Gant v. Wallingford Board of Education

JACOBS, Circuit Judge:

The complaint in this civil rights action alleges that defendants-appellees the Wall-ingford Board of Education and various employees of the Wallingford School District discriminated against first-grade student Ray Gant, Jr., by demoting him to kindergarten solely by reason of his race. Plaintiffs-appellants Ray Gant, Jr. and his parents Ray Gant, Sr. and Elisa Gant appeal from an order of the United States District Court for the District of Connecticut (Covello, J.) dismissing their complaint in its entirety pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted.1 The dismissal rested on two grounds: first, that the pleading set forth no more than conclusory assertions of racial discrimination and, second, that plaintiffs were deemed to have adopted certain exculpatory statements in a document prepared by the School Superintendent and annexed to the complaint as an exhibit.

Because we believe that under a fair reading the complaint does plead discrimination based upon race, we vacate the order of the district court and remand for further proceedings.

BACKGROUND

When reviewing a district court’s dismissal of a complaint for failure to state a claim, we must assume — strictly for the purposes of appeal — that the facts alleged in the complaint are true. Hartford Fire Insur. Co. v. California, — U.S. —, —, 113 S.Ct. 2891, 2895, 125 L.Ed.2d 612 (1993). At this stage of the litigation, we express no view as to whether the plaintiffs have actually proved those allegations.

According to the complaint, the Gant family moved from Meriden, Connecticut to Wall-ingford, Connecticut during the winter of 1993 and enrolled six-year-old Ray, Jr. in the first grade of Cook Hill Elementary School, a public school in Wallingford. Ray, Jr. was *671the only African-American student in the class. The complaint alleges that “he was subjected to unprovoked and repeated racial slurs, continued taunting and unmitigated harassment by fellow students, as well as by certain parents of students enrolled in Cook Hill.... ” The complaint alleges that school officials, who were at all times acting under color of state law, knew of these acts but took no step to prevent recurrences:

At no time did the defendant Board or any of its individual members, through its officials, servants, agents and/or employees ... ever act to either correct, prevent, stop, warn or reprimand those individuals responsible for said racially biased acts against the plaintiff, despite the fact that the aforedescribed deplorable and discriminatory acts were immediately brought to their specific attention.

Within three days of Ray, Jr.’s arrival, his first grade teacher, defendant-appellee Grace Candido, informed Elisa Gant “that her son could not do the work necessary for successful completion of first grade and, therefore, should immediately be transferred back into kindergarten....” The decision to demote Ray, Jr. was authorized by defendant-appel-lee Patricia Cronin, the school’s principal. The complaint alleges that this step was taken without informing the Gants of the school’s written policy not to demote a student without parental approval:

Without fully explaining the retention policy of the Wallingford Public Schools which required consultation with and approval by the plaintiffs parents, and without the benefit of any testing whatsoever and without explaining any of the other academic alternatives available to the Gants, the principal of Cook Hill, Mrs. Patricia Cronin, who is white or otherwise of non-African American ancestry, authorized the transfer of the plaintiff, Ray, Jr., back to kindergarten.

This language does not foreclose the possibility that there was in fact parental consent; thus, in a studious way, plaintiffs’ lawyer seems to avoid commitment on an issue that is potentially significant.

Strictly for the purposes of reviewing the district court’s dismissal, we must accept the allegation of the complaint that the decision to demote Ray, Jr. was not based on the child’s level of performance and that Ray, Jr. “had the same or similar skill levels” as other students in the first grade. The complaint further alleges that the decision to demote Ray, Jr. was based on racial grounds:

Instead of directly confronting the racially hostile environment which clearly then and there existed at Cook Hill towards the plaintiff, school officials improperly chose to remove the “problem” and/or “blame the victim”, thereby illegally, willfully, intentionally and with reckless disregard of his rights, transfer the plaintiff out of his first grade class back to kindergarten.

These acts and omissions allegedly served to deny “the plaintiff an equal opportunity to participate in the educational activities, programs and courses of study offered to all other students within the first grade.” Ray, Jr. is said to have been harmed in a variety of physical and psychological ways. His parents claim to have suffered compensable “anxiety, stress and apprehension concerning their son’s physical and psychological well-being. ...”

Two exhibits are attached to the complaint: a copy of the Wallingford Public School retention policy (Exhibit A), and a copy of an investigatory report concerning the Gants’ assertions of racial discrimination that was prepared by School Superintendent Joseph Cirasuolo for the Wallingford Board of Education (Exhibit B). Superintendent Cirasuo-lo’s Report (the “Superintendent’s Report”) explains the steps he took to investigate the Gants’ claim, describes the racial incidents and the measures taken by the school, and reaches certain conclusions about what happened and how school personnel performed. The Superintendent’s Report describes the following racially-charged incidents:

School personnel are aware of three (3) instances where Ray was subjected to racial insults.
The first incident occurred while Ray was still in Mrs. Candido’s class. On a day when Mrs. Candido was absent, the substitute teacher heard another student refer to Ray as a “chocolate drop.” When Mrs. Candido received this information, she *672chose to delay action because it was her judgment that reacting to one incident that had been reported to her by a substitute teacher could serve to develop a climate of hostility rather than to remove one. Mrs. Candido never observed herself any instances when Ray was subjected to racial insults and no other instances were ever reported to her.
A second incident occurred while Ray was in Mrs. Roman’s [sic] kindergarten class. This incident was resolved to everyone’s satisfaction including the Gants. Mrs. Romans neither observed nor had reported to her any other such incidents.
A third incident occurred at a bus stop when a parent of another student referred to Ray as a “nigger.” A short time later, the other student used the same term in reference to Ray. The bus driver reported the matter to Mrs. Cronin. The parent involved is a person who has no telephone and who on past occasions has displayed in nonracial ways the same ignorance, intolerance, and belligerency that she displayed during the incident in question. As a result, Mrs. Cronin decided to postpone any attempt to persuade this particular parent that her actions were entirely inappropriate. Mrs. Cronin did ask the bus driver to monitor the situation closely and to report any further incidents.
The bus driver did not observe any further instances that involved racial insults. There were occasions, however, when Ray and other students on the bus did mutually exchange hostile words. This was reported by the driver to Mrs. Cronin and she responded by making it clear to all involved that this behavior would not be tolerated and by separating the bus seats of Ray and the one other student with whom Ray appeared to be having the greatest degree of conflict.

After recounting these incidents, Superintendent Cirasuolo concluded that “[tjhere is no persuasive evidence that supports the allegation that Ray was subjected to constant abuse of a racial nature at Cook Hill.” As to the school’s handling of these incidents and Ray, Jr.’s demotion, Superintendent Cirasuo-lo concluded that “[a]ll available evidence indicates that Ray’s transfer to a kindergarten class was appropriate,” and that “[t]here is no persuasive evidence to support any criticism of how any staff member at Cook Hill addressed this situation.”

The Gants filed their complaint on August 17, 1994. Defendants moved to dismiss the complaint on numerous grounds on September 28, 1994. The district court granted defendants’ motion on November 30, 1994 and entered judgment on December 2, 1994. In doing so, the district court relied heavily upon the Superintendent’s Report. The full text of the district court’s opinion is as follows:

The defendants’ motion to dismiss is granted. “It is well-settled in this Circuit that a complaint, consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Fed.R.Civ.P., Rule 12(b)(6).” Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371, 372 (2d Cir[.] 1978). In this case the complaint itself sets forth only “naked assertions” of racial discrimination. The plaintiffs have appended as an exhibit to their complaint, and thus, under Fed.R.Civ.P., Rule 10(c), incorporated by reference into their complaint, the findings of the investigation of this matter conducted by Superintendent Cirasuolo, concluding that no actions of any school official were motivated by considerations of race. Taken in its entirety, the complaint thus sets forth facts which fail even to suggest racial discrimination. Accordingly, the plaintiffs have failed to allege violations of the Civil Rights Acts and their complaint must be dismissed. It is SO ORDERED.

The Gants filed a motion for reconsideration on December 12,1994. On January 30,1995, the district court granted the motion for reconsideration but denied substantive relief. The Gants did not seek to amend their complaint. This appeal followed.

DISCUSSION

A district court’s grant of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is reviewed de novo on appeal. Grimes v. Ohio Edison Co., 992 F.2d 455, 456 (2d Cir.), *673cert. denied, — U.S. —, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993). “In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts- alleged in the complaint as true and construe all reasonable inferences in plaintiffs favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, — U.S. —, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994). The complaint may be dismissed only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Allen v. West-Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). The issue is not whether a plaintiff is likely to prevail ultimately, “but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.” Weisman v. LeLandais, 532 F.2d 308, 311 (2d Cir.1976) (per curiam) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)). “This standard is applied with even greater force where the plaintiff alleges civil rights violations....” Hernandez, 18 F.3d at 136.

The complaint seeks recovery under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986. The district court, which dismissed the complaint for failure to plead discrimination, • did not consider which of the civil rights statutes might furnish a remedy. We proceed on the assumption that a civil rights violation could be made out under one or more of these civil rights statutes if the complaint contains a sufficient allegation of discrimination.2 In essence, plaintiffs allege that the Wallingford school officials, acting under color of state law, conspired to deprive Ray, Jr. of equal access to education because he is an African-American. In order to survive a motion to dismiss under any of the civil rights statutes invoked, “the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent.” Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir.1994). On appeal, defendants argue that plaintiffs have failed to meet this standard because the complaint alleges no more than that Ray, Jr. is African-American and that defendants and others associated with the school are not.

A. “Naked Assertions”. In dismissing plaintiffs’ complaint, the district court relied on the following passage from Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978) (per curiam): “It is well settled in this Circuit that a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6).” We conclude that, under this standard, the complaint survives scrutiny under Rule 12(b)(6).

The complaint in Martin “stated only that •the defendants had discriminated against [Martin] on the basis of race between August 1974 and June 1975 by denying him the authority, salary, and privileges commensurate with his position.” Id. at 372 (emphasis added). The Gants’ complaint states or can be read to claim that Ray, Jr. “had the same or similar skill levels” as other students in his class, yet was transferred to a lower grade in an effort to allay the racial tension caused by the child’s presence, and that this was done without parental consultation and consent notwithstanding a school policy requiring parental consultation and consent for demotion. At this preliminary stage of proceedings, all one can say is that, if these plaintiffs have capacity and standing to assert these allegations and have the ability to prove them under a statute that grants relief, they will have established liability against a defendant unable to interpose a sufficient defense. But that is enough to defeat the characterization of this discrimination claim as mere “naked allegations.”

*674B. Fed.R.Civ.P. 10(c). Another stated reason for the district court’s dismissal of this claim is that “plaintiffs have appended as an exhibit to their complaint” the Superintendent’s Report, and that by so doing the plaintiffs necessarily incorporated the report into their complaint in such a manner as to accept all statements in it as true, including the exculpatory conclusions. As the district court thus read the complaint, the Gants affirmatively pleaded and adopted the following conclusions of the Superintendent’s Report, thereby contradicting and defeating their own claim:

There is no persuasive evidence that supports the allegation that Ray was subjected to constant abuse of a racial nature at Cook Hill. No pattern of this type was observed by school staff nor was any reported during the school year. Ray’s reluctance to attend school, which reluctance has been attributed to his being taunted on a regular basis, appear[s] to have disappeared as soon as he was transferred to kindergarten.
All available evidence indicates that Ray’s transfer to a kindergarten class was appropriate.
There is no persuasive evidence to support any criticism of how any staff member at Cook Hill addressed [the racial] situation.

The Superintendent’s Report also states that Ray, Jr. was struggling academically while in the first grade both in the Meriden school system and in Wallingford, which contradicts the express allegation of the complaint that Ray, Jr. “had the same or similar skill levels” as the other first graders. Clearly, if these conclusions and statements are deemed to be part of the complaint, the Gants would be unable to sustain their lawsuit. We conclude, however, that the district court misapplied Fed.R.Civ.P. 10(c). Rule 10(c) states:

(c) Adoption by Reference; Exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

Thus, “[a]lthough a court considering a motion to dismiss for failure to state a claim is limited to the facts stated in the complaint, the complaint includes any written instrument attached to it as an exhibit and any statements or documents incorporated into it by reference.” Paulemon v. Tobin, 30 F.3d 307, 308-309 (2d Cir.1994); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992).

Both the district court and the defendants assume that Rule 10(c) requires a plaintiff to adopt as true the full contents of any document attached to a complaint or adopted by reference. This is not a proper reading of the rule. Courts have found that, “[i]f the appended document ... reveals facts which foreclose recovery as a matter of law, dismissal is appropriate,” Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974) (prospectus attached to complaint alleging bond purchase based on material misrepresentations). An appended document will be read to evidence what it incontestably shows once one assumes that it is what the complaint says it is (or, in the absence of a descriptive allegation, that it is what it appears to be). For example, a written contract appended to the complaint will defeat invocation of the Statute of Frauds, and a document that discloses what the complaint alleges it concealed will defeat the allegation of concealment. By the same token, however, a libel plaintiff may attach the writing alleged in the complaint to be libelous without risk that the court will deem true all libels in it. Similarly, a receipt for goods, alleged in the pleading to have been forged, may or may not evidence forgery on its face, but it does not concede delivery of goods for pleading purposes.

The Superintendent’s Report is referenced as follows in the complaint: “The defendant, Dr. Joseph Cirasuolo in his administrative capacity adopted, approved and/or ratified the actions and/or omissions of the defendants, Grace Candido and Patricia Cronin. (Refer to Exhibit B attached.)” What is the import of attaching Exhibit B? Al*675though attached to show Cirasuolo’s adoption, approval or ratification of wrongdoing, it does not (in itself) do so, if only because it concludes that no wrong was done. Under Rule 10(c), if we assume that the document is what it is alleged and purports to be, it would effectively refute any (hypothetical) allegation that Cirasuolo prepared no report, or prepared one that admitted wrongdoing on behalf of the school district. But Exhibit B does not bear the weight placed on it by the district court: it does not establish, simply by being what it is, that the school personnel acted properly. Given the allegations of the complaint that we must accept as. true, the Gants have invited us to read Exhibit B as a self-serving document rather than a particularization of their claim. It was therefore error for the district court to assume that plaintiffs’ complaint adopted the Superintendent’s exculpatory conclusions. Cf. Rose v. Bartle, 871 F.2d 331, 340 n. 3 (3d Cir.1989) (discussing the inapplicability of Rule 10(c) to affidavits).

C. Discretionary Powers. Relying on Johnpoll v. Elias, 513 F.Supp. 430 (E.D.N.Y.1980), defendants contend on appeal that issues of student placement are left solely to the discretion of school officials, and that nothing in the Constitution grants anyone an “interest in the transfer of a student from first grade to kindergarten.” The complaint in Johnpoll alleged that the student’s due process rights were violated by placement in an inferior school that would stunt his emotional development. Acting on the student’s behalf, his father brought suit seeking a preliminary injunction directing the New York City Board of Education to transfer the boy to a school of the student’s choosing.

The Johnpoll court acknowledged that “once a state like New York chooses to provide public education, ... the right to an education ‘must be made available to all on equal terms,’ ... and this property interest cannot be denied without certain minimum procedures required by the Due Process Clause.” Id. at 431 (quoting Brown v. Board of Education 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1953)). However, the Johnpoll complaint did not allege that the placement decision was made on unequal or impermissible terms, or without due process of law. In rejecting the claim, the Johnpoll court found that the case did not

present a situation [in which plaintiff has] ... been denied his right to education. He can receive an education at [the school selected by the Board of Education], Merely because Joseph is not being permitted to attend the school of his choice is not tantamount to a denial of a right to an education.... With all due respect to the plaintiffs parental concern, this court cannot be used as a vehicle to review fundamental administrative decisions such as student placement.

513 F.Supp. at 431-32. We have no occasion to endorse or reject the reasoning of John-poll, because that case is easily distinguishable from the appeal before us, in which the complaint essentially pleads an equal protection claim based on a short and direct chain of causation between Ray, Jr.’s race and his pedagogically unjustified demotion.

Although few adults will be able to recall the curriculum at each level of primary education, kindergarten differs substantially from first grade. For one thing, as confirmed at oral argument and in the briefs, kindergarten meets for only part of the school day. In the absence of a record on this subject, we have no difficulty accepting the idea that a student who has mastered kindergarten will learn less by repeating it than by being promoted to the next grade. Demotion, even at this rudimentary stage of education, may permanently delay the student’s ultimate academic goals. We reject defendants’ suggestion that a school’s decision to make such a transfer based on a student’s race (as alleged here) is unreviewable by the federal courts.

CONCLUSION

The district court’s judgment is vacated and the case remanded for further proceedings. We offer no opinion as to the merits of defendants’ numerous alternative arguments for dismissal of the complaint raised in their original motion to dismiss and not yet considered by the district court.

. The district court dismissed plaintiffs’ claims under the civil rights laws pursuant to Rule 12(b)(6). Plaintiffs’ state law claims were premised on pendent jurisdiction.

. Defendants moved to dismiss on a number of alternative grounds. The district court did not address these alternative grounds, and we offer no opinion concerning their merits. We note, however, that (a) Ray Gant, Jr. obviously lacks capacity to sue; (b) his parents do not plead that they are suing on his behalf or as his next friend; and (c) the parents' claim is subject to scrutiny on the grounds identified in the dissent. On remand, jurisdiction should be addressed promptly and, if necessary and possible, repaired.