The U.S. Court of Appeals for the Second Circuit(which covers NY) 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 Dutchess County, NY. The case is important because it places a burden directly on the school district to act proactively and early to address cyberbullying. Here are some general statistics on Cyberbullying:
Over 95% of teenagers use social networking sites to communicate with peers.
Over 25% of teens have been bullied repeatedly through text messages or the Internet. 90% of victims will not inform a parent or trusted adult of their abuse.
1 in 3 teens have experienced cyber-threats online. 85% of teenage online users have been cyber bullied at least once. 87% of teens use cell phones, over 93% of teens are online, and 75% of teens use Facebook alone. Statistics retrieved from: http://cyberbullyingstatistics.org & https://www.ncjrs.gov/internetsafety/cyber.html
With the prevalence of cyberbullying, many school districts have held assemblies, brought in speakers and had workshops on the topic. My own not-for-profit speakers group, The Law Squad, presented a seminar for parents at the Nassau County Bar Association last year and several school administrators were in attendance and were concerned about what their responsibility was in the face of this widespread issue.
Well, The Second circuit has now made it clear that, in the educational setting, a school district is liable for intentional discrimination when it has been “deliberately indifferent” to teacher or peer harassment of a student. Liability only arises if a plaintiff establishes: (1) substantial control, (2) severe and discriminatory harassment, (3)actual knowledge, and (4) deliberate indifference. SO the school must actually receive notice that the harassment is going on and it must be severe harassment. A school district will be subject to liability for third-party conduct only if it “exercises substantial control over both the harasser and the context in which the known harassment occurs.” Davis, 526 U.S. at 644-45 (reasoning that the school must have “control over the alleged harassment” and “authority to take remedial action.”
In prior cases, the Supreme Court has held that a school district exercises “substantial control” over the circumstances of the harassment when it occurs “during school hours and on school grounds.” Similarly, a school district’s authority to take remedial action lies in its longstanding disciplinary oversight over its students. So harassment that is solely occurring outside the classroom and school building is normally not something the school district is expected to be able to regulate.
The court here went on to state that even assuming the requisite level of control, not all harassment is actionable. The harassment must be “severe, pervasive, and objectively offensive” and discriminatory in effect. But discrimination under Title VI is not just the ordinary forms of discrimination (race, gender, religion) but includes being excluded from, or denied the benefits of, a particular school program. Discriminatory actions “[r]estrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit” under the school system, according to the decision.
Finally, “only deliberate indifference to [student-on-student] harassment can be viewed as discrimination by school officials themselves.” The school’s action — or inaction — must, “at a minimum, cause students to undergo harassment or make them liable to or vulnerable to it,” said the court.
Critical to the court’s holding here was its setting of the parameters for what constitutes “deliberate indifference. The Second Circuit stated that a finding of deliberate indifference depends on the adequacy of a school district’s response to the harassment:
A failure to respond or a response that “only follows after a lengthy and unjustified delay and a response that “amount[s] to deliberate indifference to discrimination have all been found inadequate.Nevertheless, a school district’s actions are only deliberately indifferent if they were “clearly unreasonable in light of the known circumstances.Thus, when weighing the adequacy of a response, a court must accord sufficient deference to the decisions of school disciplinarians. To that end, victims do not have a right to specific remedial measures./blockquote>
Zeno v. Pine Plains Central School District
at page 22 (internal citations omitted).
The court was dealing with significant harassment here over a period of three plus years. Anthony Zeno who is black was subjected to constantly being called a “nigger” in the hallways and other areas of the school; he and his family regularly received death threats in an d out of a school almost immediately after moving into the predominantly white neighborhood. He was often shoved, pushed, punched, knocked down. His locker door was filed open and his locker filler with garbage which fell onto him when he opened the locker. “Zeno must Die” and Zeno Go Home” were graffitied on the bathroom walls. Noosed ropes were left throughout the school on various occasions. His education suffered and he eventually was graduated with an IEP and not a regular or regents high school diploma.
The school did not completely ignore Anthony, his parents, the NAACP, and his lawyers repeated request for help. They suspended the students who were caught engaging in the various acts of harassment; held assemblies on character building; and hired an expert to help teachers and staff address the problem in Anthony’s senior year. But the court here said too little, too late:
The jury could have found and apparently did find that the District’s remedial response was inadequate — and deliberately indifferent — in at least three respects.
First, although the District disciplined many of the students who harassed Anthony, it dragged its feet before implementing any non-disciplinary remedial action — a delay of a year or more. . . .Second, the jury could have reasonably found that the District’s additional remedial actions were little more than half-hearted measures. For example, it coordinated mediation, but did not inform Mrs. Zeno when or where it would be held. Its additional programs either (1) did not focus on racial bias or prejudice, or (2) made attendance optional. This was evident in the District’s training for students, parents, and teachers; it was for one day only and focused on bullying and sexual harassment, rather than racial discrimination.. ..The record indicates that these programs were selected in lieu of the free shadow or racial sensitivity training offered by the Dutchess County Human Rights Commission and N.A.A.C.P. . ..almost a year earlier and only nine months after Anthony was first harassed. Although actually eliminating harassment is not a prerequisite to an adequate response,the District’s actions could not have plausibly changed the culture of bias at [the school] or stopped the harassment directed at Anthony. A jury was entitled to compare the alternatives offered by the Dutchess County HRC and N.A.A.C.P. with the District’s programs when it evaluated the adequacy of the District’s ultimate response. Thus, we conclude that the record supports the jury’s finding that the District’s deliberately indifferent responses effectively caused Anthony’s continued harassment. Finally, despite the District’s present 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. . … Anthony had been menaced, threatened, and taunted. He endured numerous serious — and sometimes life-threatening — incidents of harassment. Moreover, the District knew that Anthony was called “nigger” and other racial slurs during his entire three-and-a-half years at [the school]. The jury was entitled to conclude that the District knew that greater action was required.
The court therefore set out that the school district must address the specific nature of harassment and that if the initial steps don’t work, it must continue to step up its efforts in light of the continued harassment. The court said that in light of all that Anthony went through and due to the deliberate indifference of the District $1,000,000 was not an excessive award.
While most students will not face the kind of harassment that Anthony Zeno was forced to endure for nearly four years, this case sends a clear message to Districts that paying lip service to cyberbullying in the face of known harassment will not be enough. It must take strong repeated measures to combat it and educate its student population and staff. Counsel to school districts would be wise to start implementing training on the subject to the core curriculum of District in an attempt to nip cyber bullying in the bud before it becomes a major problem in the classrooms and hallways and for which the District will be held accountable.