Ineffective Action against Student Harassment and Bullying Leads to $1 Million Dollar Award against School District
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:
- 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.
- The harassment directed at Anthony grew increasingly severe.
- The disciplinary action had little effect, if any, on the taunting and other hallway harassment,
- The District knew that the harassment predominantly targeted Anthony’s race and color.
- 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.
