ALBANY, N.Y., Aug 21 (Reuters) - (Note: Racial slurs in
Parents of a biracial boy can move forward with claims against
educators they accused of standing by while white students
hurled racial epithets at their 5-year-old, a federal appeals
court ruled Tuesday.
Robin and Philip DiStiso claimed that two teachers and a
principal at the Wakelee School in Wolcott, Connecticut, should
have prevented the students from calling their son " nigger" and
"blackie." They also said educators, who they claim were told
about the alleged verbal abuse, should have known that
subsequent alleged physical attacks were racially motivated.
The 2nd Circuit Court of Appeals on Tuesday said the DiStisos
could proceed with deliberate indifference claims relating to
the alleged verbal abuse.
But the panel said the educators had qualified immunity with
respect to the physical abuse claims.
"There is no basis in established law for inferring that a
teacher who receives complaints as to the racial motivation for
name-calling) has actual knowledge that (a subsequent physical
attack) is similarly motivated," Circuit Judge Reena Raggi wrote
for the court. She was joined by Judge Joseph McLaughlin.
The DiStisos claimed their son was verbally harassed on at
least 15 occasions in 2002 and 2003. The alleged harassment
started when the boy was in kindergarten and continued into
first grade, they said.
The parents said the boy frequently came home from school
with bruises and stories about being slapped or punched. They
claimed the physical abuse was racially motivated.
In 2010, the DiStisos sued John Cook, the school's former
principal, and the boy's kindergarten and first-grade teachers,
Jacquelyn Uccello and Tammy Couture, for deliberate
The educators moved for summary judgment, saying they had
Judge Vanessa Lynne Bryant last year denied the motions.
The Second Circuit on Tuesday reversed in part, finding there
was no direct evidence that the alleged physical attacks were
anything more than common schoolyard scuffles. The court said
the teachers could not have been expected to link the alleged
physical abuse to the alleged race-based name-calling.
Raggi said that the trial court had incorrectly inferred
that a school official's knowledge of "initial race harassment
is enough, by itself, to permit a finding of his actual
knowledge that any further misbehavior was also racially
motivated." That error, she said, went against the 2nd Circuit's
ruling in the 1999 case Gant v. Wallingford Board of Education.
"This mistakenly transformed the actual knowledge requirement
established by Gant into an imputed knowledge requirement, and
imputed knowledge is insufficient as a matter of law to support
a claim for deliberate indifference," Raggi wrote.
The panel kicked the case back to the District Court in
Connecticut for further proceedings on the verbal harassment
Dissenting in part, Circuit Judge Rosemary Pooler said it
was for a jury, not the court, to determine whether the
defendants should have connected the alleged verbal and physical
William Palmieri, who represents the DiStisos, said his
clients are still considering whether to appeal the court's
ruling on the physical abuse claims.
Michael Rose, who represents the defendants, said he had not
yet discussed the possibility of an appeal with his clients. He
also said that as a result of Tuesday's decision, he is
concerned about the "responsibilities being placed" on public
administrators by the courts.
The case is Robin DiStiso v. John Cook, et al, United States
Court of Appeals for the Second Circuit 10-4304-cv.
For DiStiso: William Palmieri.
For the defendants: Johanna Zelman and Michael Rose of Rose
(Reporting by Dan Wiessner)
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