Teachers Sued for Hitting Students are Entitled to Defense at Public Expense

Wednesday, July 3, 2013

New York’s highest court recently ruled, in Sagal‐Cotler v. Board of Education, 20 N.Y.3d 671 (2013), that two teachers of the New York City Department of Education who were sued for using corporal punishment were entitled to a defense provided by the City, even though the employees’ conduct otherwise violated a rule of the Board of Regents that prohibits corporal punishment. Education Law § 3028 requires a board of education to provide an attorney for, and pay attorney’s fees and expenses incurred in defense of, an employee in any civil or criminal action arising out of disciplinary action taken against any pupil of the district “while in the discharge of his duties within the scope of his employment.” The Court rejected the City’s argument that misconduct of the kind involved here – i.e., slapping a student in the face and hitting another student on the head – could not be said to occur during a proper “discharge” of duties, instead finding that the statutory words “discharge of duties” should not be read to restrict the right to a defense to cases where an employee acted in the proper and lawful discharge of his/her duties.

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