Law & School: Schools can be held liable when students use racial slurs?

August 29, 2012

School Law(Editor’s note: With August being the “back to school” month for everyone from preschoolers to law students, we’ll be looking at recent important developments in education law throughout the month.)

You can read the first week’s post about the unconstitutional high school graduation practices in church here.

You can read the second week’s post about the legal liability for school bullying here.

You can read the third week’s post about affirmative action at the Supreme Court here.

You can read the fourth week’s post on legal liability for student sexual abuse of other students here.

Our monthly theme on education law has seemingly turned into a discussion on who’s liable for the misconduct of students.

This last entry, which addresses the question of who is assigned liability for students’ using racial epithets against another student, seems to solidify that transformation.

This may seem very similar to the second post this month on legal liability for bullying.

Indeed, they are very similar in that they are both defined by one or more students singling out another for harassment.

When this harassment takes on a racial element, however, a host of legal implications arise.

These implications stem from  42 U.S.C. § 1983, which provides a private civil action against the deprivation of a federally-recognized right by a state actor.

Which “federally-recognized right” is being deprived when a student hurls racial epithets at another student?

There are several different case law and statutorily-based theories to go off of here, but they all spring from the equal protection clauses for the Fifth and Fourteenth Amendments to the U.S. Constitution.

But what about the “state actor” requirement?  Since when are public school students state actors?

Well, they aren’t; only school employees are.

And, unfortunately for both them and the school district itself, “well-established case law” has assigned to them liability in certain circumstances, even when neither were directly responsible for the student behavior in question.

If a school official is determined to be “deliberately indifferent” to the racial harassment, then liability attaches.

“Deliberate indifference” is found when a school official had “actual knowledge” of the race-based harassment by students, and the official’s response to such harassment was so “clearly unreasonable in light of the known circumstances” as to give rise to a reasonable inference that the official himself intended for the harassment to occur.

Although “knowledge” is normally a tricky thing to pin down in legal contexts because of the many different meanings, “actual knowledge” is the most straightforward.

It’s just what it sounds like: someone actually knew of something.

The second bit of legalese – “clearly unreasonable in light of the known circumstances” – is a little harder to pin down and sensitive to the particular facts of a case.

So, an illustration would be helpful.

Luckily, the U.S. Court of Appeals for the Second Circuit just ruled last week on a case involving just this set of facts.

The case, DiStiso v. Cook, involved a student who was subjected to racial slurs by classmates starting in kindergarten and allegedly lasting until he was pulled out of school by his parents at the end of his first-grade year.

The student’s parents repeatedly notified the school principal and the student’s teacher about the harassment, but no one at the school did anything about it.

A complete lack of action could rise to the required level of “deliberate indifference,” but there was also some evidence of racial animus on the part of the school officials themselves in the DiStiso case (one more notable instance being when the student’s kindergarten teacher took the student’s yellow crayon and replaced it with a brown crayon when the student had been coloring a figure that was supposed to be himself).

Thus, the appeals court ended up ruling for the plaintiffs.

However, the appeals court wasn’t deciding the substantive issue of the plaintiffs’ § 1983 claims, but instead was evaluating the defendants’ summary judgment motion and qualified immunity claims, which, thanks to a 1971 U.S. Supreme Court case, requires the court to look at whether a jury could return a finding in favor of the plaintiffs.

Regardless, though, the ruling laid out the roadmap to establishing legal liability against a school when a student is a victim of racially charged harassment by other students.

So, the lesson to school officials from this case and other circumstances discussed earlier this month:

If you witness student misdeeds, do something about it, because, if you don’t, there’s a good chance that you and the school district could be legally liable.

Of course, if school officials actually care about performing their duties to the best of their ability, legal liability should be the secondary motivator to taking action.