noting that acts of discrimination by a school official against a student who is complaining of student-on-student harassment must be considered in determining whether the response of school officials to the harassment was “clearly unreasonable in light of the known circumstances”
How later courts described this case
- noting that acts of discrimination by a school official against a student who is complaining of student-on-student harassment must be considered in determining whether the response of school officials to the harassment was “clearly unreasonable in light of the known circumstances”
- finding there was sufficient evidence that school officials acted unreasonably by not conducting a full investigation into a racial harassment incident
- holding that “only deliberate indifference to such [racial] harassment can be viewed as [intentional] discrimination by school officials themselves”
- “Of course, a showing that the defendant ‘should have known’ can, in some circumstances, create an inference—at least sufficient to raise a genuine issue—that the defendant did know.”
Written by the judges who cited it.
The opinion
Calabresi, Circuit Judge,
concurring:
I concur in the majority’s result and in its opinion. Although I think this is a very close case, in the end I agree that the record does not contain sufficient evidence to overcome a motion for summary judgment on any of Ray Jr.’s claims. I add a few words, however, because there is an aspect of both the Court’s opinion and of Judge Sotomayor’s dissent that — though of no consequence to the resolution of this case, and hence in no way binding — may, if not noted as ^problematical, be taken as a given and cause problems in later cases. Both opinions proceed as if Ray Jr.’s harassment claim and his claim of discrimination in the kindergarten transfer are completely separate and, at least legally, unrelated. Thus, the Court carefully and thoroughly analyzes the evidence for Ray Jr.’s claim of discrimination in the kindergarten demotion and then analyzes the evidence for Ray Jr.’s assertion that school officials were deliberately indifferent to the harassment he suffered at the hands of fellow students and their parents.
In its analysis of the deliberate indifference claim, the majority opinion does not mention the alleged discrimination in the demotion. This presents no problems for me because the Court finds(and I agree) that there is insufficient evidence of discrimination with respect to the demotion to overcome a motion for summary judgment. If, however, we had concluded that such evidence existed (if, in other words, the Court had adopted Judge Sotomayor’s position on the kindergarten transfer claim), the situation would be quite different. In such a case — i.e., where a school official commits, or knows of, a contemporaneous or otherwise related act of intentional discrimination against a student who is complaining of ' student-on-student harassment — it would, I believe, be necessary to consider that act of discrimination as part of the Davis analysis to determine whether the response of school officials to the harassment was “clearly unreasonable in light of the known circumstances.” Davis, 119 S.Ct. at 1674.
Were Mrs. Cronin, for example, to have intentionally discriminated against Ray Jr. in her kindergarten transfer decision (or, indeed, even to have known that someone else intentionally discriminated against Ray Jr. when making such a decision), and had that allegedly discriminatory action occurred in proximity to the harassing behavior that was the source of the Davis-type claim — as in this case it clearly did— that discriminatory action must, I think, be considered part of the “known circumstances” within which the reasonableness of Mrs. Cronin’s response to the harassment is, under Davis, to be judged. If, therefore, I had agreed with Judge Soto-mayor that there is sufficient evidence in the record for a reasonable finder of fact to conclude that Mrs. Cronin intentionally discriminated against Ray Jr. by demoting him to kindergarten, I would — in deciding .whether a jury was to be permitted to find that Mrs. Cronin’s response to the harassment suffered by Ray Jr. was clearly unreasonable — certainly have deemed that intentional discrimination to be part of the circumstances of which she must have been aware.
*151 The two causes of action in this case are not hermetically sealed into different legal compartments. Rather, they arise from the same broad constellation of events, and what we think about one may very well have a determinative effect on what we think of the other. Because I conclude on the evidence before us — and despite some intuitions to the contrary that, however, find no adequate grounding in the record — that neither cause of action can survive summary judgment, I join the opinion of the Court.