Second Circuit Upholds $1 Million Jury Verdict Against New York District for Student-on-Student Racial Harassment

Monday, December 3, 2012

A three-judge panel of the U.S. Court of Appeals for the Second Circuit has ruled that a New York state school district is liable under Title VI for student-on-student harassment based on race and color, upholding a $1 million reduced jury verdict. The panel concluded that although the school district had disciplined the identified students for each reported incident of harassment, its responses to the ongoing harassment of the student were deliberately indifferent because the district’s non-disciplinary responses were unreasonably delayed and “little more than half-hearted measures.”

In January 2005, Anthony Zeno, who is bi-racial (white/Latino) transferred as a ninth grader to Stissing Mountain High School (SMHS), in the Pine Plains Central School District (PPCSD), where minorities make up less than 5% of SMHS’ student population. For the next three and a half years, Zeno was subjected to ongoing harassment based on his race and color by a number of SMHS students. The harassment took the form of both verbal abuse and physical attacks. He was threatened with assault and called the “n-word,” along with other racial comments.

After the first incident of harassment in February 2005, Zeno’s mother spoke to SMHS Principal John Francis Howe, who told her that “this is a small town and you don’t want to start burning your bridges.” The harassment and numerous racial comments continued throughout that school year. Zeno repeatedly reported the incidents to school officials. His mother sent a letter to PPCSD Superintendent Dr. Linda Kaumeyer and the school board expressing concern about the continued verbal racial attacks and physical abuse of her son (and his younger sister) by students at SMHS. Kaumeyer neither offered to meet with Zeno’s mother nor informed Principal Howe of the letter. Although the students involved in the incidents were disciplined, either being given a warning or suspended, PPCSD did not implement any other remedial measures in response to the harassment.

During the 2005-2006 school year, Zeno’s tenth grade year, the harassment continued. According to the panel’s recitation of the facts, “In addition to the pervasive hallway harassment reported by [Zeno], specific incidents revealed escalating racial tensions at SMHS.” Zeno was again called the “n-word” on a number occasions, along with other racial slurs and physical attacks so violent that school officials called the police. A faculty member also reported frequent racial comments in one of Zeno’s classes. PPCSD disciplined the students involved, moved one of the students to another school. However, Zeno obtained Orders of Protection twice. In September 2005, Zeno’s mother again wrote a letter to Kaumeyer, who neither called or met with her, but did respond in writing. Principal Howe also responded by asking teachers and staff members to keep an eye on Zeno and “reach out to him.” Zeno continued to repeatedly report the additional incidents of harassment to school officials that year. Around October 2005, Zeno’s attorney requested SMHS to provide Zeno with a shadow, who would accompany him at school, and to implement racial sensitivity programs to underscore PPCSD’s zero tolerance of racism and bias. In November 2005, a member of the Dutchess County Human Rights Commission and the NAACP met with Kaumeyer and Howe, also asking for the shadow and the sensitivity programs, and even offered to provide those options at no cost. However, PPCSD declined to take up either request.

At the end of Zeno’s tenth grade year, PPCSD prepared an individualized education program (IEP) for Zeno to address his struggle “with acceptance in the school environment.” After the IEP was finalized, school officials discussed it with Zeno’s mother, who raised additional concerns about the bias her son continued to face at school.

Although PPCSD’s Title IX compliance officer, Maryanne Stoorvogel, who is also the Special Education Director and the Title VI compliance officer, was aware of the numerous incidents of harassment of Zeno, she never investigated them and did not follow up or respond to these complaints. Stoorvogel and other administrators, who met regularly, never discussed racial harassment, generally, or Zeno, specifically. PPCSD also failed to notify Zeno’s mother of the date and time of a planned February 2006 mediation between her, her son’s antagonists, and their parents. Nor was the prospective mediator trained in bias awareness or diversity. In addition, separate one-day school-wide training programs on bullying and sexual harassment, including faculty, staff, students, and parents, treated race and discrimination tangentially at best.

The harassment continued into the 2006-2007 school year, Zeno’s eleventh grade year. However, he reported fewer incidents because of his frustration that nothing was being resolved. PPCSD hired a diversity awareness expert to train faculty and staff on the importance of acknowledging racial diversity and recognizing racial stereotypes, and to train students on diversity issues. However, no training sessions were held during that school year.

During the 2007-2008 school year,  Zeno’s twelfth grade year, he again reported fewer incidents of harassment. The incidents that did occur, however, were of a serious nature, such as a fight at a football game. PPCSD also began instituting a number of programs promoting racial diversity and sensitivity during this school year, but students could opt out.

However, Zeno decided that rather than endure further harassment while continuing to attend school in PPCSD after twelfth grade to try to graduate with a New York state Regents diploma, he would opt for an IEP diploma. Students with IEP diplomas can attend certain community colleges, but employers, the military, four-year colleges, apprenticeship programs, and business or trade schools generally do not accept them.

After graduation, Zeno filed suit in federal district court against PPCSD alleging discrimination in violation of Title VI.

The case went to trial in early March 2010. After Zeno rested his case, PPCSD moved for judgment as a matter of law, which was denied. Shortly thereafter, the jury returned a verdict in favor Zeno on his Title VI civil rights claim and awarded him $1.25 million in damages. In April 2010, PPCSD renewed its motion for judgment as a matter of law. PPCSD also moved for a new trial, a new trial on the issue of damages, or a remittur of the jury award.

In August 2010, the district court granted PPCSD’s motion for a new trial, subject to Zeno accepting a reduced award of $1 million. Zeno agreed to the reduced award, and the district court entered judgment in the sum of $1 million. PPCSD then filed its notice of appeal, raising two issues: (1) the district court erred in denying PPCSD’s motion for judgment as matter of law; and, in the alternative, (2) the damages award, even as reduced, is still excessive.

Ruling/Rationale: The Second Circuit panel affirmed the district court’s denial of PPCSD’s motion for judgment as a matter of law and the $1 million reduced damages award. Addressing the Title VI student-on-student harassment claim, PPCSD restated its arguments that, as a matter of law, it was not deliberately indifferent to the peer harassment of Zeno: (1) it reasonably responded to each reported incident; (2) it was under no obligation to implement the reforms requested by Zeno’s lawyer; and (3) it never knew its responses were inadequate or ineffective. The panel disagreed with PPCSD’s arguments.

The panel pointed out that the deliberate indifference standard as outlined in Davis is a narrow one, requiring a plaintiff to establish: (1) substantial control of the harasser, (2) severe and discriminatory harassment, (3) actual knowledge of the harassment, and (4) deliberate indifference in responding to the harassment. The panel stressed that a school district will be held liable for third-party conduct only if the district “exercises substantial control over both the harasser and the context in which the known harassment occurs.”

Based on a review of the evidence produced at trial, the panel concluded that the jury had reasonably found that PPCSD’s remedial response was inadequate and deliberately indifferent in three respects. First, while PPCSD acted promptly to discipline the individual harassers, “it dragged its feet before implementing any non-disciplinary remedial action – a delay of a year or more.” The panel concluded that “[a]t some point after Anthony’s first semester, the District should have done more, and its failure to do more ‘effectively caused’ further harassment.”

Second, the panel stated: “[T]he jury could have reasonably found that the District’s additional remedial actions were little more than half-hearted measures.” It noted that the additional programs provided by PPCSD either failed to focus on racial bias or prejudice, or made attendance optional. The panel also noted that these programs were “selected in lieu of the free shadow or racial sensitivity training offered by the Dutchess County HRC and N.A.A.C.P.”

While acknowledging that the actual elimination of harassment is not required in order to make a finding of adequate responses, the panel concluded that PPCSD’s responses “could not have plausibly changed the culture of bias at SMHS or stopped the harassment directed at [Zeno].” The panel found that the record supports the jury’s finding that PPCSD’s deliberately indifferent responses effectively caused Zeno’s continued harassment. The panel, lastly, concluded that despite PPCSD’s argument that “it did not know its responses were inadequate or ineffective, a jury reasonably could have found that the District ignored the many signals that greater, more directed action was needed.”

As to the district court’s reduced award of $1 million to Zeno, the panel held that “the district court did not abuse its discretion in determining that the record could support an award to [Zeno] of $1 million.”

View the brief here:

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