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Ineffective Action against Student Harassment and Bullying Leads to $1 Million Dollar Award against School District

December 12th, 2012

By Marion Walsh, Esq., Littman Krooks LLP

In a recent decision, Zeno v. Pines Plains Central School District, Docket No. 10–3604–cv. (2d. Cir. 12/5/12), the United States Court of Appeals for the Second Circuit sent a resounding message to New York school districts and affirmed a $1 million dollar jury award to a student who faced bullying and harassment based on race for over three and a half years, in violation of Title VI of the Civil Rights Act of 1964 (“Title VI”). The award amounts to one of the largest damage awards in recent years in this type of case. Reflecting a culture that has recognized the grave harm of student bullying, the Second Circuit panel of three judges condemned school district inaction and found sufficient evidence in the record to support the jury’s finding that the District’s responses to student harassment “amount[ed] to deliberate indifference to discrimination.”

We applaud this decision, as it sets specific parameters on how school district officials should respond to student bullying and harassment and notifies school districts that ineffective action will not be sufficient to avoid liability for harm caused by student bullying.

The facts clearly support the ruling. Anthony Zeno, an African-American student who also was classified as a student with disability, moved to the Pines Plains School District in January of 2005 and began as a freshman. Harassment and bullying began almost immediately and never relented. A student threatened to rip his face off and used racial epithets when referring to him. In the student’s sophomore year, a student threatened to beat him up. Graffiti with death threats appeared in the school bathroom. Students threatened Zeno lynching by displaying a noose or threatening to put a rope around a nearby tree. Students tampered with Anthony’s locker so that it fell on his head and also filled the locker with garbage. In junior year, a student threatened him and repeatedly threatened his younger sister. When Anthony threw a punch, the district punished Anthony, but not the instigator. A student commented that Anthony would fit a role in the school play “if it was like a black gangster.” By senior year, the incidents grew more serious. For example, at an SMHS football game in September 2007, students instigated a fight and a student “jumped” Anthony’s friend, choking him until he lost consciousness. Students continued to call Anthony racial epithets in the hallways “all the time,” and he reported these comments to the principal. He encountered continued racial harassment on the bus to his off-campus BOCES program.

The student’s parent repeatedly informed school officials of the continuing and escalating harassment, each year. In Anthony’s freshman year, the parent wrote a letter to the Superintendent and school board notifying them of the harassment. The District never offered a meeting. At Anthony’s CSE meeting in June 2006, Mrs. Zeno said Anthony experienced school as a “battleground” and that the constant threats, epithets, and racial slurs created an atmosphere that sent a hate message. The parent initiated 30-50 communications on the bullying and harassment to the school district.

In response to these actions, the school district suspended certain students for approximately five days each, in response to various incidents. The Director of Special Education who was also the District’s Title IX compliance officer, also charged with investigating Title VI violations, never investigated the harassment although she had knowledge of them and received complaints. The District also conducted a mediation but did not notify the parent of the time or the date, and the mediator was not trained in diversity or bias awareness. While the school district conducted one day workshops against bullying, they were not targeted toward race and discrimination. Finally, the District hired a diversity consultant in Anthony’s junior year, but he only did preliminary work and never provided training.

The United States Department of Justice and Department of Education , charged with enforcing Title VI, submitted a brief in favor of the student’s position. The District contended that, as a matter of law, it was not deliberately indifferent to student harassment of Anthony. Specifically, it argued that (1) it reasonably responded to each reported incident, (2) it was under no obligation to implement the reforms requested by Anthony’s lawyer, and (3) it never knew that its responses were inadequate or ineffective.

While the court noted that, in some circumstances, prompt disciplinary action against a student’s identifiable harassers may show that a school district was not deliberately indifferent. The Second Circuit identified five circumstances which should have informed the District’s continued response to student harassment of Anthony was ineffective:

  1. The District knew that disciplining Anthony’s harassers—through suspensions or otherwise-did not deter others from engaging Anthony in serious and offensive racial conduct.
  2. The harassment directed at Anthony grew increasingly severe.
  3. The disciplinary action had little effect, if any, on the taunting and other hallway harassment,
  4. The District knew that the harassment predominantly targeted Anthony’s race and color.
  5. As early as November 2005, the Dutchess County HRC and N.A.A.C.P. offered the District both a free shadow, to accompany Anthony during the school day, and a free racial sensitivity training series, which the District declined.

The Second Circuit panel upheld the jury finding that the school district was deliberately indifferent to actionable harassment. First, the panel upheld the finding that, based on the record below, the harassment Anthony suffered was “severe, pervasive, and objectively offensive.” The court further upheld the jury findings that the District’s delay in taking additional action here was unreasonable and that the District’s additional remedial actions were little more than half-hearted measures. The Panel noted that “responses that are not reasonably calculated to end harassment are inadequate.” Finally, the panel upheld the award of $1 million dollars. The court rejected the school district’s argument that the damages were “garden variety,” in line with employment discrimination cases. The panel noted that Anthony was a teenager being subjected—at a vulnerable point in his life—to three-and-a-half years of racist, demeaning, threatening, and violent conduct. Furthermore, the conduct occurred at his school, in the presence of friends, classmates, other students, and teachers. The panel upheld the jury finding that the harassment would have a profound and long-term impact on Anthony’s life and his ability to earn a living.

What the Ruling Means for Parents and School Districts

The ruling should offer hope to parents of children facing bullying and harassment. The ruling confirms that parents must not give up and must keep relentlessly reporting and documenting all bullying and harassment in writing. The parent and student in this case kept detailed,and meticulous records for many years.

For school district staff, the ruling sends a clear message that staff must respond to student bullying in an effective way that actually targets and makes at least a reasonably calculated effort to stop the bullying and harassment. The United States Department of Justice noted that, in addition to accepting the offer of the NAACP for a shadow aide and sensitivity training, available and more effective responses reasonably calculated to ending the harassment could have included:

  • reaffirming the school district’s zero-tolerance policy against harassment;
  • redistributing the district’s code of conduct;
  • holding mandatory training for all employees and students;
  • issuing a letter to all parents that racial harassment of any form would not be tolerated; publicizing the means to report alleged harassment;
  • providing contact information for the school’s anti-discrimination officer; and
  • engaging Anthony in school-based counseling.

The Dignity for All Students Act: A New Tool to Keep Student Safe

September 12th, 2012

by Marion M. Walsh, Esq.

Bullying can harm any student, but research shows that students with disabilities are particularly vulnerable to harassment and bullying.  Bullying can cause educational decline, anxiety, physical ailments and missed classes, among other problems. This year, a new tool and mandate exists to prevent and address student bullying and harassment.

Effective as of  July 1, 2012, the Dignity for all Students Act prohibits harassment and bullying based on race, weight, national origin, ethnic group, religion, religious practice, mental or physical disability, sexual orientation, gender identity, and sex, as well as bullying based on other characteristics.  The Act seeks to provide every public school student with a safe and supportive environment free from discrimination, intimidation, taunting, harassment, and bullying on school property, a school bus or at a school function. To implement the law, each school must appoint a Dignity Act Coordinator.    The Dignity Act also requires instruction in civility, citizenship, and character education by expanding the concepts of tolerance, respect for others and dignity to include an awareness and sensitivity in the relations of people based on the above differences. The Dignity Act further requires Boards of Education to include language addressing The Dignity Act in their Codes of Conduct and to amend their policies. New York State has developed excellent tools to help schools implement the law and to help parents understand it.
The Dignity Act requires school districts to adopt proactive, not just reactive, responses to bullying. The mandate of a supportive education environment should change the way school personnel address bullying—not as just a disciplinary measure, but as a school environment issue.  Thus, in addressing bullying, according to New York State Guidance, a school district should, for example, consider: peer support groups; corrective instruction; supportive interventions;  behavioral assessment or evaluation; behavioral management plans; school counseling and parent conferences.  In addition, New York state recommends  school­-wide  environmental remediation such as:

  • supervisory systems  which  empower school staff  with  prevention and  intervention tools to address incidents of bullying and harassment; school and community  surveys  or other strategies  for determining the conditions contributing to the relevant behavior;
  • adoption of research-­based, systemic harassment prevention programs;
  • modification of schedules;
  • adjustment in hallway traffic and other student routes of travel;
  • targeted use of monitors;
  • staff professional development;
  • parent conferences;
  • involvement of parent­-teacher organizations; and
  • peer support groups

The Dignity Act represents an important further step in protecting student rights and the prevention of bullying.   Federal courts  have already recognized the right of students with disabilities to be free from peer harassment and bullying, when a school district is deliberately indifferent and the harassment causes loss of educational opportunity.  In K.M. v. Hyde Park Central School District, 381 F.Supp.2d 343 (S.D.N.Y 2005), the United States District Court for the Southern District  recognized that school districts could face liability for peer harassment based on a student’s disability, in the same way as for peer sexual harassment.   In the K.M. case,  a 13-year-old eighth grade student,  was the victim of repeated instances of being called “stupid,” “idiot,” “retard” and other “disability-related insults” and acts of “physical aggression” and intimidation (all by other students) while in school and on the school bus.  He was physically beaten and his school books were thrown into the garbage in the cafeteria between 5-8 times.   The court held that “a school district’s deliberate indifference to pervasive, severe disability-based harassment that effectively deprived a disabled student of access to the school’s resources and opportunities would be actionable under Section 504 and Title II.”  In addition, the parent in this case filed for a hearing for tuition  reimbursement, based on the denial of a free appropriate public education, and the IDEA claim settled out of court.
Parents must know that they have powerful legal tools at their disposal. However, ideally, before bullying or harassment reaches a crisis point, school districts and parents should work together to prevent bullying and, if it occurs, stop it early.  Parents should expect teachers to closely supervise students and to address any bullying promptly.  Parents also play a crucial role in preventing bullying.  Particularly for students with disabilities who may not be able to speak for themselves about bullying or understand it, parents must be proactive and protective.  If you notice signs of withdrawal and anxiety in your child, ask your child about what is happening in school.  Work with your child’s teacher(s) to get to the root of the problem.

Here are six steps to take to be proactive to learn how to address student bullying:

1. Review your school district’s Code of Conduct to ensure that it incorporates Dignity Act provisions. Also make sure the District has policies to incorporate Dignity Act provisions. Students must receive a plain language summary at the beginning of the school year and receive training at an assembly.

2.  Learn who the school’s Dignity Act Coordinator is. Ask about the above environmental remediations to prevent bullying and address it when it occurs.

3.  If your school district’s Code of Conduct does not address the requirements of the Dignity Act, you should alert the Superintendent and the Board of Education and expect action.

4.  If your child is the victim of bullying or you believe bullying has occurred, do not delay in reporting this to your school district, even if your child denies it or asks you not to.  If you fear your child will be retaliated against, you can ask for additional supervision.   First, report to the Dignity Act Coordinator.  Document your concerns and specific incidents in writing   If the school does not address your concerns, follow up.  Be relentless.

5.  Keep a log and journal and any physical evidence of bullying.

6.  Most importantly, support your child and make sure he or she receives any needed counseling or other support and that you address the problems immediately

For more information regarding bullying, or education, please visit www.specialneedsnewyork.com or www.littmankrooks.com.

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