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Court Rejects Immunity in Kindergarten Race-Harassment Suit

A federal appeals court has rejected qualified immunity for a Connecticut teacher and principal in a case in which a black kindergarten student and his parents allege that the educators were deliberately indifferent to repeated instances of racial harassment of the boy by his classmates.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, unanimously agreed that the case against the two educators should go to trial, although the court expressed reservations about the recollections of the boy and general disagreements about the facts.

However, the court agreed that if the allegations about the 2002-03 academic year at Wakelee Elementary School in Wolcott, Conn., are proven, student Nicholas DiStiso, the only African-American in his class, faced "severe harassment" that included fellow pupils calling him "nigger" and "blackie."

"We recognize that much of the evidence pertaining to racial harassment of Nicholas is a product of limited memory," the court said in its Aug. 21 opinion in DiStiso v. Cook. "Nevertheless, if the jury were to credit Nicholas, as we must assume it would, it could find that kindergarten classmates called the child racial epithets or disparaged his race in no fewer than three ways: (1) by calling him "nigger," (2) by calling him "blackie," and (3) by suggesting that the boy's skin remained dirty even after washing."

The principal and kindergarten teacher (whom I am not naming here even though they are identified in the opinion) have denied in court papers that they acted with indifference to any alleged racial harassment.

The court said the two educators are not entitled to immunity based on the grounds that the alleged harassment was insufficiently pervasive or severe. The court also said the facts were in dispute as to whether the teacher and principal had actual knowledge of the harassment. The parents allege in their suit that they made repeated complaints about their son's treatment.

The court also upheld a district court's finding that the record evidence, if true, supported allegations that the teacher and principal did not respond adequately to the alleged harassment.

"In sum, there are disputed issues of fact as to each element of plaintiff's claims that [the teacher and principal] were deliberately indifferent to kindergarten students' repeated use of racial epithets to belittle Nicholas," the court said. "Because the district court found the record evidence sufficient to allow each of those elements to be decided in favor of plaintiff, and because we must accept that sufficiency determination on this appeal, [the teacher and principal] are not entitled to judgment on the ground of qualified immunity."

On a separate issue, the 2nd Circuit panel ruled 2-1 to overturn a federal district court and grant qualified immunity to the principal, the kindergarten teacher, and a 1st grade teacher with regard to the lawsuit's separate allegations of racially motivated physical misbehavior against the boy. The dissenting judge said he would have withheld qualified immunity from the kindergarten teacher over some of the allegations of physical conduct.

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