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Home / Expert Opinion / Workplace Issues: Racial discrimination in kindergarten

Workplace Issues: Racial discrimination in kindergarten

Lindy Korn

The issue before the Second Circuit here was whether the defendants had qualified immunity to shield them from suit for alleged deliberate indifference to kindergarten and first-grade students’ racial harassment of a classmate in violation of the Equal Protection Clause, DiStiso v. Cook, 10-4304-cv (Aug. 31).

At his deposition, Nicholas (minor plaintiff, 8 years old at deposition, and 5 or 6 when the events took place), testified that “mean kids” at Wakelee called him “bad names,” including  the “N word.” The child could not remember the circumstances under which he was called names or the frequency, nor could he identify any child who had used such racial epithets. His mother testified that he was the only black kid in the kindergarten class.

Nicholas also testified that “mean kids” at Wakelee had punched, pinched and hit him while they were playing, but again he could not recall the name of any child who did so. Nicholas also testified that classmates had thrown juice boxes at him, but he was unable to recall the circumstances or participants. Nicholas did not testify that any of this physical misbehavior was in conjunction with or linked to references of his race.

Nicholas also testified that his first grade teacher, Couture, had pulled him out of his chair, causing him to hit his leg on the desk. She then dragged him across the floor and took him to Principal Cook’s office.

Mrs. DiStiso testified that she reported the name calling to Ms. Uccello, the kindergarten teacher, but acknowledges that she made no mention of specific names Nicholas was being called. She did testify that she complained about the racial epithets that the children called Nicholas, in person. She also testified that she complained to Cook about the verbal and physical taunts, but she did not testify that she ever told Cook that the name calling involved racial epithets.

Mr. DiStiso, who was a Waterbury Police Officer during the time in issue, testified that while Nicholas was in first grade, he sent Couture and Cook various notes, that were blunt in their criticism but did not complain that Nicholas was experiencing racial harassment. On March 12, 2004, Nicholas’ last day at Wakelee, his son came home complaining that his arm, leg and foot hurt because Couture had pulled and dragged him to Cook’s office. Mr. DiStiso contacted the police, reporting a possible assault by the teacher.

The Second Circuit in reliance on Gant ex rel. Gant v. Wallingford Bd. Of Education, 195 F.3d at 140, states that to succeed on a Section 1983 equal protection claim of deliberate indifference to student-on-student racial harassment, well-established law requires a plaintiff to prove (1) that the child in question was in fact harassed by other students based on his race, (2) that such race-based harassment was actually known to the defendant school official, and (3) that the defendant’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 defendant himself intended for the harassment to occur.

The Second Circuit held that neither Uccello nor Cook, whom plaintiff sued for deliberate indifference to racial harassment of Nicholas in kindergarten , (racial name calling), is entitled to qualified immunity on the ground that the harassment demonstrated was insufficiently severe or pervasive to fall within a clearly established right of equal protection.

However, the Second Circuit reverses the district court as to the finding in favor of the defendants as to claims of deliberate indifference to physical behavior, who are entitled to qualified immunity, because no clearly established law permits a finding that these defendants had actual knowledge that commonplace physical misbehavior by children of this age was racially motivated in the absence of some objective evidence connecting the physical misbehavior to the earlier racial name calling.

It is interesting to note that Circuit Judge Pooler, dissented in part, by finding that the kindergarten teacher, Uccello, is not entitled to qualified immunity from liability for deliberate indifference to either the verbal or physical harassment allegedly suffered by Nicholas in kindergarten, because a jury could conclude that the racially-motivated verbal abuse had, at least on one occasion, escalated into a physical assault. That a jury could find that this teacher used her common sense and connected the dots.

A must read decision for any civil rights practitioner!

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at or (716) 856-KORN (5676).