Student harassment case fails under "actual notice" test

It's illegal for school districts to condone racial harassment among students. But the legal standards for these cases makes them hard to win. You might think student harassment cases apply the same legal standards as workplace harassment cases. Think again.

The case is D.T. v. Somers Central School District, a summary order decided on October 15. The plaintiff is a black student who endured racial harassment from classmates. The Court of Appeals (Raggi, Livingston and Cogan) affirms summary judgment for the school district. The legal analysis shows how hard it is to win these cases. First, the district must have actual notice of the harassment, unlike in employment discrimination cases, where the employer can lose if it should have known about the harassment. Under Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Supreme Court rejected the "constructive notice" test in Title VI and Title IX cases. This means the parents' evidence in the form of affidavits from a psychologist and another parent about harassment against a different student are not relevant to this case.

Second, the school district loses the case only if its response to the racial (or sexual) harassment was "clearly unreasonable in light of the known circumstances." That's the rule in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). While an employer which unreasonably deals with sexual harassment loses the case, the "clearly unreasonable" test in school harassment cases is a much higher standard, a "deliberate indifference" test. The parents lose this case because "the record indicates that J.L.'s teacher reprimanded the alleged harasser for her actions in class and may have sent one of the two students out in the hall." In addition, there is no evidence that the teacher's response to the harassment caused subsequent harassment against plaintiff elsewhere in the building. Under Gebser and Davis, no deliberate indifference.

The Second Circuit decision does not tell us what happened to the student, but the district court ruling does. Classmates said he was "not black enough" and called him a "nigger." In the "cafeteria incident," "student MC and student L approached JL's lunch table and shook hands with everyone seated at the table, except JL and JL's friend, KF. During this encounter, L hit JL in the back of the head approximately twelve times, MC told JL that he was not being a 'good nigger' and MC grabbed JL's chair, causing JL to fall to the ground."

See how hard it is to win these cases? On this evidence, if J.L. was an employee at the school district and he suffered this kind of harassment, the school's response might well entitle him to victory. Why is it so hard to win student harassment cases? Part of the reason has to do with the fact that the Constitution's Spending Clause applies in deciding these cases, which invokes a different legal test.

When the Supreme Court recognized a cause of action for student-on-student harassment under Title VI, it did so in a close vote. Four Justices did not want these claims to proceed at all. Justice Kennedy in dissent warned of an "avalanche of liability" against schools. He added,

The only certainty flowing from the majority's decision is that scarce resources will be diverted from educating our children and that many school districts, desperate to avoid Title IX peer harassment suits, will adopt whatever federal code of student conduct and discipline the Department of Education sees fit to impose upon them. The Nation's schoolchildren will learn their first lessons about federalism in classrooms where the Federal Government is the ever-present regulator. The Federal Government will have insinuated itself not only into one of the most traditional areas of state concern but also into one of the most sensitive areas of human affairs. This federal control of the discipline of our Nation's schoolchildren is contrary to our traditions and inconsistent with the sensible administration of our schools.

As this was a 5-4 case, this language could have been the majority, and student-on-student lawsuits would have been scuttled from the outset.

Unusual jury verdict form costs plaintiff $12,000 in damages

When the judge gives the case over to the jury, the jury goes into a room with a verdict sheet to guide its deliberations. The verdict sheet contains questions that help the jury answer the questions relevant to the case. A good verdict form makes the process easy, sort of like a checklist. A bad verdict form, well ...

The case is Aczel v. Labonia, decided on October 9. This is a police beating case, and the jury awarded plaintiff about $12,000. But there were problems with the verdict form. The jury decided that the police officer did use excessive force and that plaintiff was entitled to damages. But the jury also found that the officer had qualified immunity from suit, which is a legal doctrine giving the police the benefit of the doubt in hard cases and relieves them of any liability. How can the jury find that the officer has qualified immunity but that he also has to pay the plaintiff $12,000 in damages for excessive force?

The trial court entered judgment for the officer on the basis that qualified immunity means no damages for plaintiff. Over a colorful dissent from Judge Pooler, the Court of Appeals (Leval and Parker) affirms the trial court. The bad verdict form produced two appeals to the Second Circuit. This opinion puts an end to the case. The plaintiff gets nothing, not even a new trial.

The majority says there is no inconsistency in what the jury did. "Those factual findings were (a) that Labonia used excessive force and (b) that Plaintiff suffered some damages caused by that use of excessive force, but that (c) Labonia reasonably believed his conduct was justified in the circumstances and was therefore entitled to qualified immunity." We can expect that excessive force will cause the plaintiff harm, but that reality is not inconsistent with the notion that the excessive force was justified under the circumstances. Qualified immunity trumps the excessive force finding. The damages award is a nullity, and the jury should not have tried to award them.

This case does provide some insight into how jurors think. After the jury came back with the inconsistent verdict, the judge told the jury to resume deliberating because qualified immunity means no damages. The jury then gave the judge a note stating it was trying to compromise among rigid positions and that it wanted plaintiff to at least recover his expenses and let the police officer off the hook. The judge told the jury it cannot do this; it's all or nothing. Then the jury gave the judge a note stating it wanted to reopen deliberations on the claims that it had already rejected. The jury left the inconsistent verdict sheet as it was and formally completed its deliberations. Apparently the jury liked the plaintiff ... but it liked the police officer also. This why the case went to the Second Circuit on two separate occasions.

The complicated nature of this case produced a lengthy dissent from Judge Pooler, who writes:

In this case, the jury’s initial verdict was an impermissible compromise between jurors who wanted to find that defendant-appellee Leonard Labonia was entitled to qualified immunity and jurors who wanted to award damages to plaintiff-appellant John Aczel. After the legal inconsistency was explained by the judge, the jury was invited to strike its damage award, if it indeed agreed that Labonia was entitled to qualified immunity. The jury could not reach agreement to do so. Nonetheless, the district court set aside the jury’s damages award. Never before have we permitted a district court to reconcile a jury’s inconsistent verdict, where the jury was asked to do so itself, but was unable to reach agreement. This result usurps the role of the jury and fails to accord proper deference to Aczel’s Seventh Amendment rights. I would vacate the district court’s judgment as to Aczel’s claims of excessive force and assault and battery against Labonia and remand for a new trial on those counts.

Full Second Circuit will not re-hear doctor's conscientious objector case

If you practice long enough in the Second Circuit, sooner or later you are going to file a petition for en banc review. For the initiated, en banc review means that the entire Second Circuit, not the just the three judges who heard your case, decides to re-hear the case as a whole in order to set the law straight once and for all or to resolve a matter of exceptional importance. The Second Circuit rarely grants en banc review, but that does not stop people from trying.

A few months ago, the Court of Appeals ruled that a military doctor was entitled to conscientious objector status, crediting his belief that American involvement in Iraq and Afghanistan prompted him to sincerely change his mind about the morality of war. That case, Watson v. Geren, 569 F.3d 114 (2d Cir. 2009) is summarized here. The Court of Appeals held there was no basis for the army's rejection of Watson's petition, and that it would be futile to send the case back to the army for further consideration. The Second Circuit granted Watson's petition, and the case was over.

But it was not over. An active judge of the Second Circuit polled the court to see if en banc review was appropriate. Adhering to the original panel decision, the Court decided against en banc review, but not without a lengthy opinion from the judges who wanted the Court to take up the case again.

The majority says en banc review is not warranted because cases like this come around "once in a generation," hardly creating a pressing need for the entire Court to take up the issue. The Court also points out one of the criteria for granting en banc review in the first place: to clarify the state of the law, not to reanalyze the evidence in light of settled legal standards. The majority says, "We recognize that there may be differing views as to how the law should be applied to the facts in this case. But if the legal standard is correct, then the full court should not occupy itself with whether the law has been correctly applied to the facts. ... If that were the appropriate course, then our dockets would be overloaded with en banc polls contesting a panel’s examination of particular sets of facts."

Led by Judge Raggi, the judges who wanted to re-hear the case offered extensive analysis for their position. Noting that the Watson decision "concludes that it would be impossible for the agency to identify any reason with a basis in fact to support its challenged decision [against Watson]," Judge Raggi writes, "[t]he conclusion is disturbing for many reasons, not least of which are that the 'agency' in question is the United States Army and the challenged decision is the denial of a conscientious objector application, an issue on which the applicant bears the burden of proof by clear and convincing evidence and over which judicial review is 'the narrowest known to the law.'" Judge Raggi would send the case back to the army to further explain its decision to deny Watson conscientious objector status.

Enough judges sit on the Second Circuit that you have to believe that cases that win through one three-judge panel could very well lose if a different panel heard the case. If Judges Raggi, Cabranes, Jacobs and Livingston initially heard the appeal, Watson probably would not receive conscientious objector status. Judge Raggi summarizes Watson's position. He is a radiologist who opposes all war because all human life is sacred and war is a futile means of resolving human disputes. Yet, Judge Raggi suggests, the army could very well reject Watson's story because he would not serve in a combat role but, instead, he would save lives. To Judge Raggi and the others who signed on to her opinion, it is quite a stretch for Watson to object to his role.

The Army might reasonably identify an inconsistency between this opposition and Watson’s professed belief in the inviolable sanctity of every human life, the core of his personal moral code. Watson submits that there is no inconsistency because he is not suggesting that wounded American soldiers should be left to die; he is simply refusing himself to play any part in their treatment. He expects that other doctors – presumably with less refined moral codes – would provide the treatment necessary to save soldiers’ lives. It would hardly be irrational for [the army] to reject this tortured reasoning. If a person sincerely believes an act is immoral, then the person might reasonably be expected to believe that the act is immoral no matter who commits it. I am hardly suggesting that Watson should believe it immoral for any doctor to treat wounded American soldiers, a position that necessarily leads to the breathtaking conclusion that it is morally preferable for such wounded Americans to die for lack of medical care than for any doctor to play a part in their “weaponization.” I am noting simply that Watson’s effort to have it both ways, refusing to treat wounded soldiers himself but not opposing treatment by others – thereby denying the possibility of, and avoiding responsibility for, the loss of soldiers’ lives – exposes the shallow moral foundation of his claim to conscientious objector status.

Judge Raggi's opinion gets even more interesting when she talks about Watson's opposition to all war in the context of the Iraq and Afghanistan Wars. She suggests that the Army could question Watson's belief that war is "an entirely shameful endeavor" because, while "the particular war actions that he references [Iraq and Afghanistan] are ones subject to easy condemnation or, at least, to present debate," this only begs the question: whether "he also views as 'shameful' those war actions generally recognized for their liberating effects," such as Lexington and Bunker Hill, Iwo Jima, the Civil War and the liberation of concentration camps in World War II as "missing from Watson's list of shame."

No relief for man tortured in Syria under "extraordinary rendition"

In a rare en banc ruling, the Second Circuit has held that a foreign national whom the United States shipped to Syria to be tortured under the "extraordinary rendition" program cannot sue the U.S. government for civil rights violations. In the 7-4 decision, the Court of Appeals cites executive authority and national security concerns in declining to extend Bivens liability in this context.

The case is Arar v. Ashcroft, decided on November 2. This case was originally decided by the Court of Appeals last year, 532 F.3d 137 (2d Cir. 2009), when a three-judge panel ruled against Arar. The full Court of Appeals (11 judges) took up the case.

Full court review by the Second Circuit is almost as rare as a court finding Bivens liability, named after a 1971 Supreme Court case which held that federal officials may be sued for civil rights violations. But as the Court notes in this case, the Supreme Court rarely authorizes Bivens cases, usually finding either that the plaintiff has other ways to gain relief or that "special factors counsel[] hesitation" in creating a new right. In fact, the Supreme Court has only twice authorized a Bivens case. The Second Circuit is not about to open that door in a case like this.

The seven judges who ruled against Arar find that he cannot sue the U.S. government for sending him to Syria for torture. (Arar, a Syrian and Canadian citizen, was accused of having terrorist ties). Since Congress has not authorized lawsuits for this violation, the courts can only do so under special circumstances. Chief Judge Jacobs emphasizes that this case is inappropriate for judicial review because such a case "would have the natural tendency to affect diplomacy, foreign policy, and the security of the nation." Among other particulars, the Court says that this case would enmesh the courts in American foreign policy, a field in which the courts lack expertise. This case would also probe governmental secrets, drag foreign governments into the mix, intrude on presidential authority, implicate classified information and force the government to settle the case in order to avoid these problems, opening the door to "graymail," a term of art which means the government pays money to the plaintiff to protect classified information.

The four judges in dissent have turned in strong opinions on the other side. Judge Parker points out that the Convention Against Torture makes it illegal for the government to use torture in any circumstance, be it a state of war or political instability. Judge Parker's temperament is sober and measured, but in this case he decries "the miscarriage of justice that leaves Arar without a remedy in our courts" and says that sending a man to Syria to be tortured "shocks the conscience." He further criticizes the majority's rigid deference to the Executive Branch and points out that national security justifications often fall flat, i.e., the Pentagon Papers case and the Supreme Court's decisions upholding the Sedition Act of 1918 and the more recent prosecution of Jose Padilla. Recent Supreme Court reviewing policies at Guantanamo Bay also undercut the en banc majority's reluctance to interfere with Executive Branch authority.

Judges Sack, Pooler and Calabresi also file dissents. Quoting Hamlet, Judge Calabresi opens his by stating that "I believe that when the history of this distinguished court is written, today's majority decision will be viewed with dismay[.] I add a few words of my own, ... 'more in sorrow than in anger.'"

Are you a "state court loser"?

There are ways to stop people from re-litigating their cases in federal court after they lose in state court. One way is the Rooker-Feldman doctrine, an esoteric rule that says federal courts cannot independently review state court judgments. Rooker-Feldman only applies when you're a "state court loser," which is why it doesn't apply in this case.

The case is Green v. Mattingly, decided on October 21. "State court loser" is language deriving from Second Circuit case law. It means what it says. If you lost in state court, under Rooker-Feldman, there is no federal court relief. Since state courts are able to resolve constitutional issues, it is no argument that federal courts are more qualified to do so.

In Green, the City of New York took plaintiff's child away on suspicion of child neglect. Green's husband slapped her child, and the Administration for Children's Services moved against her in Family Court. Green claimed that ACS authorities lied about her, but Family Court granted an order temporarily removing the child. But on further consideration, Family Court changed its mind because there was no imminent risk to the child's life or health. Green accepted an "adjournment in contemplation of dismissal," which means the charges are formally dropped if she followed certain conditions for a year.

Can Green now sue the child protective authorities under the Civil Rights Act in federal court? Sounds like a great case; she lost her child for four days allegedly because of governmental misconduct. Except for the Rooker-Feldman doctrine. The district court said Rooker-Feldman means Green can't sue in federal court because the state court did initially rule against her, and there was no final adjudication of the case in that the case was conditionally dismissed. This ruling was incorrect.

As the Court of Appeals (Miner, Cabranes and Rakoff, D.J.) notes, "the Rooker-Feldman doctrine applies only to federal actions brought by 'state-court losers,' and plaintiff is not a state-court loser." There was no final order of disposition removing Green's child, and she also reversed the temporary order removing her child. "She did not 'lose' in state court." Moreover, Green is not asking federal court to sit in judgment of a state court ruling. Rather, "[t]he only conceivable 'judgment' against plaintiff -- the temporary removal of her child -- has already been undone." Put another way, Rooker-Feldman would only apply if the Family Court ruled against Green for good and she brought a civil rights case in federal court to get her child back. As that's not the case here, Green's case may proceed in federal court.

Pretext and the shifting explanation

In order to win an employment discrimination case, you have to show the employer's stated reason for your termination or demotion was a pretext (or a cover-up) for discrimination. Pretext is sometimes enough to support an inference of discrimination. As the Supreme Court observed in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), "the factfinder's disbelief of the reasons put forward by defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination."

There are many ways to prove pretext. One method is by showing that the employer's stated reason for plaintiff's termination shifted over time. The logic of citing the shifting explanation seems obvious. If the first justification was truly the real reason, the employer would not have to change that justification after the lawsuit was filed. Evidence of shifting explanations can go a long way toward winning the case. In EEOC v. Ethan Allen, 44 F.3d 116 (2d Cir. 1994), the Second Circuit held that the plaintiff could win his age discrimination case solely on the basis of the employer's shifting reasons for plaintiff's termination.

For plaintiffs, there are limits to the shifting explanation theory of pretext. In Liebowitz v. Cornell University, decided on October 23, the Court of Appeals did reverse summary judgment on the plaintiff's gender and age discrimination claim on the basis of much pretext for Cornell's refusal to renew Liebowitz's contract as a professor at the School of Industrial Relations. My write-up on the Liebowitz ruling is here. But in a footnote, the Second Circuit reigns in the shifting explanations strategy in ruling that it only works when the employer's reasons are dramatically different over time. Footnote 6 reads:

Plaintiff argues that “Defendants’ proffered reasons for terminating Plaintiff’s employment have changed over time” and “[s]uch changes support the inference that Defendants’ explanations are pretextual.” (Plaintiff’s Brief on Appeal, at 57.) Specifically, plaintiff submits that defendants have argued, at various stages in the litigation, that they did not renew plaintiff’s contract because (1) it was a “good investment,” (2) budgetary exigencies required it, and (3) she asked for more travel compensation than they were willing to provide. Although these justifications are not identical, all relate to the alleged financial burden of renewing plaintiff’s contract; in contrast, in the cases where we have found that variations in the employers’ professed reasons gave rise to an inference of pretext, those reasons were radically different. See, e.g., Carlton v. Mystic Transportation, 202 F.3d 129, 137 (2d Cir. 2000) (employer first cited declining profit as the motivation for claimant’s dismissal, then in litigation relied upon claimant’s poor job performance); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (employer stated during agency investigation that employee’s discharge was due to decrease of duties assigned to his position, but then stated at trial that employee’s qualifications were found lacking). Thus, pretext is not inferable from a shifting of rationales here.

Court of Appeals says Cornell may have discriminated against female, older professor

The School of Industrial Relations at Cornell University may have discriminated against a professor on the basis of age and gender, the Second Circuit has ruled in a decision which fleshes out the legal framework for resolving these cases and remands this case for trial.

The case is Liebowitz v. Cornell University, issued on October 23. Margaret Liebowitz was a non-tenured Senior Extension Associate, teaching in the program's Extension facilities in New York City (the program is based in Ithaca). In 2002, citing budgetary exigencies, the school did not renew Liebowitz's contract, though it allowed her to teach in 2002-03. She elected to retire in December 2002. When Cornell decided to terminate Liebowitz's employment, the parties were in the middle of a dispute over the reimbursement of her travel expenses stemming from her commute to Ithaca.

It's been a while since the Court of Appeals has resolved a disparate treatment discrimination claim in a published opinion. It's worth paying attention to these cases which focus on how much evidence is enough to make out a prima facie case and whether the plaintiff has enough evidence to show the defendant's reason for terminating the plaintiff is pretext for discrimination. With one exception, the Court does not chart new ground here, but Cornell's vigorous defense raises a cornucopia of legal issues.

Liebowitz has a prima facie case of age and gender discrimination. The Second Circuit (Kearse, Katzmann and Bianco) follows the lead of federal courts around the country in finding that the failure to renew an employment contract constitutes an "adverse employment action." Noting that ADEA and Title VII prohibit the discriminatory failure-to-hire based on age or gender, the Court says, "under defendants’ reasoning, an employee could bring a discrimination lawsuit if an employer refused to hire her based on her age and/or gender, but not if the same employer failed to renew an employment contract for the same discriminatory reasons. We decline to adopt that flawed legal analysis, which is inconsistent with prior decisions of the Supreme Court and this Court."

Rounding out the prima facie test, Liebowitz also makes out an inference of discrimination because "(1) during the relevant time period, in addition to plaintiff, defendants laid off five other employees, all of whom were older than the age of fifty; (2) defendants reassigned teaching duties once performed by plaintiff to at least three male instructors; and (3) defendants did not consider plaintiff for vacant positions that arose in 2002, prior to plaintiff’s departure, in the Long Island and New York City offices, and attempted to fill one such position in the New York City office with a younger, male employee."
The Second Circuit emphasizes that "plaintiff is not required to establish that she was replaced by a single male and/or younger employee in order to carry her [prima facie] burden." Moreover, "the fact that the ILR School also hired females as well as males during the 'budgetary crisis' does not preclude an inference of gender discrimination."

A prima facie case is not going to do it, however. You also have to show the employer's stated reason for not renewing the contract is pretext for discrimination. Liebowitz has enough evidence on this issue for a trial. Cornell cites "anticipated budget cuts and the expense of maintaining her travel allowance." Cornell may be masking its discriminatory intent, the Court of Appeals says, because: (1) the budgetary concerns in 2002 had diminished over 2002-03 and by 2003 the school was in good financial shape; (2) the school's Extension Division had enough money to hire 12 new employees during the relevant time period; and (3) although the school laid off six employees, these employees were all older women. In addition, (4) although positions became vacant after Cornell decided not to renew her contract, the school did not consider her for any of them, and the Long Island branch wanted Liebowitz on the faculty and someone was actually fired for making Liebowitz an offer; (5) a younger male was hired to fill a vacant teaching position in NYC in 2002 and (6) Liebowitz was not considered for a position that opened up in 2003.

Cornell further said that it did not make room for Liebowitz because of personality conflicts. This is a common justification for adverse personnel decisions. The jury may reject that defense because there is evidence that the personality conflicts in the New York City office dissipated by 2002 and "similar past conflicts did not deter defendants from planning to place a male employee in that office."

Finally, Cornell said it let Liebowitz go because of her large travel reimbursement (New York City to Ithaca). This may also be pretextual, the Court says. "[I]t was a common practice amongst male Extension Division faculty members to negotiate for compensation as she did, and that none of these employees’ contracts were terminated or not renewed. Plaintiff submits that, if her requests were so onerous that granting them made her continued employment unsustainable, defendants were free to simply deny them."