A Bronx judge has dismissed a lawsuit accusing the New York City Department of Education of failing to supervise a teacher who sexually assaulted a student who became pregnant, finding the school was not liable for the teacher’s conduct because it took place off campus in the summer.
Acting Supreme Court Justice Mitchell Danziger ruled last Wednesday in Doe v. Department of Education, 350325/10, that the education department is entitled to summary judgment because it had no duty to supervise a student outside school grounds after hours, and because it did not have notice that the teacher had any propensity toward sexual misconduct.
The teacher, Bill Agosto, worked in Discovery High School in the Bronx, where he was a track coach. In 2008, the student began running track. She later testified that she and Agosto “developed feelings for each other.” The following summer, she and Agosto had sex in a motel room multiple times. In September 2009, the student told her mother that she was pregnant.
The student and her mother sued the DOE, alleging that it school was responsible because it failed to supervise Agosto, hired him despite knowing he was predatory and failed to protect the girl from him.
Danziger, however, ruled that the suit rested on a “fundamental misunderstanding” of schools’ responsibility to supervise their students.
Schools, he wrote, are responsible for their students during school hours when students are on school grounds, because they are stepping into the role of students’ parents. He noted that schools’ responsibility may extend beyond that—for example, to supervising students competing in athletic events after school.
“However, schools are not insurers of safety and cannot reasonably be expected to continuously supervise and control all movements and activities of the students in their charge,” he wrote.
In the case of the student and Agosto, the judge said, the sexual assault happened when the school could not be responsible for supervising the student.
Danziger said that the plaintiffs still could have a claim if the school had hired Agosto despite knowing he had a propensity for sexual misconduct. Without evidence of such knowledge, however, there could be no liability, he wrote.
“This of course, makes perfect sense insofar as it is beyond cavil that school personnel cannot reasonably be expected to guard against conduct, the likes of which, they were unaware and, therefore, likely to recur,” the judge wrote.
Danziger said that the school could be liable for Agosto’s conduct while he was acting in his capacity as track coach—for example, while driving the track team to and from competitions.
“Certainly, under such circumstances Agosto’s duty, and thus the DOE’s duty to provide adequate supervision did not cease merely because the students were no longer on school grounds,” he said. “Nevertheless, here, DOE establishes the absence of liability because all the tortious conduct born out by the evidence occurred during [the student's] summer vacation, at which time the DOE owed no duty of care to her, let alone any obligation to adequately supervise her.”
Danziger rejected an affidavit submitted by the student saying that she and Agosto first had sex before the end of the school year in 2009 as “self-serving,” because it contradicted her earlier deposition testimony.
“We believe the court reached the correct legal decision,” said a spokeswoman for the city law department, which represented the DOE.
Assistant Corporation Counsel Joseph Sauer appeared for the city.
The plaintiffs were represented by Walter Benson of The Lynn Law Firm, who could not be reached for comment.