School Officials to Head Back to Court Before Going Back to School

The first day of school in Wolcott, Conn. is August 29, but two public school employees in the central Connecticut town might be more focused on “back to court” than “back to school” this week.

The Second Circuit Court of Appeals ruled on Tuesday that parents of a biracial student can proceed with deliberate indifference claims against educators who they claim stood by while white students hurled racial epithets at their 5-year-old, reports Thomson Reuters News & Insight.

Yes, you read that correctly: Five and six-year-olds are slinging slurs in Connecticut.

Plaintiff Robin DiStiso, on behalf of her biracial son Nicholas, sued the Town of Wolcott, Connecticut, its Board of Education, and various named educators and administrators in Connecticut Superior Court for discrimination in connection with the child's enrollment in the kindergarten and first-grade classes at Wakelee Elementary School. The DiStisos claim their son was verbally harassed on at least 15 occasions in 2002 and 2003. The alleged harassment reportedly started when the boy was in kindergarten and continued into first grade, according to News & Insight.

The defendants claimed that qualified immunity should shield them from liability for alleged deliberate indifference to kindergarten and first-grade students' racial harassment in violation of the Equal Protection Clause. Tuesday, the Second Circuit announced that DiStiso could move forward with claims that Wakelee Principal John Cook and kindergarten teacher Jacquelyn Uccello were deliberately indifferent to racial name-calling by kindergarten students, which in one instance may have been accompanied by a physical assault on Nicholas.

The school employees, however, are entitled to qualified immunity for other physical attacks against Nicholas.

The appellate court noted, "There is no record evidence as to the identity of any child who engaged in the alleged racial name-calling. Nor is there any evidence that any perpetrators of the alleged physical misbehavior ... (1) were involved in the earlier racial name-calling, (2) witnessed the earlier racial name-calling, or (3) even knew about the earlier racial name-calling. 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 [physical] conduct is similarly motivated."

Bullying has become a popular topic in recent years. The focus in the media is usually on the bullies, their victims, and parental liability, but public school employees can also be held accountable in limited circumstances if they don't stop bullying in schools. If you represent a school district within the Second Circuit Court of Appeals' jurisdiction, make sure that school officials understand that they could be sued for deliberate indifference if they know that a student is being racially harassed, and don't take steps to stop it.

Related Resources:

• DiStiso v. Cook (FindLaw's CaseLaw)
• Monell v. Department of Social Services (FindLaw's CaseLaw)
• Bullying (FindLaw's Learn About the Law)
• Court Questions 'Deliberate Indifference' in Child Rape Case (FindLaw's Fifth Circuit Blog)