cotler involved whether the paraprofessionals were acting within the scope of their employment when they engaged in corporal punishment. 

According to the school district, the answer was no. It argued that employees who act in violation of applicable regulations, such as a prohibition against corporal punishment, cannot be said to act in the discharge of their duties for purposes of obtaining a defense.  The Court of Appeals disagreed, refusing to interpret the right to a defense as applying only to employees who discharge their duties properly and lawfully.

In its decision, the Court of Appeals noted that a district’s duty to defend its employees applies even in criminal cases involving “highly questionable conduct.”  If the Legislature wishes to excuse such a duty in cases where prohibited corporal punishment is at issue, it must do so explicitly.