Teen Can Amend Claims Over Sex With Teacher

(CN) - A boy in special education who was sexually assaulted by his student teacher in New Jersey can amend claims against the school board, a federal judge ruled.

Lindsey Massaro is serving three years in prison after pleading guilty to sexual assault.

Her crime occurred while studying education at Centenary College in Hackettstown, N.J., and working at the Frankford Township Elementary School in January 2009.

E.K. had been an eighth grader in a special education class Massaro taught that semester under supervision.

The boy said Massaro had another student give him her phone number, and that she later kissed him and performed oral sex on him in the school parking lot.

One time when the two were having sex in Massaro's bedroom, another male elementary student waited in the teacher's adjacent bathroom, according to the complaint.

E.K.'s mother allegedly voiced concerns to Principal Monica Orr in February, but no school official ever followed up. Though the school did move Massaro to a fifth grade class, her sexual relationship with E.K. continued, according to the complaint.

After Massaro's arrest, Orr allegedly E.K.'s mother that he "could not attend school because it was causing disruption."

The boy allegedly received no scholastic assistance for the rest of the year.

E.K. sued Massaro, the Frankford Board of Education and several officials for violations of the Fourth, Fifth, and 14th Amendments; the New Jersey Law Against Discrimination; and a state law requiring education boards to establish policies to stop child abuse. Massaro also faces a claim for emotional distress.

In a recent motion to amend his complaint, however, E.K. sough to add as defendants Frankford teacher Elizabeth Abruzzo-Narducci and Centenary College.

In a June 2, 2009, email draft, Abruzzo-Narducci allegedly wrote about a "thrilling" sexual abuse seminar.

According to the proposed amended complaint, the teacher said she "experienced some Catholic guilt in realizing just how many 'warning signs' Lindsey gave off. Oh well ... now, at least I know for the future." (Ellipses in original.)

U.S. District Judge Dickinson Debevoise refused on Oct. 7, however, to add new individual defendants.

Noting that the seminar Abruzzo attended took place after Massaro's arrest, Debevoise said the "allegation does not plausibly suggest that Abruzzo had actual contemporaneous knowledge that Massaro was sexually assaulting E.K and cannot serve to sustain a claim of individual liability under Section 1983."

"The proposed amended complaint clearly shows individual liability on the part of Massaro, who personally sexually assaulted E.K., and Orr, who was informed by E.K.'s mother that her son was in a sexual relationship with Massaro," the unpublished ruling states. "However, it fails to show personal involvement on the part of any other individual defendant. Indeed, there are no allegations whatsoever tending to show any personal direction, actual knowledge, or acquiescence."

Orr is also the only official whom the complaint sufficiently alleges as negligent in failing to train or supervise Massaro or review her mental health records and social media accounts, according to the ruling.

"Plaintiff fails to allege either that (1) Massaro was, in fact, receiving mental health treatment; or (2) Massaro's social media accounts contained anything sexually inappropriate or that would have called into question her fitness to serve as a student-teacher," Debevoise wrote. "Consequently, plaintiff's ninth cause of action is dismissed as to all defendants, except Orr. Because Orr had contemporaneous knowledge of E.K.'s and Massaro's sexual relationship and failed to take steps to remove Massaro from her position at Frankford, plaintiff may pursue a claim against Orr for negligent retention."

Though the court dismissed E.K.'s claims against college officials, his assault, battery, and official misconduct claims against Massaro and state-law discrimination claims survived, as "Massaro would not have sexually assaulted E.K. but for his gender."

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