Court Upholds Verdict Against District in Student-on-Student Harassment Case

This month, a New York federal appeals court in Zeno vs. Pine Plains Central School District upheld a jury’s $1.25 million verdict against the school district. In affirming the jury’s verdict, the appeals court held that the school district was “deliberately indifferent” toward a biracial student who was harassed by his fellow students for three and one-half years before he left high school. The circuit court rejected the school district’s argument that it promptly and appropriately responded to each reported incident of harassment, among other arguments presented. The court’s decision is significant to administrators across the state who are now charged to promptly investigate and take action on all complaints of discrimination, harassment, and bullying involving students under the Dignity For All Students Act, which became effective July 1, 2012.

The trial evidence showed that the student was taunted, harassed, menaced, and physically assaulted by many fellow high school students. In addition, the student’s peers made frequent references to his skin tone, calling him a “nigger” nearly every day. They also referred to him as “homey” and “gangster” while making references to his “hood” and “fake rapper bling bling.” He received explicit threats as well as implied threats such as references to lynching.

As a result of this discriminatory harassment, the court found that the student was deprived of educational benefits including a supportive, scholastic environment free of racism and harassment. Also, the student accepted an IEP diploma rather than seek further studies at the high school he attended. The IEP diploma was less likely to be accepted by employers or four-year colleges. Thus, the harassment effectively deprived the student a regents diploma, a “benefit” offered by the district.

In considering the critical element of the school district’s deliberate indifference, the court carefully considered the school district’s actions in light of the known circumstances and gave deference to the decisions of school administrators – the court refrained from second-guessing disciplinary actions made by school administrators. Still, in this case, the court held that the prompt disciplinary action against the student’s identifiable harassers did not evolve as the “known circumstances” changed. In fact, the court mentioned circumstances that had occurred which should have informed the school district that its continued response was inadequate and not reasonably calculated to end the harassment. First, the district knew that disciplining the student’s harassers – suspensions, or otherwise – did not deter others from engaging the student in serious and offensive racial conduct. Second, the harassment directed at the student grew increasingly more severe, which resulted in physical attacks, threats on his life, and two orders of protection being issued against other students in the district. Third, the disciplinary action taken had little effect if any on the taunting and other hallway harassment that persisted until the student left the school.

The court went on to observe that the district dragged its feet before implementing any non-disciplinary remedial action, a delay of more than a year, which it found was unreasonable. After the student’s first semester, the court declared that the district should have done more, and its failure to do more “effectively caused” further harassment.

The court also described the district’s additional remedial actions as little more than half-hearted measures. The court specifically cited the fact that while the district coordinated mediation, it did not inform the student’s mother where and when that would be held. Also, the court found that additional programs offered by the district either did not focus on racial bias or prejudice and/or did not make attendance compulsory. The court further noted that the district’s first racial specific training did not occur until nearly twenty-one months after the harassment of the student began.

The court moreover was disturbed that the school district rejected free shadowing and racial sensitivity training offered by the county human rights commission and the local NAACP chapter. Given that these free interventions were offered only nine months after the student was first harassed and dealt specifically with the cultural bias at the high school, the court held that the jury reasonably concluded that the district’s deliberate indifferent responses effectively caused the student’s continued harassment.

Finally, the district’s deliberate indifference became self-evident when it ignored many signals that greater, more direct action was needed. Particularly, the court observed that the district’s Title IX officer knew that the student was being harassed, but elected not to investigate, which the court further opined might have prompted an early effective response. Although the reported incidents “decreased significantly” after 13 months, the student still endured numerous, serious and sometimes life-threatening incidents of harassment. The court also mentioned the fact that the district knew that the student was called “nigger” and other racial slurs during his entire three and one-half years at the school. Such known conduct required that the district take additional action to address the problem.

The Dignity for All Students Act (enacted July 1, 2012) requires prompt investigation and reporting. Given the expansion of bullying in July 2012 to include cyberbullying, administrators are now responsible for student conduct that occurs beyond the school yard. The Zeno vs. Pine Plains Central School District case serves as a reminder that school districts and their administrators are legally obligated to take swift action to investigate discrimination, harassment, and/or bullying in school, and moreover, must also periodically determine whether the actions taken are, in fact, halting such misconduct from occurring again.