Teachers Liable for Violating Equal Protection Clause When No Sufficient Action to Stop Student-on-Student Racial Discrimination

Distiso v. Cook, 691 F.3d 226 (2d Cir. 2012)

This Second Circuit decision analyzed the Equal Protection Clause in the context of racially motivated harassment among classmates.

The plaintiff’s mother, on behalf of her minor son, filed a civil rights action against the son’s kindergarten teacher, first grade teacher, and principal, alleging violations of the Equal Protection Clause. Classmates of the son, an African-American, used racial epithets and told him his hands remained dirty even after washing. The son was also subjected to physical abuse by the classmates. The verbal and physical harassment allegedly occurred during kindergarten and first grade.

The 14th Amendment’s Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” To prevail on a § 1983 claim of race discrimination in violation of equal protection, the plaintiff has to prove the defendant’s underlying racially discriminatory intent or purpose. Claims of intentional race discrimination can be based on the deliberate indifference of school boards, administrators, and teachers to invidious harassment of a student by other students. To succeed on a deliberate indifference to student-onstudent harassment claim, the plaintiff has to prove that the child was harassed by other students based on race, the school official had actual knowledge of the racebased harassment, and the official’s response to the harassment was so clearly unreasonable as to give rise to a reasonable inference that the official intended for the harassment to occur.

Here, the school officials argued that they were entitled to summary judgment on qualified immunity grounds. The court disagreed, holding that the officials were not entitled to qualified immunity with respect to the verbal harassment that the child had to endure in kindergarten. The use of racial epithets was severe and pervasive enough to fall within a clearly established right of equal protection; the officials had actual knowledge of the harassment given that the child’s parents informed them of it; and the officials’ response to the harassment — or lack thereof as they did nothing about it — was clearly unreasonable.

The court did, however, hold that the school officials were entitled to qualified immunity with respect to the physical harassment. There was no evidence that the classmates’ physical harassment was linked to the racial name-calling. Instead, the evidence indicated that the physical misbehavior was the type commonplace for children of that age. As such, no clearly established law would have alerted the school officials that they could be deemed to have actually known that the physical misbehavior was racially motivated.