A school system was rightly directed to pay $1 million in damages for failing to take measures to stop persistent racist bullying and attacks on a black student that lasted more than three years, a federal appeals court has ruled.
The U.S. Court of Appeals for the Second Circuit upheld a $1 million award under Title VI of the Civil Rights Act of 1964 in favor of Anthony Zeno, who endured assaults, racist taunting and threats that a jury found should have been squarely addressed by officials at Pine Plains Central School District in New York.
Judges Jose Cabranes, Debra Ann Livingston and Denny Chin soundly rejected the school system’s argument that there was insufficient evidence to sustain the award in Zeno v. Pine Plains Central School District, 10-3604-cv.
The panel had some scathing language for the district’s argument that the court should look to employment discrimination cases for guidance because Zeno had established only “garden variety” damages.
“The fact is that this is not an employment discrimination case, nor are the damages of the ‘garden variety’ type,” Chin wrote for the panel. “Anthony was not an adult losing sleep to workplace stress. Rather, he was a teenager being subjected—at a vulnerable point in his life—to three-and-a-half years of racist, demeaning, threatening and violent conduct.”
When at age 16 Zeno moved from Long Island to Pine Plains in Dutchess County, he transferred as a freshman to Stissing Mountain High School, where minorities make up less than 5 percent of the student body.
The harassment began as a student ran charging toward Zeno screaming and threatening to “rip” his “face off,” telling him, “We don’t want your kind here.” While the assailant was being restrained by other students, he called Zeno a “nigger” and told him to go back where he came from.
When Zeno’s mother, Cathleen Zeno, voiced concern to the school principal, John Francis Howe, he allegedly said, “This is a small town and . . . you don’t want to start burning your bridges.”
Cathleen Zeno would meet with Howe between 30 and 50 times over the next three-plus years. The racist taunts and physical attacks escalated into her son’s sophomore year, when a football teammate punched him and said “he was going to kick [Zeno's] black ass.” Another student had to be stopped from hitting Zeno with a chair as he yelled a racist slur. And Zeno walked into a school bathroom to see the graffiti “Zeno is dead” and “Zeno will die.”
Zeno also was threatened with references to lynching, with students displaying a noose or threatening to put a rope around a nearby tree. The school responded in some of these incidents by suspending students, some for five days, and by moving one student to another school.
Twice, Zeno obtained orders of protection, three times his life was threatened and, more than once, police were called to the school to respond to violent attacks on him.
When Zeno’s mother wrote the school superintendent about “racial slurs and threats to our lives,” Howe responded by instructing staff members and teachers to keep an eye out for Zeno and reach out to him.
The Dutchess County Human Rights Commission wrote to the superintendent referring to a complaint of racial harassment, and Zeno’s initial lawyer, Michael Sussman, asked the school both to provide Zeno with a “shadow” to accompany him at school and to institute racial sensitivity training. The Dutchess County NAACP also offered to help, but the school system declined to grant Sussman’s requests.
The district did ultimately hold separate one-day courses for teachers and staff, parents and students called “Altering the Culture of Cruelty: A Legally Based Bullying and Harassment Prevention Program,” but Chin said the district’s “treatment of race and discrimination was tangential at best.”
With Zeno struggling in school, the district designed an individual education plan (IEP) for him and, by his junior year, he was traveling for some classes to an off-campus program, where he also was subjected to racist slurs and abuse that led to some students being suspended.
In his senior year, 2007-2008, the district started holding sensitivity training for students and had assemblies to discuss bullying, prejudice and racial harassment. Zeno completed his senior year as part of the off-campus program but essentially left school without meeting all of his requirements, and he was given an IEP, but not a Regents, diploma.
Zeno filed suit in the Southern District in 2007. A jury in 2010 found the district liable for violating Title VI, which bars discrimination by agencies receiving federal funds, and awarded Zeno $1.25 million.
Southern District Magistrate Judge Paul Davison denied the district’s motion for judgment as a matter of law but granted the district’s motion for a new trial subject to Zeno accepting a reduced award of $1 million.
The district appealed to the Second Circuit, where the judges, on Oct. 21, 2011, heard the district argue that its response to each reported incident was reasonable, it was under no obligation to adopt the reforms proposed by Sussman and it was unaware that its responses were inadequate or ineffective.
Chin said the evidence at trial showed that “many students” in the district “taunted, harassed, menaced and physically assaulted Anthony. His peers made frequent pejorative references to his skin tone, calling him ‘nigger’ nearly every day.”
Taken together with the threats and physical attacks, Chin said, Zeno was “discriminatorily deprived” of educational benefits —he was denied a “supportive, scholastic environment free of racism and harassment, he accepted an IEP diploma rather than pursue further studies” at the high school, and, finally, was “driven” to leave the school without completing his education.
On the record, Chin said, “the jury easily could have found that the District actually knew of the continuing harassment of Anthony” and the district exercised “substantial control” over the circumstances of the harassment.
On the critical issue of whether school officials were deliberately indifferent to the harassment, the district offered the defense that it repeatedly disciplined students who victimized Zeno.
But Chin said the district knew that disciplining some students didn’t deter others from harassment that increased in severity and “predominantly targeted Anthony’s race and color.”
While many students were disciplined, he said, the district “dragged its feet before implementing any non-disciplinary remedial action—a delay of a year or more,” and some of those actions were “little more than half-hearted measures.”
“Although actually eliminating harassment is not a perquisite to an adequate response … the District’s actions could not have plausibly changed the culture of bias at SMHS or stopped that harassment directed at Anthony,” Chin said.
Finally, he said, “a jury reasonably could have found that the District ignored the many signals that greater, more directed action was needed.”
Rebuffing the district’s claim that the damages were excessive, Chin said they were not outside the permissible range “given the severity, duration, and egregiousness of Anthony’s unchecked harassment.”
Stephen Bergstein of Bergstein & Ullrich in Chester, N.Y., represented Zeno.
“I don’t know of a case where the harassment went on for three-and-a-half years, and I don’t know of any where a federal appeals court upheld this large an award,” Bergstein said.
Zeno’s “high school experience was ruined by the harassment and racial bullying,” Bergstein said. “I imagine school districts will examine this decision to firm up their responsibility to students because there was a lot that went wrong here. Deliberate indifference is a pretty hard standard to meet. A lot of those kids were punished, but the harassment was so widespread that it was like there was a cloud over the school.”
John Moore of Towne, Ryan & Partners represented the school district.
Jay Worona and Pilar Sokol in Latham, N.Y., appeared amicus curiae for the New York State School Boards Association, in support of the school district.
Assistant Attorney General Thomas Perez of the Justice Department appeared amicus curiae for the United States, in support of affirming the award.
Mark Hamblett writes for the New York Law Journal, an affiliate of the Daily Report.