Liability For Tolerating a Culture of Racial Discrimination

10-3604-cv. United States Court of Appeals for the Second Circuit. 702 F.3d 655; 2012 U.S. App. LEXIS 24833

By Jennifer A. Sughrue and Kenneth E. Lane Southeastern Louisiana University,, Hammond, LA

Appellant school district appealed the orders of the United States District Court for the Southern District of New York that denied its motion to overturn a jury verdict awarding appellee student $1.25 million and that granted remittitur of the jury's award to $1 million. The award was in response to a suit in which a jury determined the school district was deliberately indifferent to the pervasive harassment the student suffered in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000d et seq.

The Second Circuit Court of Appeals refused to overturn a federal district court ruling that upheld a jury verdict confirming an allegation that Pine Plains Central School District was in violation of Title VI of the Civil Rights Act of 1964 when it failed to take affirmative and effective action to stop the pervasive and continuous harassment that Anthony Zeno endured during his three-and-a-half years at Stissing Mountain High School (SMHS). A part of the decision rested on the fact that Anthony accepted an IEP diploma rather than endure more time at the school to earn a standard high school diploma. This was viewed as diminishing Anthony's ability to earn post-secondary degrees, his ability to earn a living, and the long-term impact on his life.


Anthony Zeno, a dark-skinned biracial (white and Latino) 16-year-old, transferred from Long Island to Pine Plains, NY, in January 2005, as a freshman. The high school in which he enrolled was a racially homogenous high school in which less than 5% of the student population were minority students.

Within a few weeks of Anthony's enrollment, students began to harass Anthony with explicit and degrading racial slurs and with violent threats. There were incidents in which a student lunged toward Anthony, threatening to "kick his black ass." Most often, the harassment was name-calling and threats, but one student yanked Anthony's necklace off his neck, breaking it, and apologizing by saying "Whoops, didn't mean to break your piece of fake rapper bling bling." Id., at 659.

This level of harassment continued through the school year with increasing frequency. Although some of the more aggressive students were disciplined with a warning or a suspension, no other action was taken in response to the harassment. From the very first instance, both Anthony and his mother reported the harassment to the school and to the district. Mrs. Zeno met with the high school principal, who in turn told her that "this is a small town and you don't want to start burning your bridges." Id. This did not deter Anthony and Mrs. Zeno, who continued to report the incidents. Mrs. Zeno wrote the district superintendent and the school board about the "verbal attacks and physical abuse" to which both Anthony and his sister, who was also a student in the school district, were subjected. The superintendent did not offer to meet with Mrs. Zeno and did not inform the principal of the letter.

Over the next three years, the harassment continued and, in fact, escalated in seriousness. Anthony was punched, his locker was tampered with so that the door fell on him when he opened it, and graffiti was strewn across the walls of the bathroom stating that "Zeno is dead" and "Zeno will die." There were threats to rape his sister. Police were called when the physical violence was excessive. Twice, Anthony sought orders of protection, so the school district finally moved one student to another school.

Teachers also came forward with concerns for Anthony. Principal Howe responded by asking them to keep an eye on Anthony. Mrs. Zeno continued to write the superintendent, who still did not call or meet with her, but responded in writing.

Both a representative of Dutchess County's Human Rights Commission and Anthony's lawyer contacted the district about the racial harassment. Anthony's asked the superintendent to provide an adult shadow for Anthony while he was at school and to provide racial sensitivity programs that would communicate to the school community that the district had a "zero tolerance [for] racism and bias." In fact, the Dutchess County chapter of the NAACP offered to provide the programs for the school district at no cost. Both the requests and offers were refused.

At the end of Anthony's sophomore year, the district's director of special education prepared an IEP for Anthony as a result of his academic difficulties and his struggles for acceptance in the school. At the IEP meeting, Mrs. Zeno again raised the question of the harassment. The special education director was also the district's Title IX compliance officer and responsible for investigating Title IX and Title VI complaints. Although she was well aware of the multiple incidents of racial harassment, she never followed up or responded to any of the complaints.

The district had a team of administrators, of which the director of special education was one, who met regularly to discuss important issues. Even in light of the reports of increasing violence and degrading harassment, including references to lynching, the team never discussed Anthony or the racial harassment.

One measure that the district took was to arrange for a meeting between Mrs. Zeno and the students who harassed Anthony and their parents. The district, however, did not notify Mrs. Zeno of the date or time of the meeting, so she missed it. Importantly, the mediator the district hired to conduct the meeting was not trained in racial bias or diversity.

In another weak attempt to address the problem, the district implemented a one-day program for faculty and students called "Altering the Culture of Cruelty: A Legally Based Bullying and Harassment Prevention Program." Although it was supposed to have been a customized program for the district, it focused primarily on bullying and sexual harassment, with little attention paid to racial discrimination. There were a few other attempts at instituting some form of sensitivity training, but it was well into Anthony's senior year before racial bias was even addressed.

In his senior year, Anthony had the choice of staying beyond his senior year and trying to earn a standard high school diploma or to leave at the end of the year with an IEP diploma. The IEP diploma would allow Anthony to go to certain community colleges, but it did not offer passage to other kinds of post-secondary opportunities, like the military, trade school, or four-year colleges and universities. Mrs. Zeno was concerned about the limitations of the IEP diploma, but she was well aware of the abuse that Anthony would face if he were to remain at the high school two more years. Consequently, Anthony and his mother opted to let him graduate with the IEP diploma.

Court Decision

Anthony initiated his Civil Rights suit the summer following his graduation. The federal district court denied the school district's motion for summary judgment. After a jury trial, which awarded Anthony $1.25 million in damages for violating his civil rights under Title VI, the school district submitted a motion for a new trial, limiting the focus to the jury award. The court granted the district's motion, if Anthony agreed to accept a reduced award of $1 million, which he did. The district then appealed to the federal circuit court, arguing that (1) the lower court erred when it did not grant the district's motion to dismiss the case as a matter of law and (2) the award was still excessive. The court of appeals found that the lower court did not err and that the award was appropriate.

Racial Discrimination Under Title VI of the Civil Rights Act of 1964

Title VI bars recipients of federal funds from intentionally discriminating on the basis of race, color, or national origin and provides a private right of action against government agencies that are in violation of the law. Public schools are subject to this law inasmuch as they receive federal funding for educational programming.

Supreme Court case law indicates that under certain circumstances, educational institutions can be held liable for actions by third parties if the institutions are deliberately indifferent to teacher or peer harassment of a student (see e.g., Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629, 643, 119 S. Ct. 1661 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91, 118 S. Ct. 1989 (1998)).While this standard was articulated in a Title IX case, its framework has been applied to Title VI cases.

The "deliberately indifferent" standard proffered in Davis is a four-prong test that bestows district liability only when the plaintiff establishes: (1) the district has substantial control over the third party, (2) there is evidence of severe and discriminatory harassment, (3) the district had actual knowledge of the harassment, and (4) the district was deliberately indifferent to the harassment.

1. The first prong suggests that the district will be liable only in instances in which it has substantial control over the harassers and the context in which the harassment occurs, and has the authority to take remedial action. The harassment has to occur during school hours and on school grounds.Certainly, the multiple incidents of harassment occurred at school, during school hours. The disparaging shouts were heard in the hallways, comments were made in class, and the school even had to call the police in when the physical violence got to be too much. The school demonstrated it had control over the harassers and the environment when it exercised some disciplinary authority. It sometimes reprimanded students, suspended a few students, and even moved one student to another school.

2. The second prong requires that the harassment was "severe, pervasive, and objectively offensive" and had a discriminatory effect. Davis, 526 U.S. at 650-51. This not only includes having the effect of denying the harassed student the benefits of education, but also restricting "an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit" under the school system. 34 C.F.R. § 100.3(b)(1)(iv). This means that a student should be able to participate in an educational environment free of racial hostility.Both the district court and the circuit court found that a jury could have reasonably concluded that the harassment to which Anthony was subjected was well beyond "simple acts of teasing and name-calling among school children." Davis, 526 U.S. at 652. Likewise, there was much more than degrading name-calling. There was ample evidence of physical abuse, as well. Anthony even sought protective orders from the students who were physically attacking him.

3. Next, the school district must have actual knowledge of the harassment. Constructive knowledge is insufficient to liability.There was substantial evidence that the school district had actual knowledge of the harassment. Not only did Anthony and his mother report the incidents directly to the principal, the superintendent, and the school board, teachers and other staff members reported their concerns, as well. There were at least 30-50 documented reports of the harassment to school officials by Mrs. Zeno alone. Likewise, community organizations, such as the county chapter of the NAACP, contacted the district with concerns and offers of assistance.

4. Lastly, a finding of deliberate indifference relies on the district's actions or inactions. "A school district's actions are only deliberately indifferent if they were 'clearly unreasonable in light of the known circumstances.'" Davis, 526 U.S. at 648. This is considered in light of deference given to school officials and their disciplinary decisions.The school district 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." Zeno, 702 F.3d at 664. The district believed that it took reasonable and immediate steps to discipline the students who harassed Anthony. It also argued that there were only two repeat offenders and that the number of reported incidents declined during the spring semester of Anthony's sophomore year.

The court evaluated the district's responses "in light of the known circumstances." This included the caveat that as "known circumstances change, the sufficiency of the response may also have to evolve." Id. at 668. It asserted five circumstances that should have educated the district that its responses were insufficient. First, the suspensions and other disciplinary actions had not deterrent impact on other students who took up harassing Anthony. Second, the harassment became increasingly severe, including threats on his life and physical abuse. Third, the disciplinary actions had little or no effect on the racial taunting in the hallways, which continued until he left SMHS three-and-a-half years later. Fourth, the harassment focused on Anthony's race and color. Fifth, outside organizations offered assistance with a free shadow for Anthony and with programs that specifically addressed racial discrimination, both of which the district refused.

The second part of the district's appeal alleged that the jury award was excessive. The district averred that (1) Anthony did not provide sufficient evidence of racial discrimination to merit $1 million award, (2) that the court should consult case law on employment discrimination for guidance on awards because Anthony "established only 'garden variety' damages" (Id. at 672), and (3) the compensatory damages Anthony received were in excessive of other damage awards in student-to-student harassment cases.

The court opined that Anthony, his mother, and others amply testified to his severe "frustration, loneliness and other emotional anguish" over the years he spent at SMHS. Id. As importantly, Anthony "suffered 'substantially adverse educational consequences' as a result of the District's deliberate indifference." Id. He chose to leave school with an IEP diploma rather than stay and face continued harassment in order to earn a standard high school diploma.

The court also disputed the district's contention that Anthony's suffering was of "garden variety" found in employment case law. Anthony was a teenager who was subjected to "three-and-a-half years of racist, demeaning, threatening, and violent conduct." Id. This continual humiliation at his age was going to have a negative and long-term impact on his life.

Lastly, the court viewed the award as reasonable, given the awards in previous cases and "given the severity, duration, and egregiousness of Anthony's unchecked harassment." Id. at 673.


This ruling instructs school districts on two points. First, "responses that are not reasonably calculated to end harassment are inadequate." Id. at 669. Second, prolonged and flagrant student-on-student harassment that ultimately deprives a student from educational benefit can be a costly error in judgment.

While the school district took reasonable steps to discipline those who were the primary harassers, it did little when those steps provided no relief to Anthony. It did not adequately or immediately implement non-disciplinary remedial action that would have sent a message to the student body and racial discrimination in any form would not be tolerated.

School districts should note that the "cost" of the deliberate indifference is compounded by the duration and severity of the harassment and the degree to which a student is deprived of educational benefit. The court noted that Anthony endured years of unrelenting and intolerable racial discrimination and that his opportunities for post-secondary education and employment were stunted by his decision to leave school with an IEP diploma rather than withstand further humiliation at SMHS.