The case is DiStiso v. Cook, decided on August 21. This is the first time in years that the Second Circuit has provided extensive guidance on school harassment cases. What complicates matters is that the parents brought this case under the Equal Protection Clause of the Constitution (which prohibits racial discrimination in general) and not Title VI of the Civil Rights Act of 1964, which addresses discrimination in public schools. Unlike statutory claims like Title VI, qualified immunity is available to public defendants in Section 1983 claims brought under the Constitution, which means the defendants can wiggle out of the case if the law governing the case was not clearly established at the time of the alleged violation.
The boy was harassed both verbally and physically. He was unable to testify who exactly committed the harassment. Still, since the parents complained about it, the jury could find that the teacher and principal knew about the racial name-calling in kindergarten (other kids called him "nigger" and "blackie" and said his skin was dirty after he washed up). The jury may also find that defendants' response to these complaints was "clearly unreasonable" (the legal standard in these cases) because they did nothing about it, i.e., they did not do anything to stop or deter the harassment or undertake a full investigation. Legally, this part of the case is not that remarkable, except for the holding that the parents' testimony about what their son told them about the harassment is admissible at trial. The Second Circuit (Raggi, Pooler and McLaughlin) says:
Although Nicholas himself had no present recollection of the frequency of these racially derogatory remarks or even of who said them, when they were said, or the circumstances in which they were said, his parents testified that their son complained of racial name-calling, specifically, use of the word “nigger,” approximately eight, and possibly as many as 15, times over the course of his kindergarten year. Mr. and Mrs. DiStiso may not be competent witnesses to the underlying truth of their child’s complaints, i.e., to the fact that other children called Nicholas racial epithets. But if a jury were to credit Nicholas’s testimony that he experienced such name-calling and reported it to his parents, his parents’ testimony as to the number of times their son made such reports, which we must assume would also be credited, might constitute circumstantial evidence as to the frequency of the harassment. This is enough to raise triable issues of fact as to (1) whether Nicholas experienced racial name-calling during his kindergarten year at Wakelee and, if so, (2) whether that name-calling was sufficiently severe or pervasive as to have effectively deprived the child of educational opportunities provided by the school.The Court says, however, that defendants are entitled to qualified immunity on claims that they were deliberately indifferent to acts of physical harassment. The law is not clearly established in this area, so there was no way for defendants to know that otherwise race-neutral physical harassment was racially-motivated, even if the verbal harassment to which they were aware was explicitly racial. Over Judge Pooler's dissent, Judge Raggi writes, "Where, as in this case, the subsequent misbehavior is of a type routinely engaged in by school children of the age at issue without regard to motivation, there must be some objective evidence linking initial racially hostile acts to such subsequent misbehavior to support a finding that a school official has actual knowledge that the latter behavior, like the former, is racially motivated." There was "no objective evidence linking the physical conduct to the alleged name-calling. Nor is there evidence that the misbehavior went beyond the commonplace for children of Nicholas's age. In these circumstances, no clearly established law would have alerted defendants that they could be deemed to have actually known that the physical misbehavior was racially motivated so as to expose their responses to the physical misbehavior to possible constitutional scrutiny."
The result in this case would be different if the same kids who verbally harassed the boy were the ones who physically harassed him. But the child is unable to identify the harassers, and there is no other evidence connecting the bad kids with both forms of harassment. "In such circumstances, a jury might well find that if a teacher actually knows that particular students have harassed a classmate for invidious reasons on several occasions, the teacher actually knows that the same prohibited motive animates the same students’ further misbehavior toward the same classmate. ... Absent some such evidence to connect the racial name-calling to the later commonplace physical misbehavior, there is no basis in established law for inferring that a teacher who receives complaints as to the racial motivation for former conduct has actual knowledge that the latter conduct is similarly motivated."