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Appeals court upholds jury award to student who was harassed

A federal appeals court has upheld a $1 million award to a Latino man who endured 3 1/2 years of racial threats and harassment at a rural high school in Pine Plains, N.Y.

A jury found in 2010 that Anthony Zeno endured continual instances of “racist, demeaning, threatening and violent conduct” from fellow students who harassed him at Stissing Mountain High School in the Pine Plains Central School District.

The three-judge appeals panel categorically rejected the district's arguments that it had responded swiftly and unequivocally to the harassment; that it was not deliberately indifferent to the harassment; and that it never knew that its responses were ineffective or inadequate. The judges said the evidence was sufficient for a jury to conclude the harassment of Zeno was "severe, pervasive, and objectively offensive."

“The evidence presented at trial demonstrated that, from 2005 through 2008, many students in the district taunted, harassed, menaced, and physically assaulted Anthony,” the judges wrote. “His peers made frequent pejorative references to his skin tone, calling him a 'nigger' nearly every day. They also referred to him as 'homey' and 'gangster,' while making references to his 'hood' and 'fake rapper bling bling.' He received explicit threats as well as implied threats, such as references to lynching.”

The 49-page appeals court ruling spells out the treatment Zeno received during his time in the Pine Plains district:

In January 2005, Anthony, a dark-skinned 16-year-old freshman student who was half white and half Latino, moved from Long Island to Pine Plains. He enrolled at Stissing Mountain, a school where minorities comprised less than 5 percent of the student population.

Within a few weeks, court documents state, a student -- a stranger to Anthony -- charged toward him, screaming that he would "rip [Anthony's] face off and . . . kick [his] ass." Other students held the aggressor back, and unidentified students in the crowd called Anthony a "nigger" and told him to go back to where he came from. Anthony's mother, Cathleen Zeno, subsequently voiced her concerns to school principal John Francis Howe, who told her, "This is a small town don't want to start burning your bridges."

The harassment continued, and Mrs. Zeno wrote to District Superintendent Linda Kaumeyer and the school board about the "verbal racial attacks and physical abuse" on Anthony and his younger sister, who was also a student in the district.

“Kaumeyer neither offered to meet with Mrs. Zeno nor informed Howe of the letter,” the appeals court opinion states.

Student involved in the harassment were disciplined with warnings or suspensions, but the district did not take other remedial measures during Anthony's freshman year.

During his sophomore year, Anthony faced additional harassment, which he reported to school officials. In a letter to the superintendent, Mrs. Zeno described "verbal attacks includ[ing] racial slurs and threats to their lives" and physical attacks so violent that the high school called the police.

In October 2005, Marilynn A. Vetrano of the Dutchess County Human Rights Commission (HRC) wrote the superintendent about reported incidents involving racism; Anthony's lawyer, Michael H. Sussman, asked district officials to provide Anthony with a shadow, who would accompany him at school, and to offer racial sensitivity programs to show the district's commitment to zero tolerance of racism and bias. In November 2005, representatives of the HRC and the NAACP with the the superintendent and high school principal, and offered to provide shadowing for Anthony and racial sensitivity sessions for the school at no charge.
“The district, however, declined to assign Anthony a shadow and chose not to implement the HRC's training program,” the opinion states.

At the end of the school year, the district prepared an Individualized Education Program (IEP) for Anthony. It stated that "Anthony has been struggling with acceptance in the school environment. There have been numerous incidents between Anthony and others with prejudicial or racial overtones."

After the IEP was finalized, Special Education Director Maryanne Stoorvogel (who prepared the IEP), and other school officials discussed the IEP with Mrs. Zeno, who again raised concerns regarding the bias Anthony continued to encounter at school.

Stoorvogel was aware of the "numerous incidents . . . with prejudicial or racial overtones" concerning Anthony, but never investigated the harassment. As the District's Title IX compliance officer, Stoorvogel was responsible for investigating alleged violations of both Title IX of the Education Amendments of 1972 and Title VI.

Stoorvogel also was also part of a group (which included the superintendent and other district administrators) that met on a biweekly basis to discuss issues of internal importance.

“Throughout Anthony's sophomore year...the administrators never discussed racial harassment, generally, or Anthony, specifically.” the opinion says.

In February 2006, the district arranged a mediation between Mrs. Zeno and Anthony's antagonists and their respective parents, but the district failed to notify Mrs. Zeno when the mediation was scheduled, and she did not attend. In addition, the prospective mediator was not trained in bias awareness or diversity.

The district also held separate one-day programs for faculty and staff, students, and parents on preventing harassment, but the program focused on bullying and sexual harassment.

“Despite being customized for the district, its treatment of race and discrimination was tangential at best,” the opinion says. “The district never implemented discrimination-, bias-, diversity-, or race-specific programs during the 2005-2006 academic year.”

The harassment against Anthony continued in his junior year. In January 2007, a student threatened to "kick [Anthony's] black ass" and threatened to rape his younger sister. Anthony threw a punch, and the district punished Anthony, but not the instigator.

During this year, the district hired a consultant to increase diversity awareness in the district through student focus groups, surveys, and meetings with staff, parents, and community members. The consultant also was supposed to train faculty and staff on the importance of acknowledging racial diversity and recognizing racial stereotypes, and to train students on diversity issues. But the consultant did only preliminary work and held no training sessions during the 2006-07 school year.

During Anthony's senior year, at a Stissing Mountain football game, a student called Anthony's sister a "slut" and threatened to beat Anthony. Anthony and the student began to fight. A friend of Anthony tried to break up the fight when another student jumped the friend and choked him until he lost consciousness. Off-duty officers broke up the fight, and the student who choked Anthony's friend ultimately received a 45-day suspension.

Still, students continued to call Anthony a "nigger" in the hallways "all the time," and he reported these comments to the principal.

During the 2007-2008 academic year, the consultant's work finally resulted in sensitivity training sessions for students. Students were randomly selected to participate, but were allowed to opt out.

In his fourth year, Anthony was short of the credits needed to graduate. He was entitled to stay in the district until he turned 21 and try to satisfy the New York Regents diploma requirements. Rather than endure further harassment while pursuing a Regents diploma, Anthony decided to accept an IEP diploma. Students with IEP diplomas can attend certain community colleges, but employers, the military, four-year colleges, apprenticeship programs, and business or trade schools generally do not accept them.

Mrs. Zeno expressed concern about the IEP diploma, but she decided it would too damaging to have Anthony stay enrolled in the district for two more years.

The judge's ruling notes that while Anthony was enrolled at Stissing Mountain, his mother met with the principal between 30 and 50 times.

“The school never offered proactive solutions,” the opinion says. “On the contrary, (he) told Mrs. Zeno that he was unsure of how to keep Anthony safe on a daily basis.”

In defending itself against the allegations in the lawsuit, the Pine Plains district contended that it was not deliberately indifferent to student harassment of Anthony. The district said it reasonably responded to each reported incident, but it was under no obligation to carry out the reforms sought by Anthony's lawyer, and never knew that its responses to the harassment were inadequate or ineffective.

The appeals court concluded that the district court jury acted reasonably when it found that Anthony had endured severe harassment.

“The evidence presented...demonstrated that, from 2005 through 2008, many students in the district taunted, harassed, menaced, and physically assaulted Anthony,” the appeals court wrote. “His peers made frequent pejorative references to his skin tone....He received explicit threats as well as implied threats, such as references to lynching....In addition, the jury reasonably could have concluded that as a result of the harassment, Anthony was discriminatorily deprived of three educational benefits. First, Anthony was deprived of a supportive, scholastic environment free of racism and harassment....Second, Anthony accepted an IEP diploma rather than pursue further studies at (Stissing Mountain)....The IEP diploma was less likely to be accepted by employers or four-year colleges....Finally, Anthony was driven to leave the high school he had attended for three-and-a-half years, without completing his education.”

The record also shows that the Pine Plains district received numerous reports of harassment affecting Anthony.

“Five circumstances should have informed the district's continued response to student harassment of Anthony,” the appeals court says. “First, it knew that disciplining Anthony's harassers -- through suspensions or otherwise -- did not deter others from engaging Anthony in serious and offensive racial conduct....Second, the harassment directed at Anthony grew increasingly severe. Of the eight incidents that occurred during his sophomore year, two were violent, three were threats on his life, and two resulted in orders of protection against the students involved. Third, the disciplinary action had little effect, if any, on the taunting and other hallway harassment....Fourth, the district knew that the harassment predominantly targeted Anthony's race and color. And fifth, as early as November 2005, the Dutchess County HRC and NAACP offered the district both a free shadow, to accompany Anthony during the school day, and a free racial sensitivity training series.”

The jury had ample evidence to conclude that the district response to the harassment was inadequate, the appeals court found.

“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....At some point after Anthony's first semester, the district should have done more, and its failure to do more 'effectively caused' further harassment....Second, the jury could have reasonably found that the district's additional remedial actions were little more than half-hearted measures....We conclude that the record supports the jury's finding that the district's deliberately indifferent responses effectively caused Anthony's continued harassment.”

The appeals court also rejected the Pine Plains district's argument that the $1 million judgment in favor of Anthony was excessive.

“Anthony's prolonged harassment resulted in an educational environment that was disparately hostile, depriving him of a scholastic benefit,” the panel said. “Anthony also accepted the IEP diploma rather than attempt to satisfy the Regents requirements. As a consequence, the jury reasonably could have found that his ability to attend college or enter the workforce was significantly and adversely impaired.”

The judges concluded that Anthony has sustained more than “garden variety” damage because of the years of harassment.

“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,” the court declared. “Furthermore, the conduct occurred at his school, in the presence of friends, classmates, other students, and teachers. The jury reasonably could have found that the harassment would have a profound and long-term impact on Anthony's life and his ability to earn a living."

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